For recording the conviction, the Sessions Court as well as the High Court mainly relied on the testimony of official witnesses and found them sufficiently strengthening the recovery of the possession from the appellant. - In our considered view, the manner in which the alleged recovery has been made does not inspire confidence and undue credence has been given to the testimony of official witnesses, who are generally interested in securing the conviction. - In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution.- Though it is well-settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence.- In the present case, it is not as if independent witnesses were not available. - Independent witnesses PW1 and another independent witness examined as DW2 has spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version. -2015 S.C. MSKLAWPREPORTS
police officials during patrolling, when talking with one Manjeet Singh-PW1
and Gamdur Singh-DW2, saw the suspicious 'fitter-rehra' (a vehicle) driven
by the appellant.
Police intercepted the vehicle and questioned the
appellant about his whereabouts, and found some dubious bags lying in the
vehicle.
Before searching the bags, police intimated to the appellant that
instead of being searched by police whether he wishes to be searched by a
Gazetted Officer or a Magistrate and the appellant declined to be searched
by them and a consent memo (Ext.PA) was drawn.
Then, the police in the
presence of independent witnesses, i.e. Manjeet Singh and Gamdur Singh,
conducted the search and during the search, three bags containing
commercial quantity of poppy husk (120 kgms.) were recovered from the
appellant's vehicle. Police seized the bags, took sample of 200 grams from
each of the bag and sealed them separately, and then sealed the remaining
quantity in separate parcels and deposited the same with MHC.
The sealed
samples were sent to Chemical Examiner, who vide his report (Ext. PK) found
the samples to be 'Powdered Poppy Husk'. On completion of investigation,
police laid the chargesheet against the appellant under Section 15 of NDPS
Act.
Out of two independent witnesses in the case, Manjeet Singh-PW1
turned hostile and Gamdur Singh was won over by the defence and had been
examined as defence witness DW2.
Both PW1 and DW2 have deposed that the appellant was not
arrested in their presence nor any recovery was made from him.
PW1 and DW2
have further deposed that when they went to police station for some work,
they saw the appellant already in custody of police and that their
signatures were obtained on the blank papers.
In his cross-examination,
though DW2 has admitted that Ext. PB bears his signature at point 'A', he
disowned his statement in Ext.PL recorded under Section 161 of the Criminal
Procedure Code.
For recording the conviction, the Sessions Court as well as the High
Court mainly relied on the testimony of official witnesses who made the
recovery, i.e. H.C. Suraj Mal-PW2 and Inspector Raghbir Singh-PW6, and
found them sufficiently strengthening the recovery of the possession from
the appellant. In our considered view, the manner in which the alleged
recovery has been made does not inspire confidence and undue credence has
been given to the testimony of official witnesses, who are generally
interested in securing the conviction. In peculiar circumstances of the
case, it may not be possible to find out independent witnesses at all
places at all times. Independent witnesses who live in the same village or
nearby villages of the accused are at times afraid to come and depose in
favour of the prosecution. Though it is well-settled that a conviction can
be based solely on the testimony of official witnesses, condition precedent
is that the evidence of such official witnesses must inspire confidence.
In the present case, it is not as if independent witnesses were not
available. Independent witnesses PW1 and another independent witness
examined as DW2 has spoken in one voice that the accused person was taken
from his residence. In such circumstances, in our view, the High Court
ought not to have overlooked the testimony of independent witnesses,
especially when it casts doubt on the recovery and the genuineness of the
prosecution version.
turned hostile and Gamdur Singh was won over by the defence and had been
examined as defence witness DW2.
Both PW1 and DW2 have deposed that the appellant was not
arrested in their presence nor any recovery was made from him.
PW1 and DW2
have further deposed that when they went to police station for some work,
they saw the appellant already in custody of police and that their
signatures were obtained on the blank papers.
In his cross-examination,
though DW2 has admitted that Ext. PB bears his signature at point 'A', he
disowned his statement in Ext.PL recorded under Section 161 of the Criminal
Procedure Code.
For recording the conviction, the Sessions Court as well as the High
Court mainly relied on the testimony of official witnesses who made the
recovery, i.e. H.C. Suraj Mal-PW2 and Inspector Raghbir Singh-PW6, and
found them sufficiently strengthening the recovery of the possession from
the appellant. In our considered view, the manner in which the alleged
recovery has been made does not inspire confidence and undue credence has
been given to the testimony of official witnesses, who are generally
interested in securing the conviction. In peculiar circumstances of the
case, it may not be possible to find out independent witnesses at all
places at all times. Independent witnesses who live in the same village or
nearby villages of the accused are at times afraid to come and depose in
favour of the prosecution. Though it is well-settled that a conviction can
be based solely on the testimony of official witnesses, condition precedent
is that the evidence of such official witnesses must inspire confidence.
In the present case, it is not as if independent witnesses were not
available. Independent witnesses PW1 and another independent witness
examined as DW2 has spoken in one voice that the accused person was taken
from his residence. In such circumstances, in our view, the High Court
ought not to have overlooked the testimony of independent witnesses,
especially when it casts doubt on the recovery and the genuineness of the
prosecution version.
In the absence of independent evidence
connecting the appellant with the fitter-rehra, mere compliance with
Section 50 of the NDPS Act by itself would not be sufficient to establish
the guilt of the appellant. It is a well-settled principle of the criminal
jurisprudence that more stringent the punishment, the more heavy is the
burden upon the prosecution to prove the offence.
The conviction of the appellant and the sentence imposed on him is
set aside and this appeal is allowed. Fine amount of Rs.1,00,000/-, if
paid, is ordered to be refunded to the appellant.- 2015 S.C. MSKLAWREPORTS
