ASHOK @ DANGRA JAISWAL versus STATE OF M.P.

Citation: [2011] 4 S.C.R. 253 · Decided: 05-04-2011 · Supreme Court of India · Bench: AFTAB ALAM · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2011) 4 S.C.R. 253 
ASHOK @ DANGRA JAISWAL 
V. 
STATE OF M.P. 
(Criminal Appeal No. 1438 of 2008) 
APRIL 05, 2011 
[AFTAB ALAM AND R.M. LO_l)HA, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985 
A 
B 
- ss. 8121 (b) - Personal search of appellant and his two 
employees - Alleged recovery of smack powder - Conviction C 
and sentence u/ss. 8121 (b) - Appeal by the appellant and one 
of his employee dismissed by the High Court - Appeal before 
the Supreme Court by the appellant - Held: Independent 
witness of seizure were declared hostile by the prosecution -
It is not clear where the samples were laid or were handled D 
by how many people and in what ways, from the time of the 
seizure of the narcotic substance till their deposit in the 
Forensic Laboratory - Alleged narcotic substance that was 
seized from the accused was deposited in the Malkhana about 
two months later- No explanation where the seized substance 
E 
was kept in the meanwhile - Also non-production of the 
alleged narcotic powder as also the appellant before the trial 
court - Thus, no evidence to connect the forensic report with 
the substance that was seized from the possession of the 
appellant or the other accused - Appellant entitled to the 
F 
benefit of doubt and acquitted of the charges - Benefit of the 
order of acquittal extended to the non-appealing accused as 
well. 
According to the prosecution, on a pe..Sonal search, 
smack powder was recovered from the appellant as also G 
his employees,. 'K' and 'G'. The samples were taken from 
the recoveries made and sent for investigation. On the 
basis of the forensic report, the appellant and his two 
employees were convicted under Sections 8/21 (b) of the 
253 
H 
254 
SUPREME COURT REPORTS 
[2011) 4 S.C.R. 
A Narcotic Drugs and Psychotropic Substances Act, 1985 
and sentenced accordingly. Only, the appellant and 'G' 
filed appeals before the High Court and the same were 
dismissed. The appellant has filed the instant appeal. 
B 
Allowing the appeal, the Court 
HELD: 1.1 There were two independent witnesses of 
the seizure, namely, 'A' and 'U' whose signatures were 
taken on the seizure memos. They were examined before 
the court as PWs 8 and 9 respectively. Neither of the two 
C supported the case of the prosecution. PW.8 was, as a 
matter of fact, quite emphatic in his denial of any recovery 
having been made from the appellant or the other 
accused in his presence. Both were declared hostile by 
the prosecution. Therefore, both the trial court and the 
D High Court had to rely upon the testimony of PW 10 who 
was the Station House Officer at the material time and 
who had conducted the raid to accept the prosecution 
case of recovery of the suspected narcotic from the 
accused. The seizure witnesses turning hostile may not 
E be very significant, as it is not an uncommon 
phenomenon in criminal trials, particularly in cases 
relating to NDPS but there are some other circumstances 
which, when taken together, make it very unsafe to 
uphold the appellant's conviction. [Paras 8 and 9) (258-
F G-H; 259-A-C] 
1.2 The seizure of the alleged narcotic substance is 
shown to have been made on March 8, 2005, at 11 :45 in 
the evening. The samples taken from the seized 
substance were sent to FSL on March 10, 2005, along 
G with the draft. The samples sent for forensic examination 
were, however, not deposited at the FSL on that date but 
those came back to the police station on March 12, 2005 
due to some mistake in the draft or with some query in 
respect of the draft. The samples were sent back to the 
H FSL on March 14, 2005, after necessary corrections in the 
ASHOK@ DANGRA JAISWAL v. STATE OF M.P. 
255 
draft and/or giving reply to the query and on that date the 
A 
samples were accepted at the FSL. From the time of the 
seizure in the late evening of March 8, 2005, till their 
deposit in the FSL on March 14, 2005, it is not clear where 
the samples were laid or were handled by how many 
people and in what ways. [Para 10] [259-D-F] 
B 
1.3 The FSL report came on March 21, 2005, and on 
that basis the police submitted charge-sheet against the 
accused on March 31, 2005, but the alleged narcotic 
substance that was seized from the accused, including C 
the appellant was deposited in the Malkhana about two 
months later on May 28, 2005. There is no explanation 
where the seized substance was kept in the meanwhile. 
[Para 11] [259-G-H; A] 
1.4 The alleged narcotic powder seized from the D 
po

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