MAKHAN SINGH Vs. STATE OF HARYANA

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 682 of 2015, Judgment Date: Apr 21, 2015

                                                                  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.
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 '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  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  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  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 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 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  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 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 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 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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