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mere filing affidavit is enough to prove his case = It was also urged that since the statement of accused recorded in Section 313 proceedings coupled with the affidavit of one Maan Singh (at page 30 of Vol. II of appeal paper book marked as Annexure-A/3) was neither taken into consideration and much less appreciated and, therefore, the appellant's conviction is rendered bad in law. = Mere filing an affidavit in Sec.313 examination with out subjecting the witness for examination and cross examination is not enough = It is also not in dispute that the affidavit relied upon by the appellant of one Maan Singh (Annexure-A/3) was not proved in evidence in as much as Maan Singh was neither examined nor cross-examined. ; Scope of Second Appeal = It is more so when both the Courts have concurrently recorded a finding against the appellant after appreciating the evidence. In the absence of any kind of extreme perversity and arbitrariness noticed by this Court in the findings of the High Court, we are afraid we can undertake such exercise at this stage.= Indeed, in the light of evidence adduced by the prosecution, which indisputably remained un-rebutted, the two Courts below were justified in placing reliance on such evidence for recording the finding of conviction against the appellant. We concur with these findings and uphold the conviction.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 957 OF 2015



Mahiman Singh                           Appellant(s)



                             VERSUS



State of Uttrakhand                      Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre,J.

1)    This appeal is filed  against  the  final  judgment  and  order  dated
22.07.2013 passed by the High Court of Uttrakhand at Nainital   in  Criminal
Appeal No. 311 of 2002  whereby the  High Court dismissed the  appeal  filed
by  the  appellant  herein  and  affirmed  the  judgment  and  order   dated
27.11.2002 passed by the Special Judge, Pithoragarh in  Sessions  Trial  No.
17 of 1996 convicting the appellant herein under Section 20 of the  Narcotic
Drugs and Psychotropic Substances Act,  1985  (hereinafter  referred  to  as
“the NDPS Act”) and sentenced him to undergo rigorous imprisonment  for  ten
years with a fine of Rs. One lakh, in default,  to  undergo  further  simple
imprisonment for three years.

2)    Brief facts:

On an information received on 09.07.1996 at about 10.00 a.m. in the  morning
that in Jeep No. UP 03-1113 going from Dharchula to Pithoragarh,  a  boy  is
carrying Charas in a bag, the police team went at the  Gauripul  check  post
and at about 11.00 a.m. the said Jeep arrived at the  check  post  Gauripul,
it was stopped.  When the jeep was checked, it was found that  one  boy  was
sitting in its middle seat with a bag on his lap.   On  being  asked  as  to
what was in his bag, he became nervous.  On suspicion, the  bag  was  lifted
and the same felt to contain heavy  materials  and  on  smelling  gave  foul
smell  of  Charas.   When  it  became  certain  that  this   was   certainly
contraband, the name and address of the boy was asked and he told  that  his
name was Mahiman Singh, resident of Garbyal  Khera,  P.S.  Dharchula,  Dist.
Pithoragarh.  Thereafter he was asked as to which  gazetted  officer  or  of
which magistrate presence, he wanted search of his bag.  On being asked,  he
apologized.  Immediately, he was taken to the  office  of  S.D.M.  Dharchula
along with companion police staff in official jeep where it was  found  that
the S.D.M. and Tehsildar were not present there.  Thereafter  he  was  taken
to Nayab Tehsildar and in the presence of Shri Bansi Lal  Rana,  Magistrate,
the search was made and inside the said bag charas of 2 kg. and 100 gm.  was
found. The authorities then took 100 gm. Charas for its examination  in  the
Laboratory and after taking the sample, it  was  sealed  and  the  remaining
Charas was kept in light green  colour  polythene  bag.  The  bag  was  then
sealed.  Informing the accused of the offence which  he  has  committed,  he
was then taken into custody.

