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Wednesday, April 22, 2015

NDPS Act - Sizer of prohibited contraband - Apex court held that when Independent witnesses PW1 who turned hostile and another independent witness who was examined as DW2 has spoken in one voice that the accused person was taken from his residence-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.-2015 S.C. msklawreports

  
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.

  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

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