As per the case facts, the appellant was convicted under the NDPS Act after being found with contraband following a secret tip. A co-accused, who was also in the vehicle, ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 871 OF 2021
SANJEET KUMAR SINGH
@ MUNNA KUMAR SINGH …APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1.Challenging his conviction for an offence punishable under
Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the ‘Act’) and the
sentence of rigorous imprisonment for 10 years together with a fine
of Rs.1 lakh imposed upon him by the Special Court and confirmed
by the High Court of Chhattisgarh, Accused No.1 has come up with
the above appeal.
1
2.We have heard Mr. Somnath Padhan, learned counsel for the
appellant and Mr. Sourav Roy, learned Deputy AG for the
respondent State.
3.The case of the prosecution was that on 31.05.2014, the
Station House Officer (SHO for short) of Chakarbhata Police Station
received a secret information that the appellant and his friend
Reena Das, were carrying ganja in the dickey of a car bearing
registration no.CG04HA4850 and were travelling from Raipur to
Pendra Road; that the SHO recorded this information in Rojnamcha
Sanha, prepared Mukhbir Suchana, forwarded the said information
to the higher officer, proceeded to the spot, stopped the car, served
a notice under Section 50 of the Act, conducted a search and found
47.370 Kgs. of ganja kept in three bags in the dickey of the car; that
after weighing the contraband and preparing Panchnama, the SHO
collected samples from each of the three bags, sent them to
Forensic Science Laboratory (‘FSL’ for short) and after receipt of the
Report, filed a chargesheet against the appellant as well as his
friend Reena Das for an offence punishable under Section 20(b) of
the Act.
2
4.The prosecution examined seven witnesses. Two independent
witnesses were examined as court witnesses CWs 1 and 2.
5.By a judgment dated 10.05.2017, the Special Court convicted
the appellant for the offence under Section 20(b)(ii)(C) of the Act,
and imposed a sentence of rigorous imprisonment of 10 years.
However, the coaccused Reena Das was acquitted by the Special
Court.
6.The State did not file any appeal against the acquittal of Reena
Das, who was A2. But the appellant filed an appeal on the file of
the High Court of Chhattisgarh, Bilaspur. The appeal was
dismissed by a judgment dated 01.10.2019. Therefore, A1 who has
suffered concurrent convictions has come up with the above appeal.
7.The Special Court, for coming to the conclusion that the
appellant was guilty of the offence, relied extensively upon the
testimony of Mr. N.L. Dhritlahre, Deputy Superintendent of Police,
who acted both as the informant and as the Investigating Officer
(‘I.O.’ for short) and who was examined as PW7. The Special Court
found that PW7 had followed the procedure prescribed in Sections
43 and 49 of the Act and that his testimony remained unshaken.
3
8.Though PW7 claimed that the search and the seizure was
conducted in the presence of two independent witnesses examined
as CW1 and CW2, these two witnesses claimed ignorance of the
entire operation. Therefore, the Special Court came to the
conclusion that the testimony of PW7 was not corroborated by the
evidence of independent witnesses.
9.However, the Special Court came to the conclusion that the
entries made by PW7 and the documents prepared by him both
before and after the search and seizure, corroborated his oral
testimony and that therefore the guilt of the appellant stood
established beyond reasonable doubt, even without corroboration.
10.But, interestingly, the Special Court acquitted A2 namely
Reena Das on the ground, (i) that though in the Daily Register of
Exhibit P12 and the Memo of Information, the name of A2 was
mentioned, PW7 did not mention her name in his testimony;
(ii) that the notice under Section 50 was not served on A2; and
(iii) that there was no proof beyond doubt to show that the seized
contraband was under the possession and the knowledge of A2.
4
11.As we have stated earlier, the State did not file an appeal
against the acquittal of A2. But the High Court held that the
evidence of PW7 remained unshaken even during cross
examination and that there was no reason to disbelieve his version.
The High Court also held that the Head Constable and the
Constable examined as PWs 3 and 4 corroborated the statement of
PW7 with regard to the compliance of the requirements of Sections
42 and 57 of the Act. Though an argument was raised before the
High Court on behalf of the appellant that the samples sent to FSL
were not part of the seized contraband, it was rejected by the High
Court on the basis of the cogent testimony of PW7. This is how the
High Court confirmed the conviction of the appellant as well as the
sentence imposed upon him.
12.Assailing the concurrent judgments of the Special Court and
the High Court, it was contended by the learned counsel for the
appellant, (i) that the informant and the I.O. happened to be the
same person; (ii) that the independent witnesses namely CW1 and
CW2 did not support the case of the prosecution, thereby leaving
the testimony of PW7 uncorroborated; (iii) that when the appellant
5
and the coaccused were alleged in the chargesheet to be travelling
in the same car from which ganja was seized, the acquittal of one of
them and the conviction of the other, on the basis of the very same
testimony of PW7 cannot be sustained; and (iv) that the principles
laid down in a series of judgments of this Court have not been
followed by the Special Court and the High Court. The learned
counsel for the appellant placed reliance specifically upon the
decisions of this Court in Ajmer Singh vs. State of Haryana
1
and
Mohinder Singh vs. State of Punjab
2
.
