Supreme Court Upholds Conviction Under NDPS Act Despite Discrepancies: Than Kunwar vs. State of Haryana (2020)

Date of the Judgment: 02 March 2020

Citation: (2020) INSC 179

Judges: Ashok Bhushan, J., K.M. Joseph, J.

Can a conviction under the NDPS Act be upheld when there are inconsistencies in the prosecution’s evidence, specifically regarding the presence of a Gazetted Officer during a search and the non-production of the seized contraband in court? The Supreme Court of India addressed this critical question in the case of Than Kunwar vs. State of Haryana. The Court examined whether minor discrepancies in witness testimonies and the non-production of the contraband are sufficient grounds to overturn a conviction under the NDPS Act. The judgment was delivered by a two-judge bench comprising Justice Ashok Bhushan and Justice K.M. Joseph, with the majority opinion authored by Justice K.M. Joseph.

Case Background

On April 10, 2004, ASI-PW7 and other police officers noticed the appellant, Than Kunwar, and another individual carrying a bag. Upon seeing the police, the two individuals turned and began walking quickly, raising the suspicion of the police. The police intercepted them and, suspecting the bag contained narcotics, informed them of their right to have the search conducted in the presence of a Gazetted Officer or Magistrate. The appellant opted for a Gazetted Officer. A DSP arrived at the scene, and under his direction, the bag was searched. It was found to contain 6 kilograms and 300 grams of opium. Samples were taken, and a formal FIR was registered. After receiving the FSL report and completing the investigation, a charge sheet was filed. The prosecution presented eight witnesses. The appellant denied the charges during questioning under Section 313 of the Code of Criminal Procedure. The High Court upheld the appellant’s conviction.

Timeline

Course of Proceedings

The Trial Court convicted the appellant under Section 18 of the NDPS Act. The High Court affirmed the Trial Court’s judgment, upholding the conviction.

Legal Framework

The case primarily revolves around Section 18 of the NDPS Act, which pertains to offenses related to the possession of opium. The judgment also discusses Section 50 of the NDPS Act, which outlines the conditions under which searches of persons must be conducted. It also mentions Section 313 of the Code of Criminal Procedure, which allows the accused to explain incriminating circumstances.

Section 18 of the NDPS Act states:

“18. Punishment for contravention in relation to opium poppy and opium.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,—

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

Section 50 of the NDPS Act states:

“50. Conditions under which search of persons shall be conducted.—(1) If an officer duly authorised under section 42 has reason to believe that any person is liable to arrest or has in his possession any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed, he may, if he deems it necessary, search such person.

Provided that if such officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate, he can search the person after recording the grounds for such belief.

(2) No female shall be searched by anyone except a female.

(3) Every person to be searched under this section shall, if he so requires, be taken without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(4) If such requisition is made, the officer may detain the person to be searched until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (3).

(5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(6) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to any search under this section as they apply to any search made under that Code.”

Arguments

Appellant’s Arguments:

• The Gazetted Officer (DSP) was allegedly present at two different locations at the same time, casting doubt on the prosecution’s case. The DSP testified to being at the spot of the incident at 1:30 PM, while also being present at another location at 12:20 PM on the same day.
• The contraband (6 kg 300 gms of opium) was not produced before the Court, which vitiates the conviction. The appellant relied on Jitendra and another v. State of M.P. [(2004) 10 SCC 562], Ashok alias Dangra Jaiswal v. State of Madhya Pradesh [(2011) 5 SCC 123], and Gorakh Nath Prasad v. State of Bihar [(2018) 2 SCC 305] to support this claim.
• Even if Section 50 of the NDPS Act does not apply to the search of a bag, it applies to the personal search of the accused. The appellant cited Dilip and another v. State of M.P. [(2007) 1 SCC 450], where it was held that if a personal search is conducted, Section 50 must be complied with.
• No independent witnesses were associated with the investigation, despite their availability. The appellant pointed to the testimony of PW-6, which indicated that there were people present who could have been witnesses.

State’s Arguments:

