A two-judge Bench of Justice Indira Banerjee and Justice JK Maheshwari has held that merely because the prosecution did not examine any independent witness in the case would not necessarily lead to a conclusion that the accused was falsely implicated.

The Court also held that under the provisions of the Narcotic Drugs and Psychotropic Substance Act (NDPS Act) the question of ownership of the vehicle from where the contraband was seized was not relevant and was immaterial.

Senior Counsel Mr. C.N. Srieekumar appeared for the Appellant-accused before the Court.

An appeal was preferred by the Appellant-Accused assailing the judgment of the Rajasthan High Court at Jaipur which had affirmed the order passed by the Special Judge (NDPS), Jhalawar, Rajasthan.

The Special Judge had convicted the Appellant under Section 8 & 21 of the NDPS Act and sentenced the latter to undergo rigorous imprisonment of 10 years along with a fine of Rs. 1, 00, 000. The High Court while affirming the order had reduced the default sentence from 2 years to 1 year.

In this case, the Appellant-Accused was apprehended by the police officials while he saw the latter patrolling the area while he was on his vehicle. In an enquiry about his behavior, the Appellant did not give a satisfactory reply for which the PW1 was asked to arrange an independent witness for the search of the accused and also of the motorcycle which he was riding. However, PW1 failed to get an independent witness. Subsequently, PW6 obtained consent from PW2 and PW8 and made them witness for the search of the vehicle.

During the personal search of the Appellant-Accused, no incriminating substance was recovered from him, while in the search of motorcycle, a bag was recovered from the seat of the vehicle which contained smack and weighed about 900gms.

It was contended by the Appellant before the Supreme Court that the search and seizure were conducted by an authorized officer with the help of police witnesses without having any independent witness.

It was further argued that the procedure of search and seizure as contemplated under Section 50(1) of the NDPS Act was not followed. The ownership of the vehicle was not of the accused, however, the link of the vehicle in the commission of the offence with the accused was missing.

The contraband article was also not produced before the Court during evidence, argued the Appellant.

While the Respondent-State argued that it was not a case based on the recovery of contraband from a personal search of the accused but recovery from the motorcycle (vehicle used in the commission of the offence). Hence, the mandatory compliance of Section 50 of NDPS did not attract in this case.

Further the Respondent pleaded that merely because an independent witness was not examined by the prosecution it would not mean that the accused was falsely implicated.

The Apex Court observed that since the search and seizure were made from the vehicle as a chance recovery made on the public road, the provisions of Section 43 of NDPS Act would apply.

  • Appellant's contention – Vehicle not of the Accused

In this context, the Court noted –

"The testimony of witnesses, Constable Preetam Singh (PW1), Constable Sardar Singh (PW2), S.I. Pranveer Singh (PW6) and Constable Rajendra Prasad (PW8), who were members of the patrolling team and the witnesses of the seizure, proved beyond reasonable doubt."

Further, the Bench opined, "Recovery of the contraband from the motor cycle of the appellant was a chance recovery on a public road. As per Section 43 of NDPS Act, any officer of any of the departments, specified in Section 42, is having power of seizure and arrest of the accused from a public place, or in transit of any narcotic drug or psychotropic substance or controlled substance."

"The seizure of the motor cycle from him is proved beyond reasonable doubt, therefore, the question of ownership of vehicle is not relevant," the Court held.

  • Non-Production of Contraband

The Bench made a reference to the case of State of Rajasthan vs. Sahi Ram, where it was held that when the seizure of material is proved on record and is not even disputed, the entire contraband material need not be placed on record.

In this context, the Court also added that the Appellant had failed to show the findings recorded by two Courts suffer from any perversity or illegality on the said issue.

  • Non-Compliance of Section 50 of NDPS Act

In this regard, the Court noted –

"The arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily."

The Bench also held that in this case, in the search of the motorcycle at a public place, the seizure of contraband was made, therefore, compliance of Section 50 did not attract.

The Court additionally made a reference to the precedent Vijaysinh Chandubha Jadeja vs. State of Gujarat, where it was held that in the case of the personal search only, provisions of Section 50 NDPS Act would apply.

  • Conviction solely on the basis of police witnesses and not independent witness

In this context, the Bench observed, "Merely because independent witnesses were not examined, the conclusion could not be drawn that accused was falsely implicated."

"When the conduct of the accused was found suspicious and a chance

recovery from the vehicle used by him is made from public place and proved beyond reasonable doubt, the appellant cannot avail any benefit on this issue," the Court opined.

In the light of these observations, the Court dismissed the appeal with a finding that as the Appellant had already served the sentence of 10 years awarded and was released after the deposit of the amount of fine, hence no further directions were required to be issued.

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