Appeal
Appeal against the judgment of the High Court affirming the trial court’s conviction
2. The present appeals arises out of the impugned judgment and order dated 29.09.2011 passed by the High Court of Madhya Pradesh, Bench at Indore, in Criminal Appeal No.390/1997, whereby the High Court affirmed the judgment and order of conviction dated 07.04.1997 passed by the Court of Additional Sessions Judge Garoth, District – Mandsaur, Madhya Pradesh, in Special Crl. Case No. 123 of 1996, whereby the appellant, Mehboob Shah, was convicted under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 and sentenced to undergo a rigorous imprisonment for 14 years along with a fine of Rs.1 Lakh, and in default of payment of fine, to undergo RI for a further period of two years.
Upon confidential information PW.9 apprehended the appellant carrying contraband in a concealed water bottle and registered FIR against him
3. The case of the prosecution, as emerging from the record, is that on 23.06.1996, ASI Indrabhan Singh Parihar (PW-9) received confidential information that the appellant was carrying contraband (smack), concealed in a water bottle, and was about to board the train, DN Frontier Mail, going towards Delhi. Acting upon the said information, PW-9 apprehended the appellant and allegedly recovered 100 grams of smack from the water bottle carried by him. Thereafter, PW-9 drew two representative samples of 5 grams each at the spot, seized the contraband and arrested the appellant. Consequently, FIR No.302/1996 was registered against him.
Trial court convicted the appellant under NDPS Act
4. The Trial Court, upon consideration of oral and documentary evidence, found the appellant guilty of offences punishable under Sections 8 and 21 of the NDPS Act. It held that the prosecution had proved beyond reasonable doubt that 100 grams of smack had been recovered from the water bottle found in the possession of the appellant. The Trial Court further observed that the procedural requirements prescribed under the NDPS Act had been substantially complied with. Accordingly, the appellant was convicted and sentenced as set forth in Paragraph 2.
High Court affirmed the conviction
5. Aggrieved thereby, the appellant preferred an appeal before the High Court which, vide the impugned order and judgment dated 29.09.2011, affirmed the order of the Trial Court and held as under:
“…………”
Present SLP (Criminal appeal) is being filed based on procedural defects
6. Assailing the aforesaid orders of conviction and sentence, the appellant has preferred the present appeal. The main ground of challenge is that the prosecution failed to comply with the requirements of Sections 50 and 52A of the NDPS Act. It is contended that the appellant was not effectively informed of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate; representative samples were drawn by PW-9 himself, at the time of seizure and not in the presence of a Magistrate, contrary to Section 52A of the NDPS Act; and that the independent witnesses to the seizure turned hostile and did not support the prosecution, thereby rendering the prosecution’s case doubtful. Without prejudice to the aforesaid submissions, it is further prayed that, if the conviction is sustained, the appellant should be extended the benefit of amended Section 21, as substituted by the Narcotic Drugs and Psychotropic Substances Amendment Act 2001, which introduced a quantity-based sentencing regime. Alternatively, if the unamended Section 21 is held to be applicable, the appellant be awarded the minimum sentence of 10 years prescribed thereunder, as no aggravating circumstances exist to justify the imposition of a higher sentence.
Analysis
Power of Supreme Court under Art 136 is wide even the courts below have returned concurrent findings of fact
8. At the outset, it is pertinent to reiterate that although the power of this Court under Article 136 of the Constitution of India is wide and can be exercised even in cases where the Courts below have returned concurrent findings of fact, such power should be exercised only in exceptional circumstances. It is trite law that this Court will not readily interfere with the concurrent findings of fact unless they are shown to be perverse, erroneous or unsustainable in law. In Ganga Kumar Srivastava v. State of Bihar this Court discussed the circumstances in which such interference may be warranted and laid down the following principles:
“10. From the aforesaid series of decisions of this Court on the exercise of power of the Supreme Court under Article 136 of the Constitution following principles emerge:
(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.” (emphasis in original)
9. Keeping in view the exposition of law, we shall now proceed to examine the material placed on record and determine whether the conviction recorded by the Courts below warrants any interference.
Absence of independent witnesses and examining official witnesses are not fatal to the prosecution
10. The first submission advanced on behalf of the appellant is that the case of the prosecution is doubtful since the independent witnesses to the seizure have turned hostile; therefore, the conviction could not have been based solely on the testimony of the police officials. It is well settled that the testimony of official witnesses cannot be disregarded or distrusted merely on account of their official status or for want of corroboration by independent witnesses. Examination of independent witnesses is not an indispensable requirement and their non-support or absence is not necessarily fatal to the prosecution’s case. A conviction may be based on the testimony of official witnesses, provided such testimony is found to be reliable and trustworthy. [See: Rizwan Khan v. State of Chhattisgarh].
