When the trial court which is in possession of the case records recorded a finding that there is no order of the Magistrate showing the production of the contraband before the 8 court and acquitted the accused on that basis, in our view, the High Court ought not to have interfered with the said order of acquittal.= while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 9 (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” The same principles were reiterated in number of judgments viz. Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297, State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529, Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690, Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments.= Considering the case in hand, the findings of the trial court cannot be said to be ‘distorted conclusions’ warranting interference. Based on the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under Section 18 of the NDPS Act cannot be sustained.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2182 OF 2010
MOHINDER SINGH …Appellant
Versus
THE STATE OF PUNJAB …Respondent
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated 30.06.2010
passed by the High Court of Punjab and Haryana at Chandigarh in
Criminal Appeal No.199-DBA of 2002 in and by which the High
Court reversed the judgment of acquittal of the appellant/accused
and convicted him under Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him
to undergo ten years imprisonment.
2. Briefly stated case of the prosecution is that on 30.04.1998,
Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along
with other police officials was checking the vehicles on the bridge of
1
Gill Canal towards the side of village Gill. Meanwhile, at about
7.00-7.30 pm, appellant Mohinder Singh came on his
scooter No.PB-10B-2413. A signal was given to stop the scooter
and the appellant/accused stopped his scooter. It was suspected
that some contraband substance was being carried in the bag.
Appellant/accused was informed of his right of search before a
Gazetted Officer or a Magistrate. Joginder Singh (PW-2) called
Gurjit Singh, DSP (PW-4) and the bag carried by the
appellant/accused was searched in his presence and the substance
bag was found to be “opium”. On weighment, it was found to be 7
kilos and 40 gms. Two samples from the recovered “opium”, each
weighing 20 gms were taken and sealed separately having
monogram ‘JS’ and ‘GS’ and taken into possession vide recovery
memo Ext.-PE. Case property along with two samples was
deposited with Baldev Singh MHC (PW-5). Next day i.e. on
01.05.1998, the case property as well as the sample parcels were
produced before the Area Magistrate who is said to have initialled
the case property and the sample parcels. The sample parcels
were sent to Forensic Science Laboratory (FSL) and subjected to
chemical analysis and the contents were found to be “opium” in FSL
report vide Ext.-P1. After completion of the investigation, charge
sheet was filed against appellant under Section 18 of the NDPS Act.
2
3. To prove the guilt of the accused, the prosecution has
examined Constable Hardev Singh (PW-1), SI Joginder Singh
(PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and
Baldev Singh, MHC (PW-5). The appellant was examined under
Section 313 Cr.P.C. to explain the incriminating evidence
circumstance appearing in the prosecution evidence and he denied
all of them.
4. The trial court acquitted the appellant inter alia on the ground
that there was non-compliance of Section 50 of the NDPS Act. The
trial court further held that no order of the Magistrate was proved to
show that the case property was produced before the court, was
brought in evidence to show that the seal of the sample sent to FSL
tallied with the seal of the contraband, and it cannot thus be said
that the evidence regarding such production of case property before
the Magistrate was trustworthy. Being aggrieved by the acquittal,
the State has preferred appeal before the High Court.
5. Placing reliance upon State of Punjab v. Baldev Singh
(1998) 2 SCC 724, the High Court held that recovery of contraband
from a bag/attache which the accused was carrying in his hands,
would not amount to search of person and as such Section 50 of
the NDPS Act will not apply. Based on the evidence of SI Joginder
3
Singh (PW-2) and Harbhajan Singh (PW-3), the High Court held
that the case property parcels of the samples and the samples
having the seals of ‘JS’ and ‘GS’ were duly produced before the
Magistrate and on those findings, the High Court reversed the order
of acquittal and convicted the appellant under Section 18 of the
NDPS Act and sentenced him to undergo ten years imprisonment.
Being aggrieved, the appellant/accused has preferred this appeal.
6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia
submitted that since the contraband alleged to have been seized
from the accused was not produced before the trial court, conviction
of the appellant cannot be sustained. Learned counsel for the
appellant placed reliance upon Ashok alias Dangra Jaiswal v.
State of Madhya Pradesh (2011) 5 SCC 123 to contend that where
the narcotic drug or the psychotropic substance seized from the
possession of the accused is not produced before the Magistrate
and when there is no evidence to connect the forensic science
report with the drug or the substance that was seized from the
possession of the accused in such a case the conviction of the
appellant/accused is not sustainable.
4
7. Learned counsel for the State has submitted that from the oral
evidence of SI Joginder Singh (PW-2) and ASI Harbhajan Singh
(PW-3), the production of the contraband seized from the accused
before the court has been proved by the prosecution. It was
submitted that the evidence and materials on record amply proves
the production of the contraband along with the sample packets
before the Magistrate. It was submitted that the trial court was not
right in acquitting the accused and the High court rightly set aside
the acquittal and the impugned judgment does not warrant any
interference.
8. We have considered the submissions and perused the
impugned judgment, evidence and other materials on record. We
have also taken pains to look into the original records that were
called for from the trial court.
9. On behalf of the appellant, contention was raised as to the
non-compliance of Section 50 of the NDPS Act to submit that the
safeguards stipulated under Section 50 were not complied with. In
the present case, the appellant was carrying the contraband-about
seven Kilos of “opium” in the bag which he was carrying in the
scooter. Carrying the contraband in the scooter/bag cannot be said
5
to be ‘by the person’ necessitating compliance of Section 50 of the
NDPS Act for personal search. Reference in this regard can be
made to the decision in State of H.P. v. Pawan Kumar (2005) 4
SCC 350.