3)    On the basis of the recovery,  at  4.00  p.m.  a  FIR  was  registered
against the appellant-accused at the P.S. Jauljibi under Section 20  of  the
NDPS  Act.   The  case  was  committed  to  the  Court  of  Special   Judge,
Pithoragarh under Sessions Trial No. 17 of 1996.

4)    After examination of witnesses and recording of  the  statements,  the
Special Judge,  by  order  dated  27.11.2002,  found  the  appellant-accused
guilty of the offence punishable under  Section  20  of  the  NDPS  Act  and
sentenced him to undergo imprisonment for ten years with labour and fine  of
Rs.  One  lakh,  in  default  to  pay  fine,  to  undergo   further   simple
imprisonment for three years.

5)    Aggrieved by the order of the conviction and sentence  passed  by  the
Trial Court, the appellant filed an appeal being Criminal Appeal No. 311  of
2002 before the High Court.

6)    The High Court, by impugned judgment/order dated 22.07.2013  dismissed
the appeal and affirmed the order of conviction and sentence passed  by  the
Trial Court.

7)    Aggrieved by the said judgment/order, the  appellant  has  filed  this
appeal by way of special before this Court.

8)    Heard Mr. Mahabir Singh, learned senior counsel for the appellant  and
Mr. Rahul Kaushik, learned counsel for the respondent-State.

9)    Mr. Mahabir Singh, learned Senior counsel for  the  appellant(accused)
while  assailing  the  legality  and  correctness  of  the  impugned   order
contended that both the Courts below erred in convicting the  appellant  for
the offence punishable under  Section  20  of  the  NDPS  Act.  It  was  his
submission that Firstly, there was no evidence to  sustain  the  conviction;
Secondly, the evidence adduced by the prosecution was  also  not  sufficient
to warrant the appellant's conviction; Thirdly, compliance  of  requirements
of Sections 42, 43 read with Section 50 of the NDPS Act was  also  not  done
as explained by this Court in several  decided  cases  and,  therefore,  the
appellant's conviction is rendered bad in  law.   It  was  also  urged  that
since the statement of accused recorded in Section 313  proceedings  coupled
with the affidavit of one Maan Singh (at page 30 of Vol. II of appeal  paper
book marked as Annexure-A/3) was neither taken into consideration  and  much
less appreciated and, therefore, the appellant's conviction is rendered  bad
in law.

10)   Learned  counsel  elaborated  his  submissions  by  referring  to  the
evidence and contended that if the issues urged by him are examined  in  its
proper perspective  keeping  in  view  the  evidence  then  the  appellant's
conviction becomes unsustainable and deserves to be set aside.

11)   In reply, learned counsel for the respondent  supported  the  impugned
judgment and contended that  no  case  is  made  out  to  interfere  in  the
impugned judgment. It was his submission that Firstly, the evidence  adduced
by the prosecution is sufficient to warrant the appellant's  conviction  and
secondly, the requirements of Sections 42, 43 read with 50 of the  NDPS  Act
have been complied with in letter and spirit and lastly, since the  deponent
of an affidavit was not examined as witness, no reliance can  be  placed  on
such self-speaking affidavit.

12)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in this appeal.

13)   In our considered opinion, two Courts  below  rightly  held  that  the
prosecution was able to  prove  their  case  against  the  appellant  beyond
reasonable doubt and that  the  evidence  adduced  by  the  prosecution  was
sufficient to warrant the appellant's conviction. It was also held that  all
the requirements of relevant Sections, which had application  to  the  case,
were complied with at the time of search made  from  the  appellant  thereby
leaving no infirmity  of  any  nature  in  their  compliance  including  the
procedure prescribed therein for making searches etc.

14)   We find from the record of the case that the  prosecution proved  with
the aid of evidence that the search was made in public place.  It  has  also
come in evidence that it  was  carried  out  in  the  presence  of  gazetted
officer and was done after giving an offer  to  the  appellant  as  required
under the NDPS Act. It has also  come  in  evidence  that  quantity  of  the
contraband  recovered  from  the  appellant  was  commercial  in  nature  as
prescribed in the Schedule to the NDPS Act.

