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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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