10. So far as the contention regarding production of the
contraband seized from the accused, in his evidence, Harbhajan
Singh (PW-3) stated that on 01.05.1998, he produced the sample
parcels and the case property parcels with the seal and the sample
seals before the Judicial Magistrate, Ludhiana and the Magistrate
has recorded the seals tallied with the specimen impression.
Harbhajan Singh (PW-3) further stated that after return of the
samples and the parcels from the court, the same were lodged by
him to the Malkhana on 01.05.1998 itself. Baldev Singh (PW-5) the
then Malkhana in charge though orally stated about the deposit of
the contraband in the Malkhana, but Baldev Singh (PW-5) has not
produced Register No.19 maintained in the Malkhana to show the
relevant entry in Register No.19 as to deposit of the case property in
the Malkhana. Oral evidence of Harbhajan Singh (PW-3) and
Baldev Singh (PW-5) as to the deposit of the contraband seized
from the accused with Malkhana is not corroborated by the
documentary evidence namely the entry in Register No.19.
6
11. After referring to the oral evidence of Joginder Singh (PW-2)
and Harbhajan Singh (PW-3), the trial court in para (14) of its
judgment has recorded the finding that no order of the Magistrate to
prove the production of the contraband before the Magistrate was
available on the file. After recording such observation, the trial court
held that the oral evidence regarding production of the case
property before the Magistrate was not trustworthy and not
acceptable. In the absence of the order of the Magistrate showing
that the contraband seized from the accused was produced before
the Magistrate, the oral evidence adduced that the contraband was
produced before the Magistrate cannot form the basis to record the
conviction.
12. For proving the offence under the NDPS Act, it is necessary
for the prosecution to establish that the quantity of the contraband
goods allegedly seized from the possession of the accused and the
best evidence would be the court records as to the production of the
contraband before the Magistrate and deposit of the same before
the Malkhana or the document showing destruction of the
contraband.
13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC
527, this Court reiterated the necessity of production of contraband
7
substances seized from the accused before the trial court to
establish that the contraband substances seized from the accused
tallied with the samples sent to the FSL. It was held that mere oral
evidence to establish seizure of contraband substances from the
accused is not sufficient. It was held as under:-
“10. On the other hand, on a reading of this Court’s judgment in
Jitendra v. State of M.P. (2004) 10 SCC 562, we find that this Court
has taken a view that in the trial for an offence under the NDPS Act,
it was necessary for the prosecution to establish by cogent
evidence that the alleged quantities of the contraband goods were
seized from the possession of the accused and the best evidence
to prove this fact is to produce during the trial, the seized materials
as material objects and where the contraband materials alleged to
have been seized are not produced and there is no explanation for
the failure to produce the contraband materials by the prosecution,
mere oral evidence that the materials were seized from the
accused would not be sufficient to make out an offence under the
NDPS Act particularly when the panch witnesses have turned
hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123, this
Court found that the alleged narcotic powder seized from the
possession of the accused was not produced before the trial court
as material exhibit and there was no explanation for its nonproduction
and this Court held that there was therefore no evidence
to connect the forensic report with the substance that was seized
from the possession of the appellant.”
14. The High Court appears to have gone by the oral evidence of
Joginder Singh (PW-2) and Harbhajan Singh (PW-3) that the
contraband allegedly seized from the accused was produced before
the Magistrate. When the trial court which is in possession of the
case records recorded a finding that there is no order of the
Magistrate showing the production of the contraband before the
8
court and acquitted the accused on that basis, in our view, the High
Court ought not to have interfered with the said order of acquittal.
15. In an appeal against acquittal, the High Court will not interfere
unless there are substantial and compelling reasons to reverse the
order of acquittal. The mere fact that on reappreciation of evidence
the appellate court is inclined to arrive at a conclusion which is at
variance with the trial court, the same cannot be the reason for
interference with the order of acquittal. After referring to various
judgments in Chandrappa and others v. State of Karnataka
(2007) 4 SCC 415, this Court summarised the general principles
regarding the powers of the appellate court while dealing with an
appeal against the order of acquittal and held as under:-
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”, “very
strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of “flourishes of
language” to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the
court to review the evidence and to come to its own
conclusion.
9
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed
and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court should
not disturb the finding of acquittal recorded by the trial court.”
The same principles were reiterated in number of judgments viz.
Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297,
State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC
529, Bhaskar Ramappa Madar and others v. State of Karnataka
(2009) 11 SCC 690, Chandrappa and others v. State of
Karnataka (2007) 4 SCC 415 and other judgments.
16. Considering the case in hand, the findings of the trial court
cannot be said to be ‘distorted conclusions’ warranting interference.
Based on the oral evidence of Joginder Singh (PW-2) and
Harbhajan Singh (PW-3), the High Court ought not to have
interfered with the order of acquittal and the conviction of the
appellant under Section 18 of the NDPS Act cannot be sustained.
17. In the result, the conviction of the appellant under Section 18
of the NDPS Act and the sentence of imprisonment imposed on him
10
is set aside and this appeal is allowed and the appellant is acquitted
of the charge.
.…….……………………J.
[RANJAN GOGOI]
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[NAVIN SINHA]
New Delhi;
August 14, 2018
11