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REPORTABLE

           IN THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 843 OF 2008         (Arising out of S.L.P. (Crl.) No. 3346 of 2006

State of Rajasthan                          .... Appellant (s)

          Versus

Udai Lal                                    .... Respondent(s)

                        JUDGMENT

P. Sathasivam, J.

1)   Leave granted.

2)   State of Rajasthan, aggrieved by the judgment and order

dated 15.09.2005 passed by the High Court of Judicature for

Rajasthan at Jodhpur in S.B. Criminal Appeal No. 1050 of

2002 acquitting the respondent/Udai Lal, who had been

convicted by the Special Judge, NDPS cases, Chittorgarh

under Section 8/15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as ‘the NDPS

Act’) and sentenced him to undergo 10 years’ rigorous

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imprisonment and a fine of Rs. One lakh, has filed the above

appeal.

3)   BRIEF FACTS:

    According to the prosecution, on 19.08.2001, at about

3.05 p.m. one Himmat Singh, Station House Officer, Police

Station, Chanderiya, received an information from Mukhbir

about transporting illicit liquor in truck No. RJ 09/G/0604

and acting on that information he alongwith Amar Singh

P.W.5, Udai Singh P.W.6, Gopal P.W.11 after calling two

motbirs Dinesh Khatik P.W. 1 and Iqbal P.W.2, taking with

them the necessary articles for investigation, started in

Government jeep.     At 3.15 p.m., as per the information

received, the said truck arrived there from the side of Chittor

and was got stopped by signaling. The truck was covered by

tarred canvass.   After removing the canvass from the truck,

when the truck was searched, the back side of bags was found

to be of maize and in the rest part of the truck there were

gunny bags. While checking the maize bags, smell of narcotic

substance was felt and after giving notice to driver Udai Lal,

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he was asked about his option to be searched either by a

Magistrate or Gazetted Officer or Station House Officer

himself. The driver gave his consent in writing to give search

to the S.H.O. In the search of the truck, 21 bags of maize and

119 bags of poppy husk were found, which were seized at the

spot and out of those seized bags two samples of 500 each

were taken out from five bags and sealed and marked then

and there. The rest of the material was also seized and sealed.

The accused Udai Lal was arrested and a case against him

under Section 8/15 of the NDPS Act was registered. During

investigation, the material was found to be got loaded by one

Dalchand Brahmin, as such he was also arrested under

Section 8/28 of the Act.   Challan against both the accused

was filed in the Court.

    The matter came up before the Special Judge, NDPS

Cases, Chittorgarh and the parties were heard on framing of

charge.   Charge under Section 8/15 of the Act was framed

against the accused/Udai Lal while the other accused

Dalchand Brahmin was left out for the offence under Section

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8/29 of the Act.     The accused denied the charge.       The

prosecution, in support of its case, examined P.Ws 1 to 12 and

Exh. P-1 to P-22. After closing of the prosecution evidence,

when the statement of the accused was recorded under

Section 313 of the CrP.C., he stated that neither he was

driving the truck nor the poppy husk was recovered from him.

He claimed himself to be innocent. In defence, the accused

examined himself as D.W.1 and also examined D.Ws 2-5. The

learned Special Judge, after considering the materials and

hearing both sides, by judgment and order dated 02.12.2002,

convicted the accused for the offence under Section 8/15 of

the NDPS Act and sentenced him as mentioned above.

    Aggrieved by the judgment and order passed by the

learned Special Judge, the accused preferred S.B. Criminal

Appeal No. 1050 of 2002 before the High Court of Judicature

for Rajasthan at Jodhpur.   By the impugned judgment, the

High Court, after finding that the evidence led by the

prosecution is not sufficient to bring home the guilt of the

accused interfered with the order passed by the Special Judge

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set aside the conviction and sentence and allowed the appeal.

Questioning the order of acquittal by the High Court, the State

of Rajasthan through Secretary, Department of Home Affairs

has filed the above appeal.

4)   Heard Mr. Milind Kumar, learned counsel for the

appellant and none appeared on behalf of the respondent.

5)   As   mentioned    above,   the   respondent/accused        was

charge-sheeted for the offence under Section 8/15 of the

NDPS Act.      Learned counsel appearing for the State of

Rajasthan submitted that the High Court was not justified in

acquitting   the   accused    overlooking   the   fact   that   the

respondent/accused was found to be illegally transporting

narcotic substance and it was found proved from oral and

documentary evidence that 119 bags containing 4,717 Kgs of

Opium powder have been recovered from the truck on which

only respondent/accused was present and that the truck was

in his possession.     He also submitted that the ultimate

conclusion of the High Court cannot be sustained in view of

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the law laid down by this Court in Khet Singh vs. Union of

India, (2002) 4 SCC 380.

6)    As stated earlier, the prosecution has examined P.Ws 1

to 12 and also produced documentary evidence Exh. P-1 to P-

22.    Though the Special Judge, on consideration and

appreciation of the entire materials, accepted the prosecution

case, the High Court discarded them on the simple ground

that first they turned hostile and secondly their presence itself

is doubtful. The High Court has also adduced another reason

for acquittal, namely, that out of the total of 119 bags

recovered, samples were taken out only from 5 bags and none

of the witnesses could state their exact weights.        It also

concluded that the reason for not producing all the 119 bags

before the Court is not convincing. In the light of the reasons

stated in the order of the High Court, learned counsel for the

State of Rajasthan took us through the entire materials

produced by the prosecution. Before analyzing the same, it is

relevant to mention that in order to consolidate and amend

the law relating to narcotic drugs, to make stringent

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provisions for the control and regulation of operations relating

to narcotic drugs and psychotropic substances, to provide for

the forfeiture of property derived from, or used in, illicit traffic

in narcotic drugs and psychotropic substances, to implement

the provisions of the International Convention on Narcotic

Drugs and Psychotropic Substances, the Parliament enacted

NDPS Act in the year 1985. This is a special Act and it has

been enacted with a view to make stringent provisions for the

control and regulation of operations relating to the narcotic

drugs and psychotropic substances.        With this background,

let us analyze whether prosecution has established the charge

leveled against the respondent/accused and the High Court is

justified in acquitting him while exercising power under

Section 36B read with Chapter XXIX of the Code of Criminal

Procedure, 1973.

