Recovery From Bag, Not Person: Supreme Court Upholds Opium Conviction Despite Seized Contraband Not Being Produced

On 10.04.2004 a police party intercepted the appellant and another accused, who turned back on seeing them while carrying a bag (para 2). Told of her right to be searched before a Gazetted Officer or Magistrate, the appellant chose a Gazetted Officer; a DSP came, and the bag was found to contain 6 kg 300 g of opium (para 2). The trial court convicted her under Section 18 and the High Court confirmed the conviction (para 1). Before the Supreme Court she argued that the DSP was shown elsewhere at the same time, that the contraband was never produced, that Section 50 applied because she was also searched, and that no independent witness was joined (paras 4-8).

A three-judge bench in Baljinder Singh, drawing on the Constitution Bench in Baldev Singh, held Dilip incorrect; SK. Raju appears not to have been placed before that bench (paras 19-21). Nothing was recovered in the personal search here, and for a recovery from a bag Section 50 compliance is settled to be unnecessary (para 21). On non-production, Jitendra, Ashok, Gorakh Nath Prasad and Vijay Jain each turned on further defects such as hostile panch witnesses, unexplained custody or no link between the forensic report and the seizure (paras 22-25). Sahi Ram held that if the seizure is otherwise proved, the entire contraband need not be produced; what must be proved is that the samples and seals were intact and the forensic report shows the nature of the substance (para 29). The point was not raised before the trial court or the High Court, the sample was produced, and no tampering with the seal was alleged (para 30). Two courts had trusted the prosecution witnesses on the absence of independent witnesses (paras 32-33), and any doubt over the DSP's presence did not matter as the recovery was from the bag (para 34).