Judgment Intelligence
Conviction Set AsideAshok @ Dangra Jaiswal v. State of M.P.
Criminal Appeal No. 1438 of 2008; reported as (2011) 5 SCC 123
- Court
- Supreme Court of India
- Date of Decision
- 5 April 2011
- Bench
- Justices Aftab Alam and R.M. Lodha
- Relevant Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 8, 21(b)
Final Outcome
The appeal was allowed. The convictions and sentences of the appellant and of the two co-accused who had not appealed were set aside, and all three were to be released forthwith unless required in another case (paras 15-17).
Key holdings
- Seizure witnesses turning hostile is not by itself very significant in NDPS cases, but together with other lapses it can make a conviction unsafe (para 9).
- Unexplained gaps in the custody of the samples before they reached the laboratory, and of the seized substance before it reached the Malkhana, weakened the prosecution (paras 10-11).
- Unexplained non-production of the seized narcotic as a material exhibit left no evidence connecting the forensic report with the substance seized (para 12).
- Jitendra v. State of M.P. applied with full force; the appellant was given the benefit of doubt and acquitted (paras 13-15).
- The benefit was extended to the two co-accused who had not appealed, because the same lapses applied equally to them (para 16).
Brief Facts
On March 8, 2005 a Town Inspector received information that the appellant, owner of a cinema hall, was selling smack powder from it (para 2). His personal search yielded three packets weighing 175 grams; two samples of five grams each were taken (para 2). Two of his employees were searched too, and 100 grams and 35 grams were recovered (para 3). The FSL report confirmed diacetylmorphine (heroin) (para 4). The trial court convicted all three under Sections 8/21(b) of the NDPS Act; the appellant got seven years' rigorous imprisonment and a fine of Rs.25,000 (paras 1, 4). The High Court dismissed his appeal on April 17, 2008, and he alone appealed further (paras 5-6).
Court's Findings
Both independent seizure witnesses turned hostile, so the courts below relied on the officer who led the raid (para 8). That alone "may not be very significant" in NDPS cases, but other circumstances, taken together, made it "very unsafe to uphold" the conviction (para 9). The samples sent to the laboratory on March 10 came back to the police station because of a mistake or query in the draft and were deposited only on March 14; "it is not clear where the samples were laid or were handled by how many people and in what ways" (para 10). The seized substance reached the Malkhana on May 28, 2005, about two months after the charge-sheet, with no explanation of where it had been (para 11). Finally, the powder was never produced before the trial court as a material exhibit, and its non-production was not explained either (para 12). In Jitendra, on similar facts, the Court had held it unsafe to maintain the conviction; that decision applied "with full force" (paras 13-14). The appellant was entitled to the benefit of doubt (para 15).
Legal Principle
When seizure witnesses turn hostile, the custody of the samples and of the seized bulk is unexplained, and the seized narcotic is never produced at trial as a material exhibit, nothing connects the forensic report with the substance seized, and the accused gets the benefit of doubt (paras 9-12, 15).
Precedents Relied Upon
- Jitendra and another v. State of M.P. (2004) 10 SCC 562
Where the panch witnesses turned hostile and the seized charas and ganja were never produced at trial to connect them with the samples sent to the laboratory, it was unsafe to maintain the NDPS conviction; applied here with full force.
- Raja Ram and others v. State of M.P. (1994) 2 SCC 568
Cited for extending the benefit of an acquittal to co-accused who had not appealed.
- Dandu Lakshmi Reddy v. State of A.P. (1999) 7 SCC 69
Cited for extending the benefit of an acquittal to co-accused who had not appealed.
View all precedents (6)
- State of Haryana and others v. Sumitra Devi and others (2004) 12 SCC 322
Cited for extending the benefit of an acquittal to co-accused who had not appealed.
- Mangoo v. State of M.P. (2008) 8 SCC 283
Cited for extending the benefit of an acquittal to co-accused who had not appealed.
- Bachan Singh v. State of Bihar (2008) 12 SCC 23
Cited for extending the benefit of an acquittal to co-accused who had not appealed.
