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Wednesday, November 4, 2015

From the evidence led by the prosecution, it has been proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of the thirty three bags of poppy husk in the trolley attached to the tractor. Upon appreciation of evidence, High Court rightly reversed the acquittal and convicted the appellant under Section 15 of the NDPS Act. The occurrence was in the year 1990 and the appellant has suffered a protracted proceeding of about twenty five years. In the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant is reduced from twelve years to ten years. The conviction of the appellant under Section 15 of the NDPS Act is confirmed and the sentence of imprisonment imposed on the appellant is reduced to ten years and the appeal is partly allowed. The appellant is on bail and his bail bonds are cancelled. The appellant be taken into custody forthwith to serve the remaining part of the sentence.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.167 OF 2006



BALDEV                                                                 SINGH
...Appellant

                                   Versus

STATE                               OF                               HARYANA
...Respondent



                               J U D G M E N T



R. BANUMATHI, J.


      Challenge in this appeal is the judgment dated  29.05.2003  passed  by
the High Court of Punjab and Haryana in Criminal Appeal No.39-DBA  of  1995,
wherein the High Court reversed the judgment  of  acquittal  passed  by  the
Sessions Judge, Sirsa and convicted the appellant under Section  15  of  the
Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS  Act)  on  account
of having been found in possession  of  poppy  husk  and  sentenced  him  to
undergo rigorous imprisonment  for  twelve  years  and  to  pay  a  fine  of
Rs.1,50,000/- and in  default  to  undergo  rigorous  imprisonment  for  six
months.
2.    Briefly stated case of the prosecution is that  on  16/17.09.1990  mid
night at about 12.15 a.m., Chander  Singh-SI  alongwith  Ram  Singh-ASI  and
team of police personnel with Government Jeep No. HNN  3108  and  a  private
jeep were holding Nakabandi on both sides of Kacha path leading  to  village
Kingre from G.T. Road for detection of the  contraband.   At  that  time,  a
tractor No.RJV 6299 with trolley was  heading  towards  the  road  from  the
village and the same was stopped and the appellant was  apprehended  and  he
was inquired about the gunny bags of poppy husk lying in the  trolley.   The
appellant was served with a written notice to the effect that as to  whether
he wanted to be examined before First Class Magistrate or  Gazetted  Officer
in connection with the  recovery  of  poppy  husk  from  his  trolley.   The
appellant had shown faith in Sub Inspector-Chander Singh and  as  per  rules
Sub-Inspector searched the trolley.   Thirty  three  yellow  coloured  gunny
bags containing poppy husk were  recovered  from  the  trolley  attached  to
tractor and on weighing the  bags,  each  bag  was  found  to  be  of  forty
kilograms i.e. in total about thirteen  quintals  and  twenty  kilograms  of
poppy husk was recovered.  From each bag, sample of hundred grams was  taken
out and parcels were made and remaining poppy husk lying in the  gunny  bags
were sealed with seal ‘CS’ and were seized and taken into police  possession
alongwith the said tractor with its trolley. On the  basis  of  rukka,  case
bearing No.234 dated 17.09.1990 under Sections 15, 16,  61  and  85  of  the
NDPS Act was registered at P.S. Sadar, Dabwali.  Subsequently, samples  were
sent for chemical analysis and were found to be poppy straw.  On  completion
of investigation, chargesheet was filed under Sections  15  and  16  of  the
NDPS Act.
3.    To substantiate the charges against  the  appellant,  the  prosecution
examined only one witness Ram Singh-ASI-PW-1,  affidavits  of  MHC  Mohinder
Singh and Constable Om Prakash and also the documents including  FSL  Report
were filed.   Sessions Judge,  Sirsa  vide  its  judgment  dated  22.04.1994
acquitted the appellant observing that no other witness except Ram Singh-PW-
1 was examined and that Ram Singh-PW-1’s evidence  was  not  trustworthy  to
base the conviction. Aggrieved by the verdict of acquittal, State  preferred
appeal before the High Court of Punjab and Haryana at Chandigarh.  The  High
Court  vide  impugned  judgment  reversed  the  judgment  of  acquittal  and
convicted the appellant under Section 15 of NDPS Act and  sentenced  him  to
undergo rigorous imprisonment and imposed fine as aforesaid. Aggrieved,  the
