Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.167 OF 2006

BALDEV SINGH ...Appellant

Versus

STATE OF HARYANA ...Respondent

J U D G M E N T

R. BANUMATHI, J.

Challenge in this appeal is the judgment dated 29.05.2003

passed by the High Court of Punjab and Haryana in Criminal Appeal

No.39-DBA of 1995, wherein the High Court reversed the judgment of

acquittal passed by the Sessions Judge, Sirsa and convicted the

appellant under Section 15 of the Narcotic Drugs and Psychotropic

Substances Act 1985 (NDPS Act) on account of having been found in

possession of poppy husk and sentenced him to undergo rigorous

imprisonment for twelve years and to pay a fine of Rs.1,50,000/- and

in default to undergo rigorous imprisonment for six months.

1

Page 2 2. Briefly stated case of the prosecution is that on

16/17.09.1990 mid night at about 12.15 a.m., Chander Singh-SI

alongwith Ram Singh-ASI and team of police personnel with

Government Jeep No. HNN 3108 and a private jeep were holding

Nakabandi on both sides of Kacha path leading to village Kingre from

G.T. Road for detection of the contraband. At that time, a tractor

No.RJV 6299 with trolley was heading towards the road from the

village and the same was stopped and the appellant was apprehended

and he was inquired about the gunny bags of poppy husk lying in the

trolley. The appellant was served with a written notice to the effect

that as to whether he wanted to be examined before First Class

Magistrate or Gazetted Officer in connection with the recovery of

poppy husk from his trolley. The appellant had shown faith in Sub

Inspector-Chander Singh and as per rules Sub-Inspector searched the

trolley. Thirty three yellow coloured gunny bags containing poppy

husk were recovered from the trolley attached to tractor and on

weighing the bags, each bag was found to be of forty kilograms i.e. in

total about thirteen quintals and twenty kilograms of poppy husk was

recovered. From each bag, sample of hundred grams was taken out

and parcels were made and remaining poppy husk lying in the gunny

bags were sealed with seal ‘CS’ and were seized and taken into police

2

Page 3 possession alongwith the said tractor with its trolley. On the basis of

rukka, case bearing No.234 dated 17.09.1990 under Sections 15, 16,

61 and 85 of the NDPS Act was registered at P.S. Sadar, Dabwali.

Subsequently, samples were sent for chemical analysis and were

found to be poppy straw. On completion of investigation, chargesheet

was filed under Sections 15 and 16 of the NDPS Act.

3. To substantiate the charges against the appellant, the

prosecution examined only one witness Ram Singh-ASI-PW-1,

affidavits of MHC Mohinder Singh and Constable Om Prakash and

also the documents including FSL Report were filed. Sessions Judge,

Sirsa vide its judgment dated 22.04.1994 acquitted the appellant

observing that no other witness except Ram Singh-PW-1 was

examined and that Ram Singh-PW-1’s evidence was not trustworthy to

base the conviction. Aggrieved by the verdict of acquittal, State

preferred appeal before the High Court of Punjab and Haryana at

Chandigarh. The High Court vide impugned judgment reversed the

judgment of acquittal and convicted the appellant under Section 15 of

NDPS Act and sentenced him to undergo rigorous imprisonment and

imposed fine as aforesaid. Aggrieved, the appellant has filed the

instant appeal.

3

Page 4 4. Learned Senior Counsel for the appellant Mr. Anmol

Rattan Sidhu submitted that Chander Singh-SI was an important

witness as he was the person who held the Nakabandi and prepared

rukka and non-examination of Chander Singh is fatal to the

prosecution case. It was contended that testimony of Ram Singh-

PW-1 does not warrant credibility as he could not have been present

at two places i.e. at the place of arrest of appellant-Baldev Singh and

also at the place of arrest of one Bhoop Singh in connection with

another FIR bearing No.235 dated 17.09.1990 at P.S. Sadar at 5.30

a.m. in which one Bhoop Singh was arrested while carrying opium

which renders the presence of Ram Singh-ASI in the place of recovery

highly doubtful which aspect was not properly appreciated by the

High Court and the High Court erred in convicting the appellant on

the sole testimony of Ram Singh-ASI.

5. Per contra, learned counsel for the respondent Mr. Amit

Kumar, Additional Advocate General submitted that the recovery was

at odd hours in night, prosecution cannot be expected to examine

independent witness and public witness, who happened to reach the

spot when requested to join the police party but they refused to join.

