2013 INSC 0504
                                    SUPREME COURT OF INDIA

                                                  Vijay Jain

                                                      Vs.

                                         State of Madhya Pradesh

                                          (2013) 9 SCALE 0439

                                  (A.K. Patnaik and Ranjan Gogoi JJ.)

                                                 20.06.2013

                                               JUDGEMENT

A.K. Patnaik, j.

1. These are appeals by way of special leave under Article 136 of the Constitution of India
against the judgment and order dated 21 February, 2011 of the Madhya Pradesh High Court,
Indore Bench in Criminal Appeal Nos. 1048 and 1172 of 2007.

2. The facts very briefly are that on 5th May, 2004, R.C. Pathak, Thanedar Incharge (TI) of
Police Station Annapura conducted raid at 15:15 hours at Kshitij Apartment, Usha Nagar
Square and apprehended Nilesh Suryakant Shah, the Appellant in Criminal Appeal No. 484
of 2013 outside Flat No. 305 of the Apartment as he was alleged to have been carrying brown
sugar in a suit case. After seizing the alleged brown sugar from Nilesh, R.C. Pathak entered
Flat No. 305 and apprehended the Appellant Vijay Jain as it was alleged that he also had
brown sugar in his clothes. R.C. Pathak also seized the alleged brown sugar from Vijay.
Thereafter he handed over investigation to his successor, R.D. Bhardwaj, Thanedar Incharge
of Raj Nagar Police Station and after investigation charge sheet was filed against Nilesh and
Vijay for the offence Under Section 8/21(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "the NDPS Act"). The two Appellants denied the charges and
trial was conducted by the Special Judge (NDPS), Indore. At the trial, the prosecution
examined as many as 12 witnesses. Shirish Babu Tiwari and Manoj Dubey who witnessed the
seizure were examined as P. Ws. 2 and 3. R.C. Pathak was examined as P.W. 11 and
Lokendra Singh Yadav who was in charge of the Malkhana in which the brown sugar was
said to have been stored was examined as P.W. 5. The learned Special Judge (NDPS), Indore
by judgment dated 17th August, 2007, convicted the Appellants and sentenced them both for
10 years rigorous imprisonment and imposed a fine of Rs. 1 lakh on each. Aggrieved, the
Appellants filed Criminal Appeal Nos. 1048 and 1172 of 2007 before the High Court, but by
the impugned common judgment, the High Court maintained the conviction and sentence and
dismissed the appeals. Aggrieved the Appellants have filed these appeals.

1  SpotLaw
3. Mr. Sushil Kumar Jain, learned Counsel appearing for the Appellants raised several
contentions to assail the conviction of both the Appellants. For deciding these appeals, we
will consider only the contention of Mr. Jain that the contraband goods have not been
produced before the trial court. He submitted that this Court has held in Jitendra and Anr. v.
State of M.P1, that where there is non -production of the contraband goods alleged to have
been seized from the accused, the conviction for the offence Under Section 20(b) of the
NDPS Act cannot be sustained -He also cited the decision of this Court in Ashok v. State of
M.P.2, in which a similar view has been taken that where the narcotic drug or the
psychotropic substance alleged to have been seized from the possession of the accused is not
produced before the trial court as a material exhibit and there is no explanation for its non
-production, there is no evidence to connect the forensic expert report with the drug or the
substance that was seized from the possession of the accused and in such a case the
conviction is not maintainable. ;

12004 (10) SCC 562
22011 (5) SCC 123

2  SpotLaw