appellant has filed the instant appeal.
4.          Learned Senior Counsel for the appellant Mr. Anmol Rattan  Sidhu
submitted that Chander Singh-SI was an  important  witness  as  he  was  the
person who held the Nakabandi and  prepared  rukka  and  non-examination  of
Chander Singh is fatal to the  prosecution  case.   It  was  contended  that
testimony of Ram Singh-  PW-1 does not warrant credibility as he  could  not
have been present at two places i.e. at the place of  arrest  of  appellant-
Baldev Singh and also  at  the  place  of  arrest  of  one  Bhoop  Singh  in
connection with another FIR bearing No.235 dated 17.09.1990  at  P.S.  Sadar
at 5.30 a.m. in which one Bhoop Singh  was  arrested  while  carrying  opium
which renders the presence of Ram Singh-ASI in the place of recovery  highly
doubtful which aspect was not properly appreciated by  the  High  Court  and
the High Court erred in convicting the appellant on the  sole  testimony  of
Ram Singh-ASI.
5.    Per contra,  learned  counsel  for  the  respondent  Mr.  Amit  Kumar,
Additional Advocate General submitted that the recovery was at odd hours  in
night, prosecution cannot be expected to  examine  independent  witness  and
public witness, who happened to reach the spot when requested  to  join  the
police party but they refused to join.  It was further  contended  that  the
sole testimony of Ram Singh-ASI is trustworthy and  the  appellant  had  not
offered any satisfactory explanation for the  huge  quantity  of  contraband
and the High Court  rightly  reversed  the  acquittal  and  the  verdict  of
conviction warrants no interference.
6.    We have carefully considered the  rival  contention  advanced  by  the
parties and perused the impugned judgment and material on record.
7.          Case of prosecution hinges on the testimony of sole witness  Ram
Singh-PW-1.  Undisputedly, Ram Singh-PW-1 was the member  of  the  Nakabandi
party headed by Chander Singh-SI on the night of 16/17.09.1990.  Admittedly,
Ram Singh signed all the documents and also witness to  the  recovery  memo.
Even after searching cross-examination, evidence of Ram  Singh-PW-1  remains
unshaken.
8.          On the midnight of 16/17.09.1990,  when  the  police  party  was
holding Nakabandi on both sides of Kacha  path  leading  to  village  Kingre
from  G.T.  Road,  the  tractor  was  intercepted  and  the  driver  of  the
tractor–appellant was apprehended under suspicion at odd hours of  midnight,
prosecution cannot be expected to  examine  independent  witnesses.  In  his
cross-examination, PW-1 stated that two persons had come  at  the  place  of
Nakabandi in the midnight and they were asked to join, but they  refused  to
join.  In  the  circumstances  of  the  case,  when  there  is  satisfactory
explanation for non-examination of independent witnesses, conviction can  be
based solely on the testimony of official  witnesses  if  evidence  of  such
official witnesses inspires confidence.
9.          The accused sought to place reliance on  the  decision  in  Gyan
Singh and Ors. v. State of U.P., 1995 Supp (4) SCC 658,  wherein this  Court
observed that conviction cannot be  based  on  uncorroborated  testimony  of
official witnesses. But this judgment has no  relevance  in  the  facts  and
circumstances of the case as  in  Gyan  Singh’s  case  (supra),  this  Court
focused on the need to have independent witnesses in the odd hours in  night
as at the distance of 100 yards there was  habitation  but  in  the  instant
case no such material is brought on record to  show  that  there  was  human
habitation in the nearby place.
10.         There is no legal proposition that evidence of police  officials
unless  supported  by  independent  evidence  is  unworthy  of   acceptance.
Evidence of police witnesses cannot be discarded merely on the  ground  that
they belong to police force and interested in the  investigation  and  their
desire to see the success of the case.   Prudence however requires that  the
evidence of police officials who  are  interested  in  the  outcome  of  the
result of the case needs  to  be  carefully  scrutinized  and  independently
appreciated.  Mere fact that they are police officials does  not  by  itself
give rise to any doubt about their creditworthiness.
11.         Observing that no infirmity is  attached  to  the  testimony  of
police officials merely  because  they  belong  to  police  force  and  that
conviction can be based on  the  testimony  of  police  officials  in  Girja
Prasad (dead) by LRs. vs. State of M.P.,  AIR 2007 SCW 5589 = (2007)  7  SCC
625, it was  held as under:-

