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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL     APPEAL     NO.828      OF     2008    

RADHEY SHYAM  APPELLANT                  VERSUS UNION OF INDIA                           RESPONDENT

O     R     D     E     R   

1. Being aggrieved by the judgment and order  passed by the High Court of Judicature of Madhya  Pradesh in Criminal Appeal No. 369 of 2003, dated  05.12.2006, the appellant is before us in this  appeal.  By the impugned judgment and order, the  High Court has confirmed the judgment and order  passed by the learned Special Judge (under the  Narcotic, Drugs and Psychotropic Substances Act,  1985) in Sessions Trial No.76/2002, dated  31.01.2003.

2. The appellant-accused is alleged to have sold  10 bags of poppy husk (total quantity of about 162  Kg.) for Rs.1500/- to other two co-accused Bhuma and  Rama, who were found in possession of the said poppy

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husk.  The only evidence that was led by the  Prosecution, insofar as the appellant is concerned,  is the statement made by the appellant under Section  67 of the Narcotic, Drugs and Psychotropic  Substances Act, 1985 (hereinafter, for the sake  brevity, referred to as “the NDPS Act”).  Based on  the aforesaid statement so made, the learned  Sessions Judge has convicted and sentenced the  appellant to rigorous imprisonment for a period of  10 years with fine of Rs.1 lac under Section 8 read  with Section 15(c) of the NDPS Act.

3. It is the aforesaid order which was questioned  by the appellant before the High Court in Criminal  Appeal No. 369 of 2003. As we have already noticed,  the High Court has confirmed the orders passed by  the learned Sessions Judge.

4. Shri Ranbir Singh Kundu, learned counsel  appearing for the appellant, would contend that the  learned Sessions Judge ought not to have placed  total reliance on the statement of the accused made  under Section 67 of the NDPS Act (“the statement”

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for short) and have convicted and sentenced the  appellant for the offence under Section 8 read with  Section 15(c) of the NDPS Act. Exhibit P-19, the  statement supposed to have been made by the accused,  was produced and marked in the evidence of the  Investigating Officer.  According to the learned  counsel, the document is a fabricated document and,  therefore, the learned Sessions Judge ought not have  placed reliance on the said document while  convicting the appellant for the aforesaid offence.  

5. In support of his contention, the learned  counsel has taken us through the evidence of the  Investigating Officer, in particular, his cross- examination. We have carefully perused the statement  recorded when the Investigating Officer was in the  witness box. The suggestion of the learned counsel  for the defence that all proceedings at the  appellant’s house were counter signed by two  witnesses was accepted by the Investigating Officer.  He would go to the extent of saying that the  proceedings which were conducted at the house of the  appellant and the statement of the appellant were

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counter signed by the two witnesses, namely, Radhey  Shyam and Govind.  A further suggestion was made to  the Investigating Officer that since Exhibit P-19  does not bear the signatures of the two witnesses,  the said document is a forged document for which  there is denial by the Investigating Authority.

6.  Shri P.K.Dey, learned counsel appearing for  the Union of India, would submit that the statement  does not require to be counter signed by witnesses  and, therefore, the learned Sessions Judge was  justified in relying upon the statement made by the  appellant under Section 67 of the NDPS Act and  thereby convicting and sentencing the appellant for  the offence stated earlier.

7. Having considered the submissions made by  learned counsel for the parties to the lis, we are  of the opinion that in the present case, the  question that whether the statement requires to be  signed by two witnesses or not does not need any  discussion.  What requires our consideration in this  case is whether the reliance placed by the learned

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Sessions Judge on the statement, Exhibit P-19,  justified or not.  For that purpose the evidence of  the Investigating Officer, who had categorically  stated that the entire proceeding was recorded in  the house of the appellant, needs to be evaluated.  In the said evidence, he further states that when  the proceedings were conducted, two witnesses were  present and the statement of the appellant was  recorded in their presence and they had counter  signed the same.  

8. In order to verify the correctness or  otherwise of the said document, we have looked into  the Original Records.  The said document does not  bear the signatures of the two witnesses.  This  generates a doubt in the mind of this Court that the  document so produced and marked in the evidence may  not be the original statement of the appellant,  recorded under Section 67 of the NDPS Act.  

9. In view of the above, in our opinion, some  doubt would arise with regard to the complicity of  the appellant for the offence under Section 8 read

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with Section 15 (c) of the NDPS Act.  We are,  therefore, of the opinion that the benefit of doubt  requires to be given to the appellant.  Accordingly,  we allow this appeal, set aside the conviction and  sentence awarded by the Trial Court and confirmed by  the High Court, by giving the benefit of doubt to  the appellant.

10. We further direct that the appellant be  released forthwith, if not required in any other  case and any fine amount deposited by the appellant- accused shall be returned forthwith to the  appellant. Since the appellant is on bail, his bail  bonds are discharged.

Ordered accordingly.

.......................J. (H.L. DATTU)

.......................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI; SEPTEMBER 26, 2012