It was further contended that the sole testimony of Ram Singh-ASI is

trustworthy and the appellant had not offered any satisfactory

4

Page 5 explanation for the huge quantity of contraband and the High Court

rightly reversed the acquittal and the verdict of conviction warrants no

interference.

6. We have carefully considered the rival contention advanced

by the parties and perused the impugned judgment and material on

record.

7. Case of prosecution hinges on the testimony of sole

witness Ram Singh-PW-1. Undisputedly, Ram Singh-PW-1 was the

member of the Nakabandi party headed by Chander Singh-SI on the

night of 16/17.09.1990. Admittedly, Ram Singh signed all the

documents and also witness to the recovery memo. Even after

searching cross-examination, evidence of Ram Singh-PW-1 remains

unshaken.

8. On the midnight of 16/17.09.1990, when the police party

was holding Nakabandi on both sides of Kacha path leading to village

Kingre from G.T. Road, the tractor was intercepted and the driver of

the tractor–appellant was apprehended under suspicion at odd hours

of midnight, prosecution cannot be expected to examine independent

witnesses. In his cross-examination, PW-1 stated that two persons

had come at the place of Nakabandi in the midnight and they were

asked to join, but they refused to join. In the circumstances of the

5

Page 6 case, when there is satisfactory explanation for non-examination of

independent witnesses, conviction can be based solely on the

testimony of official witnesses if evidence of such official witnesses

inspires confidence.

9. The accused sought to place reliance on the decision in

Gyan Singh and Ors. v. State of U.P., 1995 Supp (4) SCC 658, wherein

this Court observed that conviction cannot be based on

uncorroborated testimony of official witnesses. But this judgment has

no relevance in the facts and circumstances of the case as in Gyan

Singh’s case (supra), this Court focused on the need to have

independent witnesses in the odd hours in night as at the distance of

100 yards there was habitation but in the instant case no such

material is brought on record to show that there was human

habitation in the nearby place.

10. There is no legal proposition that evidence of police officials

unless supported by independent evidence is unworthy of acceptance.

Evidence of police witnesses cannot be discarded merely on the

ground that they belong to police force and interested in the

investigation and their desire to see the success of the case.

Prudence however requires that the evidence of police officials who are

interested in the outcome of the result of the case needs to be

6

Page 7 carefully scrutinized and independently appreciated. Mere fact that

they are police officials does not by itself give rise to any doubt about

their creditworthiness.

11. Observing that no infirmity is attached to the testimony of

police officials merely because they belong to police force and that

conviction can be based on the testimony of police officials in Girja

Prasad (dead) by LRs. vs. State of M.P., AIR 2007 SCW 5589 = (2007)

7 SCC 625, it was held as under:-

“[24] In our judgment, the above proposition does not lay down correct

law on the point. It is well-settled that credibility of witness has to be

tested on the touchstone of truthfulness and trustworthiness. It is quite

possible that in a given case, a Court of Law may not base conviction

solely on the evidence of Complainant or a Police Official but it is not the

law that police witnesses should not be relied upon and their evidence

cannot be accepted unless it is corroborated in material particulars by

other independent evidence. The presumption that every person acts

honestly applies as much in favour of a Police Official as any other

person. No infirmity attaches to the testimony of Police Officials merely

because they belong to Police Force. There is no rule of law which lays

down that no conviction can be recorded on the testimony of Police

Officials even if such evidence is otherwise reliable and trustworthy. The

rule of prudence may require more careful scrutiny of their evidence.

But, if the Court is convinced that what was stated by a witness has a

ring of truth, conviction can be based on such evidence.

[25] It is not necessary to refer to various decisions on the point. We

may, however, state that before more than half-a-century, in the leading

case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217,

Venkatarama Ayyar, J. stated:

"The presumption that a person acts honestly applies as

much in favour of a police officer as of other persons, and it

is not judicial approach to distrust and suspect him without

good grounds therefor. Such an attitude could do neither

credit to the magistracy nor good to the public. It can only

run down the prestige of the police administration".

(emphasis supplied)

7

Page 8 [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar

question, Dr. A.S. Anand, J. (as His Lordship then was) stated:

"Where the evidence of the police officials, after careful

scrutiny, inspires confidence and is found to be trustworthy

and reliable, it can form basis of conviction and the absence

of some independent witness of the locality to lend

corroboration to their evidence, does not in any way affect

the creditworthiness of the prosecution case.”

