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
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
