MAKHAN SINGH Vs STATE OF HARYANA
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-000682-000682 / 2015
Diary number: 41149 / 2012
Advocates: CHANCHAL KUMAR GANGULI Vs
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 682 OF 2015 (Arising out of S.L.P. (Crl.) No.458 of 2013)
Makhan Singh … Appellant
Versus
State of Haryana … Respondent
J U D G M E N T
R. BANUMATHI, J.
Delay condoned. Leave granted.
2. This appeal arises out of the judgment dated
10.12.2007 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No.777-SB of 1996, whereby the
High Court affirmed the conviction of the appellant under
Section 15 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short ‘the NDPS Act’) and also the sentence of
imprisonment of ten years along with a fine of Rs.1,00,000/-
imposed on the appellant.
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3. Briefly stated case of prosecution is that on 27.07.1994,
the police officials during patrolling, when talking with one
Manjeet Singh-PW1 and Gamdur Singh-DW2, saw the
suspicious ‘fitter-rehra’ (a vehicle) driven by the appellant.
Police intercepted the vehicle and questioned the appellant
about his whereabouts, and found some dubious bags lying in
the vehicle. Before searching the bags, police intimated to the
appellant that instead of being searched by police whether he
wishes to be searched by a Gazetted Officer or a Magistrate
and the appellant declined to be searched by them and a
consent memo (Ext.PA) was drawn. Then, the police in the
presence of independent witnesses, i.e. Manjeet Singh and
Gamdur Singh, conducted the search and during the search,
three bags containing commercial quantity of poppy husk (120
kgms.) were recovered from the appellant’s vehicle. Police
seized the bags, took sample of 200 grams from each of the
bag and sealed them separately, and then sealed the
remaining quantity in separate parcels and deposited the same
with MHC. The sealed samples were sent to Chemical
Examiner, who vide his report (Ext. PK) found the samples to be
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‘Powdered Poppy Husk’. On completion of investigation, police
laid the chargesheet against the appellant under Section 15 of
NDPS Act.
4. Prosecution to prove their case examined as many as
six witnesses. Out of two independent witnesses in the case,
Manjeet Singh-PW1 turned hostile and Gamdur Singh was won
over by the defence and had been examined as defence
witness DW2. Defence examined one more witness, viz.
Jaswant Singh-DW1.
5. The Sessions Court, after considering the evidence held
that the prosecution proved the guilt of the accused beyond all
reasonable doubt and thereby convicted the appellant under
Section 15 of the NDPS Act and sentenced him to undergo
rigorous imprisonment for ten years and to pay a fine of
Rs. 1,00,000/- and in default, to undergo rigorous imprisonment
for two years. Appellant, being aggrieved, filed the appeal
challenging the conviction and sentence of imprisonment
before the High Court. The High Court held that the evidence
of PW6-Inspector Raghbir Singh and PW2-H.C.Suraj Mal is
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unimpeachable and vide impugned judgment dated 10.12.2007
confirmed the conviction of the appellant and dismissed the
appeal.
6. Challenging his conviction, the appellant has
approached this Court with a contention that he has been
falsely implicated in the case and that he was brought from his
house and was put behind the bars. Learned counsel for the
appellant contended that the case of the prosecution is based
solely on the testimony of official witnesses PW2 and PW6 and
much weightage ought not to have been attached to their
testimony, especially by discarding the testimony of both the
defence witnesses. It was submitted that since both the
independent witnesses did not support the prosecution story,
the prosecution has not proved its case beyond reasonable
doubt and this material aspect has been ignored by the courts
below. Appellant also alleges that non-compliance of
mandatory provisions under Sections 50 and 52 of the NDPS
Act vitiates the alleged recovery of contraband.
7. Per contra, learned counsel for the respondent-State
has supported the impugned judgment and submitted that the
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provisions of Section 50 of the NDPS Act has been duly
complied with and the concurrent findings of the courts below
recording the verdict of conviction cannot be interfered with.
8. During the trial, PW1-Manjeet Singh was declared
hostile by the prosecution and another independent witness
Gamdur Singh was examined as defence witness. Both PW1
and DW2 have deposed that the appellant was not arrested in
their presence nor any recovery was made from him. PW1 and
DW2 have further deposed that when they went to police
station for some work, they saw the appellant already in
custody of police and that their signatures were obtained on
the blank papers. In his cross-examination, though DW2 has
admitted that Ext. PB bears his signature at point ‘A’, he
disowned his statement in Ext.PL recorded under Section 161
of the Criminal Procedure Code. Though PW1 turned hostile, his
evidence cannot be discarded as his testimony draws support
from the version of DW1 and DW2.
9. The High Court discarded the evidence of PW1 and
DW2 observing that the independent witnesses hail from the
same village to which accused belongs and the accused might
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have approached the witnesses through respectables of the
village to resile from his statement. That apart, the High Court
also observed that both the independent witnesses did not
explain the circumstances or compulsions in which they had to
sign the blank papers. The reasoning of the High Court is
based more on assumptions than on acceptable basis. When
PW1 and DW2 have asserted that they have signed only the
blank papers, the courts below ought to have considered them
in proper perspective.