“[24] In our judgment, the above proposition does not lay down  correct  law
on the point. It is well-settled that  credibility  of  witness  has  to  be
tested on the touchstone of truthfulness and trustworthiness.  It  is  quite
possible that in a given case, a  Court  of  Law  may  not  base  conviction
solely on the evidence of Complainant or a Police Official  but  it  is  not
the law that police witnesses should not be relied upon and  their  evidence
cannot be accepted unless it is  corroborated  in  material  particulars  by
other independent evidence. The presumption that every person acts  honestly
applies as much in favour of a Police  Official  as  any  other  person.  No
infirmity attaches to the testimony of Police Officials merely because  they
belong to Police Force. There is no rule of law  which  lays  down  that  no
conviction can be recorded on the testimony  of  Police  Officials  even  if
such evidence is otherwise reliable and trustworthy. The  rule  of  prudence
may require more careful scrutiny of their evidence. But, if  the  Court  is
convinced that what was stated by a witness has a ring of truth,  conviction
can be based on such evidence.


[25] It is not necessary to refer to various  decisions  on  the  point.  We
may, however, state that before more than  half-a-century,  in  the  leading
case  of  Aher  Raja  Khima  v.  State  of  Saurashtra,  AIR  1956  SC  217,
Venkatarama Ayyar, J. stated:


"The presumption that a person acts honestly applies as much in favour of  a
police officer as of other persons, and  it  is  not  judicial  approach  to
distrust and suspect him without good grounds  therefor.  Such  an  attitude
could do neither credit to the magistracy nor good to  the  public.  It  can
only  run  down  the  prestige  of  the  police  administration".  (emphasis
supplied)


[26] In Tahir v. State (Delhi), (1996) 3 SCC 338,  dealing  with  a  similar
question, Dr. A.S. Anand, J. (as His Lordship then was) stated:


"Where the  evidence  of  the  police  officials,  after  careful  scrutiny,
inspires confidence and is found to be  trustworthy  and  reliable,  it  can
form basis of conviction and the absence of some independent witness of  the
locality to lend corroboration to  their  evidence,  does  not  in  any  way
affect the creditworthiness of the prosecution case.”

12.         Testimony  of  Ram  Singh-PW-1  and  evidence  on  record  amply
establishes physical possession of the  contraband  by  the  appellant.  The
appellant being the driver of the vehicle by  all  probabilities  must  have
been aware of the contents of the bags transported in the  trolley  attached
to the tractor.  Once the physical  possession  of  the  contraband  by  the
accused has been proved, Section 35 of the NDPS Act comes into play and  the
burden shifts  on  the  appellant-accused  to  prove  that  he  was  not  in
conscious possession of the contraband.  Section 35 of the  NDPS  Act  reads
as under:-
      35. Presumption of culpable   mental  state.—(1)  In  any  prosecution
for an offence  under this Act which requires a culpable   mental  state  of
the accused, the Court shall  presume the existence  of such  mental   state
but it shall be  a defence  for the accused to prove   the  fact    that  he
had no such mental  state with respect to the act charged as an  offence  in
that prosecution.
       Explanation.—In  this  section  “culpable  mental   state”   includes
intention, motive knowledge  of  a   fact  and  belief  in,  or  reason   to
believe, a fact.
(2)   For the purpose of this section, a fact is  said  to  be  proved  only
when the court believes it to  exist  beyond  a  reasonable  doubt  and  not
merely when its existence is established by a preponderance of  probability.


