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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

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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

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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

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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.

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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.

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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

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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

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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.

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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

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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.  

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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

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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

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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

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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,

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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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