12. Testimony of Ram Singh-PW-1 and evidence on record

amply establishes physical possession of the contraband by the

appellant. The appellant being the driver of the vehicle by all

probabilities must have been aware of the contents of the bags

transported in the trolley attached to the tractor. Once the physical

possession of the contraband by the accused has been proved, Section

35 of the NDPS Act comes into play and the burden shifts on the

appellant-accused to prove that he was not in conscious possession of

the contraband. Section 35 of the NDPS Act reads as under:-

35. Presumption of culpable mental state .—(1) In any

prosecution for an offence under this Act which requires a culpable

mental state of the accused, the Court shall presume the existence of

such mental state but it shall be a defence for the accused to prove

the fact that he had no such mental state with respect to the act

charged as an offence in that prosecution.

Explanation.—In this section “culpable mental state” includes

intention, motive knowledge of a fact and belief in, or reason to

believe, a fact.

(2)For the purpose of this section, a fact is said to be proved only

when the court believes it to exist beyond a reasonable doubt and not

merely when its existence is established by a preponderance of

probability.

Explanation to sub-section (1) of Section 35 expanding the meaning of

‘culpable mental state’ provides that ‘culpable mental state’ includes

8

Page 9 intention, knowledge of a fact and believing or reason to believe a

fact. Sub-section (2) of Section 35 provides that for the purpose of

Section 35, a fact is said to be proved only when the Court believes it

to exist beyond a reasonable doubt and not merely when its existence

is established by a preponderance of the probability. Once the

possession of the contraband by the accused has been established, it

is for the accused to discharge the onus of proof that he was not in

conscious possession. Burden of proof cast on the accused under

Section 35 of the NDPS Act can be discharged through different

modes. One of such modes is that the accused can rely on the

materials available in the prosecution case raising doubts about the

prosecution case. The accused may also adduce other evidence when

he is called upon to enter on his defence. If the circumstances

appearing in the prosecution case give reasonable assurance to the

Court that the accused could not have had the knowledge of the

required intention, the burden cast on him under Section 35 of the

NDPS Act would stand discharged even if the accused had not

adduced any other evidence of his own when he is called upon to

enter on his defence.

13. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat,

AIR 2000 SC 821, this Court has clearly held that where an accused

9

Page 10 admits that narcotic drugs were recovered from bags that were found

in his possession at the time of his apprehension, in terms of

Section 35 of NDPS Act the burden of proof is then upon him to prove

that he had no knowledge that the bags contained such a substance.

This Court then went further on to explain as to the standard of proof

that such an accused is expected to discharge and the modes vide

which he can discharge the said burden. In paras (21) and (22) of the

said judgment, this Court held as under:-

“21. No doubt, when the appellant admitted that the narcotic drug was

recovered from the gunny bags stacked in the autorickshaw, the burden

of proof is on him to prove that he had no knowledge about the fact that

those gunny bags contained such a substance. The standard of such

proof is delineated in sub-section (2) as “beyond a reasonable doubt”. If

the court, on an appraisal of the entire evidence does not entertain doubt

of a reasonable degree that he had real knowledge of the nature of the

substance concealed in the gunny bags then the appellant is not entitled

to acquittal. However, if the court entertains strong doubt regarding the

accused’s awareness about the nature of the substance in the gunny

bags, it would be a miscarriage of criminal justice to convict him of the

offence keeping such strong doubt undispelled. Even so, it is for the

accused to dispel any doubt in that regard.

22. The burden of proof cast on the accused under Section 35 can be

discharged through different modes. One is that he can rely on the

materials available in the prosecution evidence. Next is, in addition to

that, he can elicit answers from prosecution witnesses through cross-

examination to dispel any such doubt. He may also adduce other

evidence when he is called upon to enter on his defence. In other words,

if circumstances appearing in the prosecution case or in the prosecution

evidence are such as to give reasonable assurance to the court that the

appellant could not have had the knowledge or the required intention,

the burden cast on him under Section 35 of the Act would stand

discharged even if he has not adduced any other evidence of his own

when he is called upon to enter on his defence.”(Emphasis added)

10

Page 11 14. In the light of the above principles, what is to be examined

in the present case is whether the accused-appellant has been able to

discharge the burden of proof cast upon him under Section 35 of the

NDPS Act. The appellant has raised doubts about the prosecution

case mainly on two aspects viz.; (i) evidence of sole witness Ram

Singh-ASI is not trustworthy and (ii) non-examination of Chander

Singh-SI who prepared the rukka.