7)   It is not in dispute that onus of proof lies on the

prosecution.     To prove the fact that as to whether on

19.08.2001 at 3.15 p.m. Station House Officer, Himmat Singh

recovered 119 bags containing illegally doda powder from the

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possession of the accused/Udai Lal for which he was not

having any permission letter, the prosecution recorded the

statement of P.W.5 Amar Singh, P.W.6 Udai Singh, P.W.7

Himmat Singh, P.W.11 Gopal Lal and P.W.12 Munir Khan. It

is true that except Munir Khan, all the witnesses are from the

Police Department. Though the prosecution has recorded the

statement of independent witnesses P.W.1 Dinesh, P.W.2

Iqbal, P.W. 3 Ajay, P.W.4 Ramesh, these four independent

witnesses have been turned hostile.      However, as rightly

pointed out by learned counsel for the State, the said

witnesses have admitted to put their signatures at the

required place on the documents prepared on the spot by the

prosecution.   Like P.W.1 other witnesses, namely, P.W.2,

P.W.3 and P.W.4 have also admitted that they put their

signatures at the proper place on the documents prepared by

the police. It is relevant to note that the Special Judge has

pointed out that out of these witnesses even a single witness

has not given any such statement that the said signatures

have been taken from them under terror, pressure or without

their free consent. The Special Judge has also observed that

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while the said witnesses are educated and have admitted to

have signed with their free consent, it is proved that all the

four witnesses were present on the spot where the prosecution

party has very much carried out the proceedings.         These

material aspects have not been properly considered by the

High Court except discarding them on the ground that they

turned hostile.

8)   Among the other witnesses, namely, P.Ws. 5, 6, 10, 11

and 12, as stated earlier, except Munir Khan, others belong to

the Police Department.    However, the High Court has not

analyzed and adduced any reason for not accepting their

evidence except pointing out minor contradictions here and

there.

9)   The High Court failed to take note of the relevant aspect,

namely, the quantity of recovery articles is quite huge (115

bags) which could not be produced in the court but on behalf

of the prosecution 5 bags have been produced in the Court. It

is also seen that besides this at the time of recording the

statement investigating officer has produced the samples of

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articles taken from the seized articles in the Court. In such

circumstance, considering the huge quantity merely because

the prosecution has not produced all the 119 bags in the

Court, an inference cannot be drawn against them.          As

mentioned above, and rightly noted by the Special Judge that

at the time of recording the statement Investigating Officer

had produced the samples of the articles in the Court. This

relevant aspect has also not properly dealt with by the High

Court.

10)   Though the High Court found fault with the Special

Judge in analyzing the evidence and other materials, on the

other hand it is the High Court which failed to analyze the

evidence in proper perspective and highlighted the minor

irregularities/contradictions and acquitted the accused on

flimsy grounds without assigning sound reasons.     We have

already pointed out that the NDPS Act being a special Act was

enacted with a view to make stringent provisions for the

control and regulation of operations relating to the narcotic

drugs and psychotropic substances.    In this regard it is apt

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and relevant to quote the following law laid down by this Court

in Khet Singh (supra).

    "16. Law on the point is very clear that even if there is any      sort of procedural illegality in conducting the search and      seizure, the evidence collected thereby will not become      inadmissible and the court would consider all the      circumstances and find out whether any serious prejudice      had been caused to the accused. If the search and seizure      was in complete defiance of the law and procedure and there      was any possibility of the evidence collected likely to have      been tampered with or interpolated during the course of      such search or seizure, then, it could be said that the      evidence is not liable to be admissible in evidence."

    In the light of the above principles, we are satisfied that

the High Court failed to consider all the relevant materials and

circumstances.      Further, Section 36B of the NDPS Act

empowers the High Court to deal with the appeal and dispose

of the same and exercise all powers conferred by Chapter

XXIX and Section 374 of the Code of Criminal Procedure, in

particular. It is settled law that when the view taken either by

Session Judge or Special Judge was found by the High Court

to be manifestly wrong and that it had led to mis-carriage of

justice, the High Court is entitled to interfere and set aside the

same. Such recourse has not been adopted by the High Court

in this case.

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11)   In the light of the infirmities pointed out above, we

accept the State appeal, set aside the order impugned of the

High Court and remit the matter for fresh disposal. The High

Court is requested to restore S.B. Criminal Appeal No. 1050 of

2002 on its file and dispose of the same afresh in the light of

the principles enunciated above after affording opportunity to

both parties. It is made clear that the High Court is free to

arrive such conclusion on consideration of the entire materials

and we have not expressed anything on the merits of the case.

We also request the High Court to dispose of the appeal as

early as possible but not later than six months from the date

of receipt of copy of this judgment. The appeal is allowed to

this extent.

                                    ........................................J.                                     (Dr. Arijit Pasayat)

                               .........................................J.                      (P. Sathasivam) New Delhi; May 8, 2008.

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