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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.

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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  

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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.

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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  

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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  

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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  

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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)  

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[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  

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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  

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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)

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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  

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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  

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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  

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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.  

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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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