15. To assail the prosecution case, it was contended that Ram

Singh-PW1’s testimony cannot be relied upon as PW-1 has stated that

he remained busy in the investigation in the present case for

7-8 hours but the fact that Ram Singh has been associated in the

investigation of another FIR No.235 dated 17.09.1990 relating to

Police Station Sadar Dabwali at 5.30 a.m. in which one Bhoop Singh

was arrested while carrying one kilogram and hundred grams opium,

which according to the appellant, renders the presence of Ram Singh-

ASI in the instant case highly doubtful. The learned Sessions Judge

accepted the above submission of the appellant to hold that evidence

of Ram Singh-ASI does not inspire confidence. As observed by the

High Court, the learned Sessions Judge overlooked that there is no

evidence as to the distance between the places of recovery in both the

cases. As observed by the High Court, it has come on record that in

11

Page 12 both the FIRs the place of occurrence has been stated as “in the area

of Village Kingre, at a distance of 18 K.M. towards the East,

Deh.No.33”. It appears from the above entry in the FIR, that the place

of occurrence was the same for both the FIRs recorded on that night.

The case relating to Bhoop Singh in FIR No.235 resulted in acquittal.

Referring to the acquittal of Bhoop Singh, High Court observed that

the same would warrant an inference that what is incorporated in FIR

No.234 is incorrect and that defence has not been able to make any

dent in the testimony of Ram Singh-ASI to discard his evidence as

untrustworthy. We find no reason to take a different view.

16. Contention at the hands of the learned Senior Counsel for

the appellant is that non-examination of Chander Singh-SI who

prepared rukka and who investigated the case raises serious doubts

about the prosecution case. Material on record would show that

Chander Singh-SI who investigated the case was not examined by the

prosecution in spite of several opportunities. No doubt, it is always

desirable that prosecution has to examine the investigating

officer/police officer who prepared the rukka. Mere non-examination

of investigating officer does not in every case cause prejudice to the

accused or affects the credibility of the prosecution case. Whether or

not any prejudice has been caused to the accused is a question of fact

12

Page 13 to be determined in each case. Since Ram Singh-PW-1 was a part of

the police party and PW-1 has signed in all recovery memos, non-

examination of Chander Singh-SI could not have caused any prejudice

to the accused in this case nor does it affect the credibility of the

prosecution version.

17. In his statement under Section 313 Cr.P.C., no plea has

been taken that the appellant was not in conscious possession of the

contraband. The appellant has only pleaded that he being falsely

implicated and that a false case has been foisted against him in the

police station. In his statement under Section 313 Cr.P.C., the

appellant had not stated anything as to why would the police foist the

false case against the appellant. It is to be noted that huge quantity of

poppy straw was recovered from the possession of the appellant.

Admittedly, the police officials had no previous enmity with the

appellant. It is not possible to accept the contention of the appellant

that he is being falsely implicated as it is highly improbable that such

a huge quantity has been arranged by the police officials in order to

falsely implicate the appellant.

18. In his statement under Section 313 Cr.P.C., the appellant

denied the allegations against him and stated that he has been falsely

implicated and to substantiate his defence, the appellant adduced two

13

Page 14 documents Exs.D1 and D2. Ex.D1 is a certified copy of the FIR

No.235 dated 17.09.1990 under Sections 17 and 18 of the NDPS Act

relating to case against Bhoop Singh and Ex.D2 is a copy of the

judgment acquitting the said Bhoop Singh. Of course, case against

Bhoop Singh originated from FIR No.235 dated 17.09.1990 registered

at 5.30 a.m. ended in acquittal but acquittal of Bhoop Singh in the

said case does not render the prosecution case against the appellant-

Baldev Singh doubtful.

19. From the evidence led by the prosecution, it has been

proved beyond reasonable doubt that the accused being the driver of

the tractor was in conscious possession of the thirty three bags of

poppy husk in the trolley attached to the tractor. Upon appreciation of

evidence, High Court rightly reversed the acquittal and convicted the

appellant under Section 15 of the NDPS Act. The occurrence was in

the year 1990 and the appellant has suffered a protracted proceeding

of about twenty five years. In the facts and circumstances of the case,

the sentence of imprisonment imposed on the appellant is reduced

from twelve years to ten years.

20. The conviction of the appellant under Section 15 of the

NDPS Act is confirmed and the sentence of imprisonment imposed on

the appellant is reduced to ten years and the appeal is partly allowed.

14

Page 15 The appellant is on bail and his bail bonds are cancelled. The

appellant be taken into custody forthwith to serve the remaining part

of the sentence.

.………..…..…………………..J.

(JAGDISH SINGH KHEHAR)

....………..……………………..J.

(R. BANUMATHI)

New Delhi;

November 4, 2015

15