10. For recording the conviction, the Sessions Court as well
as the High Court mainly relied on the testimony of official
witnesses who made the recovery, i.e. H.C. Suraj Mal-PW2 and
Inspector Raghbir Singh-PW6, and found them sufficiently
strengthening the recovery of the possession from the
appellant. In our considered view, the manner in which the
alleged recovery has been made does not inspire confidence
and undue credence has been given to the testimony of official
witnesses, who are generally interested in securing the
conviction. In peculiar circumstances of the case, it may not be
possible to find out independent witnesses at all places at all
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times. Independent witnesses who live in the same village or
nearby villages of the accused are at times afraid to come and
depose in favour of the prosecution. Though it is well-settled
that a conviction can be based solely on the testimony of
official witnesses, condition precedent is that the evidence of
such official witnesses must inspire confidence. In the present
case, it is not as if independent witnesses were not available.
Independent witnesses PW1 and another independent witness
examined as DW2 has spoken in one voice that the accused
person was taken from his residence. In such circumstances, in
our view, the High Court ought not to have overlooked the
testimony of independent witnesses, especially when it casts
doubt on the recovery and the genuineness of the prosecution
version.
11. It is to be pointed out that the prosecution misdirected
itself by unnecessarily focusing on Section 50 of the NDPS Act,
when the fact is that the recovery has been made not from the
person of the appellant but from the fitter-rehra which was
allegedly driven by the appellant and, thus, Section 50 of the
NDPS Act had no application at all. The prosecution ought to
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have endeavoured to prove whether the appellant had some
nexus with the seized fitter-rehra. Though the police has
seized the fitter-rehra (Ext. PB), the prosecution has not
adduced any evidence either by examining the neighbours or
others to bring home the point that the appellant was the
owner or possessor of the vehicle. PW6 admitted in his cross-
examination that signature or thumb impression of the
appellant was not obtained on the recovery memo (Ext. PB). In
our opinion, courts below erred in attributing to the appellant
the onus to prove that wherefrom fitter-rehra had come,
especially when ownership/ possession of fitter-rehra has not
been proved by the prosecution.
12. Jaswant Singh, who is a Sarpanch of the village and
was examined as DW1, has supported the defence version that
the appellant was taken away by the police from his home and
he was falsely implicated. When the defence has taken the
specific stand that the appellant was taken from his house by
the police and that stand has been corroborated by the
testimony of DW1, the prosecution ought to have adduced
cogent evidence that the alleged fitter-rehra on which the
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appellant was alleged to be carrying 120 kilograms of poppy
husk belongs to the appellant. Failure to adduce the evidence
connecting the appellant with the fitter-rehra that the
ownership/possession of fitter-rehra with the appellant is fatal
to the prosecution case, benefit of which ought to have been
given to the accused.
13. Both the Sessions Court and the High Court
concurrently held that the mandatory provisions of Section 50
of the NDPS Act have been duly complied with. Sessions Court
observed that it is not necessary that in each and every case
the accused should be produced before the Gazetted Officer or
the Magistrate and if the accused so desires, then only he is to
be produced before either of them. In Ext.PA/1, Investigating
Officer used the word ‘Nyayadeesh’ instead of ‘Magistrate’
does not mean that the Investigating Officer meant something
else.
14. A Constitution Bench of this Court in State of Punjab v.
Baldev Singh, (1999) 6 SCC 172, while dealing with the scope
of Section 50 of the NDPS Act, had emphasized upon the
aspect of availability of right of an accused to have ‘personal
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search’ conducted before a Gazetted Officer or a Magistrate
and held as under:
“32…The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible- it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.”
15. Compliance with Section 50 of the NDPS Act will come
into play only in the case of personal search of the accused and
not of some baggage like a bag, article or container, etc. which
the accused may be carrying ought to be searched. In State of
H.P. v. Pawan Kumar, (2005) 4 SCC 350, this Court in Para (11)
has held as under:
“11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a
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gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act.”
Same view was reiterated in Ajmer Singh v. State of Haryana,
(2010) 3 SCC 746.
16. In the present case, since the vehicle was searched
and the contraband was seized from the vehicle, compliance
with Section 50 of the NDPS Act was not required. In the
absence of independent evidence connecting the appellant
with the fitter-rehra, mere compliance with Section 50 of the
NDPS Act by itself would not be sufficient to establish the guilt
of the appellant. It is a well-settled principle of the criminal
jurisprudence that more stringent the punishment, the more
heavy is the burden upon the prosecution to prove the offence.
When the independent witnesses PW1 and DW2 have not
supported the prosecution case and the recovery of the
contraband has not been satisfactorily proved, the conviction of
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the appellant under Section 15 of the NDPS Act cannot be
sustained.
17. Section 15 provides for punishment for contravention in
relation to poppy straw. The maximum punishment provided in
the section is imprisonment of twenty years and fine of two
lakh rupees and minimum sentence of imprisonment of ten
years and a fine of one lakh rupee. Since in the cases of NDPS
Act the punishment is severe, therefore strict proof is required
for proving the search, seizure and the recovery.
18. The conviction of the appellant and the sentence
imposed on him is set aside and this appeal is allowed. Fine
amount of Rs.1,00,000/-, if paid, is ordered to be refunded to
the appellant. The appellant is ordered to be set at liberty
forthwith unless required in any other case.
..……………………J. (T.S. Thakur)
..……………………J. (R. Banumathi) New Delhi; April 21, 2015.
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