Explanation to sub-section (1)  of  Section  35  expanding  the  meaning  of
‘culpable mental state’  provides  that  ‘culpable  mental  state’  includes
intention, knowledge of a fact and believing or reason to believe  a   fact.
Sub-section (2) of Section 35 provides that for the purpose of  Section  35,
a fact is said to be proved only when the Court believes it to exist  beyond
a reasonable doubt and not merely when its existence  is  established  by  a
preponderance of the probability. Once the possession of the  contraband  by
the accused has been established, it is for the  accused  to  discharge  the
onus of proof that he was not in  conscious  possession.   Burden  of  proof
cast on the accused under Section 35 of  the  NDPS  Act  can  be  discharged
through different modes.  One of such modes is that the accused can rely  on
the materials available in the prosecution case  raising  doubts  about  the
prosecution case.  The accused may also adduce other  evidence  when  he  is
called upon to enter on his defence.  If the circumstances appearing in  the
prosecution case give reasonable assurance to the  Court  that  the  accused
could not have had the knowledge of the required intention, the burden  cast
on him under Section 35 of the NDPS Act would stand discharged even  if  the
accused had not adduced any other evidence of his  own  when  he  is  called
upon to enter on his defence.
13.         In Abdul Rashid Ibrahim Mansuri vs. State  of  Gujarat,      AIR
2000 SC 821, this Court has clearly held that where an accused  admits  that
narcotic drugs were recovered from bags that were found  in  his  possession
at the time of his apprehension,  in terms of   Section 35 of NDPS  Act  the
burden of proof is then upon him to prove that he had no knowledge that  the
bags contained such a  substance.   This  Court  then  went  further  on  to
explain as to the standard of proof that such  an  accused  is  expected  to
discharge and the modes vide which he can discharge  the  said  burden.   In
paras (21) and (22) of the said judgment, this Court held as under:-
“21. No doubt, when the  appellant  admitted  that  the  narcotic  drug  was
recovered from the gunny bags stacked in the  autorickshaw,  the  burden  of
proof is on him to prove that he had no knowledge about the fact that  those
gunny bags contained such  a  substance.  The  standard  of  such  proof  is
delineated in sub-section (2) as “beyond a reasonable doubt”. If the  court,
on an appraisal of the  entire  evidence  does  not  entertain  doubt  of  a
reasonable degree that he had real knowledge of the nature of the  substance
concealed  in  the  gunny  bags  then  the  appellant  is  not  entitled  to
acquittal. However, if the  court  entertains  strong  doubt  regarding  the
accused’s awareness about the nature of the substance in the gunny bags,  it
would be a miscarriage of criminal justice to convict  him  of  the  offence
keeping such strong doubt undispelled. Even so, it is  for  the  accused  to
dispel any doubt in that regard.

22. The burden of proof  cast  on  the  accused  under  Section  35  can  be
discharged through  different  modes.  One  is  that  he  can  rely  on  the
materials available in the prosecution evidence. Next  is,  in  addition  to
that, he can  elicit  answers  from  prosecution  witnesses  through  cross-
examination to dispel any such doubt. He  may  also  adduce  other  evidence
when he is called  upon  to  enter  on  his  defence.  In  other  words,  if
circumstances appearing in  the  prosecution  case  or  in  the  prosecution
evidence are such as to give reasonable assurance  to  the  court  that  the
appellant could not have had the knowledge or the  required  intention,  the
burden cast on him under Section 35 of the Act would stand  discharged  even
if he has not adduced any other evidence of his own when he is  called  upon
to enter on his defence.”(Emphasis added)


