VIJAY PANDEY versus STATE OF UTTAR PRADESH

Citation: [2019] 10 S.C.R. 774 · Decided: 30-07-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 10 S.C.R.
VIJAY PANDEY
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 1143 of 2019)
JULY 30, 2019
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.
8, 15 – Prosecution case that appellant was carrying 10 kgs. of
opium – Appellant contended that he was falsely implicated – Trial
Court convicted appellant u/ss. 8, 15 of NDPS Act – High Court
upheld the conviction of the accused – On appeal, held: No
independent witness from the locality was included in the
investigation and all the witnesses were police officials – There was
no explanation for the non-availability of any independent witness
in a residential locality – Further, though the Laboratory report of
the seized sample was obtained, but the identity of the sample seized
from the appellant was not conclusively established – In the
circumstances, mere production of a laboratory report that the sample
tested was narcotics cannot be conclusive proof by itself – The
sample seized and that tested have to be co-related – Thus, the
conviction by the courts below unsustainable and accordingly set
aside.
Allowing the appeal, the Court
HELD : 1. The seizure was made in the early morning at
the door step of the appellant.  It is difficult to believe that in a
rural residential locality, the police were unable to find a single
independent witness.  No name of any person has been mentioned
who may have declined to be a witness.  The High Court, despite
noticing the absence of any recovery memo prepared at the time
of search and seizure under Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, opined that the deposition
of the police witness to that effect was sufficient compliance.
Though the Laboratory Report was obtained, but the identity of
the sample stated to have been seized from the appellant was not
conclusively established by the prosecution. [Para 5] [776-D-F]
   [2019] 10 S.C.R. 774
774
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2. The failure of the prosecution in the present case to relate
the seized sample with that seized from the appellant makes the
case no different from failure to produce the seized sample itself.
In the circumstances the mere production of a laboratory report
that the sample tested was narcotics cannot be conclusive proof
by itself.  The sample seized and that tested have to be co-related.
The conviction by the Trial Court and upheld by the High Court
are unsustainable and are accordingly set aside.  The appellant is
acquitted. [Paras 8, 10] [777-F; 778-E-F]
Mohan Lal v. State of Punjab AIR 2018 SC 3853 :
2018 SCR 1006 ; Vijay Jain v. State of Madhya Pradesh
(2013) 14 SCC 527 : [2013] 4 SCR 293 ; Ashok alias
Dangra Jaiswal v. State of Madhya Pradesh (2011) 5
SCC 123 : [2011] 4 SCR 253 – relied on.
Case Law Reference
[2018] SCR 1006 
relied on
Para 7
[2013] 4 SCR 293
relied on
Para 8
[2011] 4 SCR 253
relied on
Para 9
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1143 of 2019.
From the Judgment and Order dated 10.10.2018 of the High Court
of Judicature  at Allahabad in Criminal Appeal No. 7351 of 2007.
Tripurari Ray, Balwant Singh Billowria, Suresh Kumar Sharma,
Parveen Kumar,  Prafulla Kumar, Rajesh Singh,  Advs. for the Appellant.
Sanjay Kumar Tyagi, Ajay Kr. Prajapati, A. K. Pandey, Yogesh
Pachouri, Sandeep Singh,  Advs. for the Respondent.
The Judgment of the Court was delivered by
NAVIN SINHA, J.
1. The appellant assails his conviction and sentence under Sections
8 and 15 of the of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred as “the NDPS Act”) for 15 years along with
fine of Rs.1,50,000/- under Section 31 of the NDPS Act.
VIJAY PANDEY v. STATE OF UTTAR PRADESH
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SUPREME COURT REPORTS
[2019] 10 S.C.R.
2. The appellant is stated to have been carrying a plastic flour
packet in his right hand leading to recovery of 10 kgs. of opium.  No
independent witness from the locality was included in the investigation
and all the witnesses are police officials only.
3. Learned counsel for the appellant alleging false implication
contends that he was apprehended as he stepped out of his house. There
is no explanation for the non-availability of any independent witness in a
residential locality. There is non-compliance with Section 50 of the NDPS
Act. The prosecution failed to prove that the sample produced in court
was the same as seized from the appellant.
4. Learned counsel for the State submits that 

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