• The discrepancy in the DSP’s timing should be seen in light of the time lapse between the incident and the witness’s examination.
• The search was conducted on a bag and not on the person of the accused, therefore Section 50 is not applicable.
• The law does not mandate the production of contraband articles in court. The FSL report is sufficient evidence.
• The appellant did not raise the issue of non-production of the contraband before the Trial Court or the High Court.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the non-association of independent witnesses vitiates the prosecution’s case.
2. Whether the discrepancy in the testimony of the Gazetted Officer (DSP) regarding his presence at the scene of the crime casts doubt on the prosecution’s case.
3. Whether the non-production of the seized contraband in court is fatal to the prosecution’s case.
4. Whether Section 50 of the NDPS Act was violated due to a personal search of the accused.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court distinguished Jitendra and another v. State of M.P. [(2004) 10 SCC 562], stating that the facts of that case were different. The Court noted that in Jitendra, the panch witnesses turned hostile, the investigating officer was not examined, and the seized drugs were not produced.
• The Court distinguished Ashok alias Dangra Jaiswal v. State of Madhya Pradesh [(2011) 5 SCC 123], stating that in Ashok, there were issues with the handling of samples and no explanation for where the seized substance was kept.
• The Court distinguished Gorakh Nath Prasad v. State of Bihar [(2018) 2 SCC 305], stating that in Gorakh Nath Prasad, neither the seized Ganja nor the sample drawn at the time of seizure was produced, and the investigating officer was unsure about the material being kept in the Malkhana.
• The Court followed State of Rajasthan v. Sahi Ram [(2019) 10 SCC 649], holding that if the seizure is otherwise proved and not disputed, the entire contraband need not be produced in court.
• The Court overruled the view taken in Dilip and another v. State of M.P. [(2007) 1 SCC 450], relying on State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473], holding that if a personal search does not result in any recovery, non-compliance with Section 50 does not invalidate the recovery from a bag.
• The Court followed State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473], holding that if the personal search does not result in any recovery, non-compliance with Section 50 does not invalidate the recovery from a bag.
• The Court discussed SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal [(2018) 9 SCC 708], noting that it was not brought to the notice of the bench in Baljinder Singh. However, the Court followed the later decision in Baljinder Singh.
• The Court distinguished Mohinder Singh v. State of Punjab [(2018) 18 SCC 540] on the facts, stating that in Mohinder Singh, no order of the Magistrate was proved to show that the case property was produced before the Court.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the fact that the contraband was recovered from a bag, and not from a personal search. The Court also considered the fact that the sample was produced, and there was no argument about tampering. The Court also noted that two courts had reposed confidence in the prosecution witnesses. The Court emphasized that minor discrepancies in witness testimonies should not discredit the prosecution’s case when the core facts are established.

The Court’s reasoning can be summarized as follows:

The Court considered the argument that the DSP’s testimony was unreliable due to his presence at two different locations at the same time. However, the Court reasoned that minor discrepancies should not discredit the testimony, especially when the contraband was recovered from the bag. The Court also considered the argument that the contraband was not produced in court. However, the Court held that it is not mandatory to produce the entire contraband, especially when the sample was produced, and there was no dispute about the seizure. The Court further considered the argument that Section 50 of the NDPS Act was violated. However, the Court held that Section 50 does not apply to the search of a bag and that no contraband was recovered from the personal search of the accused. Finally, the Court considered the argument that no independent witnesses were associated with the investigation. However, the Court held that two courts had reposed confidence in the prosecution witnesses, and there was evidence that witnesses were reluctant to join the investigation.

The Court relied on the judgment in State of Rajasthan v. Sahi Ram [(2019) 10 SCC 649], where it was held that if the seizure is otherwise proved and not disputed, the entire contraband need not be produced in court.

The Court overruled the view taken in Dilip and another v. State of M.P. [(2007) 1 SCC 450], relying on the judgment in State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473], where it was held that if a personal search does not result in any recovery, non-compliance with Section 50 does not invalidate the recovery from a bag.

The Court quoted the following from the judgment:

“The case property is Exhibit P1, sample is Exhibit P2, sample seal is Exhibit P3 and the bag in which the case property was recovered from the possession of the accused present in the Court is Exhibit P4.”

“If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court.”

“If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.”

Key Takeaways

• Minor discrepancies in witness testimonies may not be sufficient to overturn a conviction if the core facts of the case are established.
• The non-production of the entire contraband in court is not fatal to the prosecution’s case if the seizure is otherwise proved and not disputed, and samples are produced.
• Section 50 of the NDPS Act does not apply to the search of a bag; it applies to personal searches.
• If a personal search does not result in any recovery, non-compliance with Section 50 does not invalidate the recovery from a bag.
• The testimony of official witnesses can be relied upon even if independent witnesses are not associated, provided the court finds their testimony credible.

Directions

The Court directed that the appellant’s bail bond shall stand cancelled. The Court also stated that the appellant may seek appropriate relief regarding her incarceration in a jail in the State of Madhya Pradesh.

Development of Law

The ratio decidendi of this case is that minor discrepancies in witness testimonies and the non-production of the entire contraband are not sufficient grounds to overturn a conviction under the NDPS Act if the core facts of the case are established and the seizure is otherwise proved. The Court also clarified that Section 50 of the NDPS Act does not apply to bag searches and that non-compliance with Section 50 does not invalidate the recovery from a bag if the personal search does not result in any recovery. This judgment clarifies and reinforces the position of law established in State of Rajasthan v. Sahi Ram [(2019) 10 SCC 649] and State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473], while overruling the view taken in Dilip and another v. State of M.P. [(2007) 1 SCC 450].

Conclusion

The Supreme Court upheld the conviction of the appellant, Than Kunwar, under the NDPS Act. The Court found that the discrepancies in the testimony of the Gazetted Officer, the non-production of the entire contraband, and the non-association of independent witnesses were not fatal to the prosecution’s case. The Court also clarified that Section 50 of the NDPS Act does not apply to the search of a bag. This judgment reinforces the importance of establishing the core facts of a case and clarifies the application of Section 50 of the NDPS Act.