14.         In the light of the above principles, what is to be examined  in
the  present  case  is  whether  the  accused-appellant  has  been  able  to
discharge the burden of proof cast upon him under Section  35  of  the  NDPS
Act. The appellant has raised doubts about the prosecution  case  mainly  on
two aspects viz.; (i)  evidence  of   sole  witness  Ram  Singh-ASI  is  not
trustworthy and (ii) non-examination of Chander Singh-SI  who  prepared  the
rukka.
15.         To assail the prosecution case, it was contended that Ram Singh-
PW1’s testimony cannot be relied upon as PW-1 has stated  that  he  remained
busy in the investigation in the present case for    7-8 hours  but
the fact that Ram Singh has been associated in the investigation of  another
FIR No.235 dated 17.09.1990 relating to  Police  Station  Sadar  Dabwali  at
5.30 a.m.  in  which  one  Bhoop  Singh  was  arrested  while  carrying  one
kilogram  and  hundred  grams  opium,  which  according  to  the  appellant,
renders the presence of Ram Singh-ASI in the instant case  highly  doubtful.
The learned Sessions Judge accepted the above submission  of  the  appellant
to hold that evidence of Ram  Singh-ASI  does  not  inspire  confidence.  As
observed by the High Court,  the  learned  Sessions  Judge  overlooked  that
there is no evidence as to the distance between the places  of  recovery  in
both the cases.  As observed by the High Court, it has come on  record  that
in both the FIRs the place of occurrence has been stated as   “in  the  area
of Village Kingre, at a distance of 18 K.M. towards  the  East,  Deh.No.33”.
It appears from the above entry in the FIR, that  the  place  of  occurrence
was the same for both the FIRs recorded on that night.   The  case  relating
to Bhoop Singh in FIR  No.235  resulted  in  acquittal.   Referring  to  the
acquittal of Bhoop Singh, High Court observed that the  same  would  warrant
an inference that what is incorporated in FIR No.234 is incorrect  and  that
defence has not been able to make any dent in the testimony  of  Ram  Singh-
ASI to discard his evidence as untrustworthy.   We find no reason to take  a
different view.
16.         Contention at the hands of the learned Senior  Counsel  for  the
appellant is that non-examination of Chander  Singh-SI  who  prepared  rukka
and who investigated the case raises serious doubts  about  the  prosecution
case. Material on record would show that Chander Singh-SI  who  investigated
the  case  was  not  examined  by  the  prosecution  in  spite  of   several
opportunities.  No doubt, it is always desirable  that  prosecution  has  to
examine the investigating officer/police officer  who  prepared  the  rukka.
Mere non-examination of investigating officer does not in every  case  cause
prejudice to the accused or  affects  the  credibility  of  the  prosecution
case.  Whether or not any prejudice has been caused  to  the  accused  is  a
question of fact to be determined in each case.  Since Ram Singh-PW-1 was  a
part of the police party and PW-1 has signed in  all  recovery  memos,  non-
examination of Chander Singh-SI could not have caused any prejudice  to  the
accused in this case nor does it affect the credibility of  the  prosecution
version.
17.         In his statement under Section 313 Cr.P.C.,  no  plea  has  been
taken that the appellant was not in conscious possession of the  contraband.
The appellant has only pleaded that he being falsely implicated and  that  a
false case has been foisted against  him  in  the  police  station.  In  his
statement under Section 313 Cr.P.C., the appellant had not  stated  anything
as to why would the police foist the false case against the  appellant.   It
is to be noted that huge quantity of poppy  straw  was  recovered  from  the
possession of the  appellant.   Admittedly,  the  police  officials  had  no
previous enmity with the  appellant.  It  is  not  possible  to  accept  the
contention of the appellant that he is being falsely  implicated  as  it  is
highly improbable that such a huge quantity has been arranged by the  police
officials in order to falsely implicate the appellant.
18.         In his  statement  under  Section  313  Cr.P.C.,  the  appellant
denied the allegations against him and  stated  that  he  has  been  falsely
implicated and to  substantiate  his  defence,  the  appellant  adduced  two
documents Exs.D1 and D2.  Ex.D1 is a certified copy of the FIR No.235  dated
17.09.1990 under Sections 17 and  18  of  the  NDPS  Act  relating  to  case
against Bhoop Singh and Ex.D2 is a copy of the judgment acquitting the  said
Bhoop Singh.  Of course,  case  against  Bhoop  Singh  originated  from  FIR
No.235 dated 17.09.1990 registered at  5.30  a.m.  ended  in  acquittal  but
acquittal of Bhoop Singh in the said case  does not render  the  prosecution
case against the appellant-Baldev Singh doubtful.
19.         From the evidence led by the prosecution,  it  has  been  proved
beyond reasonable doubt that the accused being the  driver  of  the  tractor
was in conscious possession of the thirty three bags of poppy  husk  in  the
trolley attached to the tractor. Upon appreciation of evidence,  High  Court
rightly reversed the acquittal and convicted the appellant under Section  15
of the NDPS Act. The occurrence was in the year 1990 and the  appellant  has
suffered a protracted proceeding of about twenty five years.  In  the  facts
and circumstances of the case, the sentence of imprisonment imposed  on  the
appellant is reduced from twelve years to ten years.
20.         The conviction of the appellant under Section  15  of  the  NDPS
Act is confirmed and the sentence of imprisonment imposed on  the  appellant
is reduced to ten years and the appeal is partly allowed.  The appellant  is
on bail and his bail bonds  are  cancelled.  The  appellant  be  taken  into
custody forthwith to serve the remaining part of the sentence.

                                                        .………..…..…………………..J.
                                                                    (JAGDISH
SINGH KHEHAR)

                                                       ....………..……………………..J.
                                                  (R. BANUMATHI)
New Delhi;
November  4, 2015












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