Even if the independent witnesses to the seizure memo turned hostile conviction can be based on official witnesses if it inspires confidence
11. In the present case, we find that the prosecution has successfully proved its case against the appellant by examining PW-3 (Ashok Singh), PW-6 (Subhas), PW-9 (Indrabhan Singh Parihar) and PW-10 (CL Verma). It is true that all the aforesaid witnesses are police officials and the two independent witnesses to the seizure memo, namely PW-1 (Shantilal) and PW-2 (Babulal), turned hostile. However, the testimony of the official witnesses inspires confidence. They have uniformly deposed about the search, seizure and recovery of the contraband from the appellant. Moreover, they were thoroughly cross-examined by the defence but nothing has been brought on record to discredit their version or cast any doubt on their credibility. We find their evidence reliable and trustworthy and see no reason to disbelieve or discard it. Therefore, we are of the considered view that the Courts below committed no error in relying upon the said witnesses.
Section 50 NDPS discussed and finalized that the section is not applicable
12. The next contention of the appellant pertains to the alleged non-compliance of Section 50 of the NDPS Act. We find the same to be devoid of merit. Section 50 of the NDPS Act confers upon an accused a valuable right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires. Such right is sacrosanct and indefeasible which cannot be disregarded by the prosecution except at its own peril. [See: State of Punjab v. Baldev Singh] The protection under Section 50 is confined to cases where the recovery is sought to be effected through the personal search of the accused. It has no application where the search is of an article, such as a bag, container, suitcase or any other object, which the accused may be carrying. [See: State of H.P. v. Pawan Kumar and Ranjan Kumar Chadha v. State of H.P.]
13. In the instant case, given that the contraband was recovered from a water bottle which the appellant was carrying and not from his person, Section 50 of the NDPS Act has no application. Even otherwise, the evidence on record clearly shows that the appellant was apprised of his right to be searched before a Magistrate or a Gazetted Officer. The Report for Grant of Consent (Exhibit P-1) records that PW-9 informed the appellant that he had the option to be searched before a Magistrate or Gazetted Officer. The relevant extract thereof is reproduced hereunder for ready reference:
“….”
The contents of the aforesaid document are duly corroborated by the testimonies of PW-6 (Constable Subhas) and PW-9 (ASI Indrabhan Singh Parihar), both of whom have consistently deposed that before conducting the search, the appellant was given the option of being in the presence of a Gazetted Officer or a Magistrate. Thus, even though Section 50 had no application, the appellant was nevertheless informed of the safeguard prescribed thereunder.
Mere delayed compliance or non-compliance of the procedure u/s 52A NDPS cannot entitle accused acquittal
14. The appellant has further contended that there has been non-compliance with Section 52A of the NDPS Act, inasmuch as the representative samples were not drawn in the presence of a Magistrate. We are unable to accept the said submission. It is well settled that mere delayed compliance or non-compliance of the procedure envisaged under Section 52A does not, by itself, entitle the accused to claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the search and seizure of the contraband was conducted in accordance with the mandatory provisions of the NDPS Act. Where non-compliance of Section 52A of the NDPS Act is alleged, the prosecution must prove eithersubstantial compliance with the mandate of Section 52A of the NDPS Act or satisfy the Court that such non-compliance has not affected its case against the accused. [See: Bharat Aambale v. State of Chhattisgarh] The ambit and scope of the aforesaid section has been discussed in detail by a co-ordinate Bench of this Court in Narcotics Control Bureau v. Kashif10, wherein it was held as under:
“……”
Documents like panchnama, seizure memo, arrest memo prepared by the IO on the spot or during the course of investigation constitute primary evidence
15. It is undisputed that the samples were drawn by PW-9 himself at the time of seizure and not in the presence of a Magistrate. However, the appellant has failed to demonstrate that such non-compliance has caused him any serious prejudice. It is pertinent to note that the NDPS Act, as it then stood, did not prohibit drawing of samples at the spot of seizure. As noticed above, the requirement under Section 52A is procedural in nature. The documents like panchnama, seizure memo, arrest memo, etc., prepared by the Investigating Officer on the spot or during the course of investigation constitute primary evidence, with regard to search and seizure of the contraband, which cannot be overlooked merely because of some lapse or non-compliance is found with Section 52A of the Act. [See: Kashif (supra)].