15)   It is also not in dispute that the  appellant  failed  to  adduce  any
evidence  in  defence  except  to  record  his  statement  in  Section   313
proceedings taking therein a plea of denial. It is also not in dispute  that
the affidavit relied upon by the appellant of one Maan Singh  (Annexure-A/3)
was not proved in evidence in as much as Maan  Singh  was  neither  examined
nor cross-examined.

16)   In these circumstances, in our view, the two Courts below rightly  did
not consider such affidavit as evidence, which was of no use and  could  not
be construed as piece of evidence for deciding the rights of the parties.

17)   One of the submissions of the learned counsel for  the  appellant  was
that one witness by name - Pradhan  though  named  in  the  record  was  not
examined by the prosecution and, therefore, his non-examination is fatal  to
the prosecution case and has rendered  the  appellant's  conviction  bad  in
law. The submission has no merit.

18)   In our opinion, if the evidence adduced by the prosecution  was  found
sufficient to warrant the conviction then  it  was  not  necessary  for  the
prosecution to examine all  the  witness  cited  by  them.  It  is  for  the
prosecution to decide as to how many witnesses they consider  it  proper  to
examine to prove their case against the accused and whether  their  evidence
would be sufficient to warrant the conviction of the accused. Thereafter  it
is for the Court to assess and appreciate the evidence adduced to see as  to
whether it is  sufficient  to  sustain  conviction  with  the  aid  of  such
evidence or not.

19)   In this case, we find that the witnesses examined by  the  prosecution
were able to prove the prosecution case beyond reasonable  doubt  and  hence
even if one or two witnesses though cited initially were later given  up  by
the prosecution, the same did not adversely affect the prosecution  case  in
any manner. In other  words,  the  conviction  could  be  sustained  on  the
evidence adduced and was rightly held to sustain in this case.

20)   Learned counsel for the appellant then read  out  almost  entire  oral
evidence of all the witnesses examined by the prosecution and  contended  by
making sincere attempt that this Court should appreciate  the  evidence  and
then record a finding of acquittal by drawing inferences suggested  by  him.


21)   We do not think that we can do this exercise again in this appeal.  It
could be done in the Trial Court and then in appeal before  the  High  Court
and was in fact done by two Courts but not in this appeal.  It  is  more  so
when both the Courts  have  concurrently  recorded  a  finding  against  the
appellant after appreciating the evidence. In the absence  of  any  kind  of
extreme perversity and arbitrariness noticed by this Court in  the  findings
of the High Court, we are afraid we can  undertake  such  exercise  at  this
stage.

22)   Learned counsel for the appellant, however,  placed  reliance  on  the
decisions of this Court  in State of Punjab vs. Baldev Singh, (1999)  6  SCC
172  and Sukhdev Singh vs. State of Haryana,  (2013)  2  SCC  212.  We  have
perused these decisions. In our opinion,  there can be no quarrel  with  the
proposition of law laid down in these decisions.  However,  we  are  of  the
view that these decisions are distinguishable on facts and hence are  of  no
help to the appellant.

23)   We are, therefore, unable to appreciate any of the submissions of  the
learned counsel for the appellant though urged with ability. Indeed, in  the
light of evidence adduced by the prosecution,  which  indisputably  remained
un-rebutted, the two Courts below were  justified  in  placing  reliance  on
such  evidence  for  recording  the  finding  of  conviction   against   the
appellant. We concur with these findings and uphold the conviction.

24)    In view of foregoing discussion, we find no  merit  in  this  appeal,
which fails and is accordingly dismissed.



                                    .……...................................J.
                [ABHAY MANOHAR SAPRE]



                                     ………..................................J.
                [ASHOK BHUSHAN]

New Delhi,
            June 29, 2016
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