16. In the facts of the present case, the prosecution has adduced cogent oral and documentary evidence to establish the recovery of the contraband including seizure memo and panchnama. The record further reveals that the samples were duly sealed in the presence of the appellant and were thereafter sent to the Forensic Science Laboratory, Indore, for chemical examination, which confirmed the seized substance to be diacetylmorphine (smack/heroin). It is nobody’s case that the chain of custody was broken or that the samples were tampered with. In these circumstances, the fact that the samples were not drawn in the presence of a Magistrate is merely a procedural irregularity and cannot be ground for acquittal.
18. Alternatively, the appellant has prayed that he be extended the benefit of Section 21 of the amended NDPS Act, which introduced a quantity based sentencing regime. It was submitted that the quantity of contraband allegedly recovered from the appellant falls much below the commercial quantity specified under the amended provision. In our considered opinion, such relief cannot be granted. Section 41 of the Act 9 of 2001, i.e., the 2001 Amendment Act, expressly provides that the amended provisions would only apply to cases which were pending before the Trial Courts or under investigation as on 02.10.2001, the date on which the 2001 Amendment Act came into force. The proviso thereto specifically excludes cases where the trial had concluded, and the matter was pending in appeal. [See: Basheer v. State of Kerala11] As the appellant had already been convicted by the Trial Court on 07.04.1997 and his appeal was pending before the High Court when the Amendment Act came into force, the benefit of the amended Section 21 cannot be extended to him.
Conclusion
Appeal partly allowed
20. For the reasons stated above, the appeals are partly allowed. The conviction of the appellant under Sections 8 and 21 of the NDPS Act is affirmed. The impugned judgments of the Trial Court and the High Court are modified only to the extent of the sentence awarded to the appellant, which is reduced from 14 years to 10 years of rigorous imprisonment. The punishment of a fine of Rs.1 Lakh is maintained. If the fine has not already been deposited, the appellant shall deposit the same within a period of three months, failing which he shall undergo rigorous imprisonment for a further period of one year.
Resources
Judgments Cited and Briefs
- Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211: Discussed the principles and exceptional circumstances under which the Supreme Court exercises its wide powers to interfere with concurrent findings of fact under Article 136 of the Constitution.
- Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627: Established that the testimony of official witnesses can lead to a conviction and cannot be disregarded solely due to their official status or a lack of corroboration by independent witnesses.
- State of Punjab v. Baldev Singh (1999) 6 SCC 172: Held that the right of an accused under Section 50 of the NDPS Act to have a personal search conducted before a Gazetted Officer or a Magistrate is a sacrosanct and indefeasible right.
- State of H.P. v. Pawan Kumar (2005) 4 SCC 350 & Ranjan Kumar Chadha v. State of H.P. 2023 SCC OnLine SC 1262: Clarified that the protection under Section 50 of the NDPS Act applies only to personal searches and does not extend to the search of an article like a bag, container, or water bottle carried by the accused.
- Bharat Aambale v. State of Chhattisgarh (2025) 8 SCC 452: Ruled that delayed or non-compliance with the procedure in Section 52A of the NDPS Act does not automatically entitle an accused to acquittal if the prosecution proves substantial compliance or shows that the non-compliance did not cause prejudice.
- Narcotics Control Bureau v. Kashif (2024) 11 SCC 372: Detailed the scope of Section 52A of the NDPS Act, stating its alternative purposes are not cumulative, and highlighted that primary evidence like panchnamas and seizure memos remains valid despite procedural lapses in Section 52A.
- Basheer v. State of Kerala (2004) 3 SCC 609: Clarified that the amended provisions of the 2001 Amendment Act apply only to cases pending trial or investigation as of 02.10.2001, explicitly excluding cases where the trial had concluded and the matter was pending in appeal.
- Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985: Sections 8, 21, 50, 52A, and 54.
- Narcotic Drugs and Psychotropic Substances Amendment Act, 2001 (Act 9 of 2001): Section 41.
- Constitution of India: Article 136.
- Evidence Act: Section 62.
Party
Mehboob Shah versus State of Madhya Pradesh, bearing Criminal Appeal No(s). 3305 of 2026 (arising out of SLP(Crl.) No(s). 5946-5947 of 2026), with citation 2026 INSC 729, the judgment was pronounced on 21st July 2026 by Justices Sanjay Karol and Nongmeikapam Kotiswar Singh.