13.As regards the testimony of PW7, on which the Special Court
and the High Court placed heavy reliance and complete faith, the
learned counsel for the appellant raised the following contentions:
There are several omissions in his evidence;
He arrested both the accused and also chargesheeted
them, but admitted that there was no search warrant.
He further stated that photograph of the vehicle was not
in the list of Final report and Crime Number was not mentioned in
photograph of car;
He was silent about presence of CWs i.e. independent
witnesses and those independent witnesses pleaded ignorance;
1 (2010) 3 SCC 746
2 (2018) 11 SCC 570
6
Even property seizure memo was not signed by accused
and witnesses and there was no stamping. This is also admitted by
him;
He admitted that he had not recorded the statement of
the actual owner of the vehicle, which is a fundamental flaw in the
investigation;
No notice U/S 50 NDPS Act was sent to Reena Das (A2).
Except in the FIR and Charge Sheet, name of Reena Das was not
mentioned anywhere i.e. consent letter, memo of consent, memo of
searching, memo of seizure/recovery of contraband substance,
memo of identification of materials, memo of physical verification of
weighing machine, memo of weighing of contraband substance,
memo of sample weighing of intoxicated materials etc.;
But he denied in the cross examination, the suggestion
that lady was not seated in the vehicle; and
Time mentioned varied from document to document.
14.The learned counsel for the appellant also raised an issue
about the ownership of the car and highlighted the fact that the
owner namely, Bhumika Patel (PW4) was not even interrogated.
But we do not think the ownership of the car was of any material
significance. Therefore, we are not dealing with the same
elaborately.
7
15.In response to the contentions raised on behalf of the
appellant, it was argued by the learned Deputy AG for the State:
That the NDPS Act is a complete Code in itself;
That once the procedure enumerated in Sections 42, 43,
49 & 50 are scrupulously followed, it was for the accused, from
whose possession the substance is recovered, to explain how he
came into possession;
That as held by this Court in Mukesh Singh vs. State
(Narcotic Branch of Delhi)
3
, it is not always necessary to
corroborate the testimony of police officials, through the testimony
of independent witnesses;
That as held by this Court in Dharampal Singh vs.
State of Punjab
4
, lack of independent witness is not fatal to the
case of the prosecution;
That by the same analogy it was held by this Court in
Rizwan Khan vs. State of Chhattisgarh
5
, that the independent
witnesses turning hostile, cannot be a ground for acquittal under
the NDPS Act;
That the protection under Section 50 of the Act is
available only to the search of the body of a person and not to the
search of a vehicle or place, as held by this Court in State of
Punjab vs. Baljinder Singh and Ors.
6
;
3 (2020) 10 SCC 120
4 (2010) 9 SCC 608
5 (2020) 9 SCC 627
6 (2019) 10 SCC 473
8
That since the recovery was made in this case from the
boot of the car, Section 50 had no application and hence the
acquittal of the coaccused was also of no consequence;
That the question whether the informant can be I.O. is no
longer res integra in view of the decision of this Court in Mukesh
Singh (supra);
That once possession is proved under Section 54, the
accused is presumed to be guilty of the offence, in view of the
presumption under Section 54 of the Act; and
That therefore the concurrent findings of the Courts
below need no interference.
16.We have carefully considered the rival contentions. We have
also perused the records of the Special Court including the
testimony of witnesses.
17.At the outset we would take note of some propositions of law
on which there can be no controversy. They are, (i) that as per the
decision of the Constitution Bench of this Court in Mukesh Singh
(supra), the fact that the informant also happened to be the
investigator, may not by itself vitiate the investigation as unfair or
biased; (ii) that it is not always necessary that the evidence of the
police witnesses have to be corroborated by independent witnesses,
9
as held in Dharampal Singh and Mukesh Singh (supra); (iii) that
the independent witnesses turning hostile need not necessarily
result in the acquittal of the accused, when the mandatory
procedure is followed and the other police witnesses speak in one
voice as held in Rizwan Khan (supra); and (iv) that once it is
established that the contraband was recovered from the accused’s
possession, a presumption arises under Section 54.
18.But if the Court has (i) to completely disregard the lack of
corroboration of the testimony of police witnesses by independent
witnesses; and (ii) to turn a Nelson’s eye to the independent
witnesses turning hostile, then the story of the prosecution should
be very convincing and the testimony of the official witnesses
notably trustworthy. If independent witnesses come up with a story
which creates a gaping hole in the prosecution theory, about the
very search and seizure, then the case of the prosecution should
collapse like a pack of cards. It is no doubt true that corroboration
by independent witnesses is not always necessary. But once the
prosecution comes up with a story that the search and seizure was
conducted in the presence of independent witnesses and they also
10
choose to examine them before Court, then the Court has to see
whether the version of the independent witnesses who turned
hostile is unbelievable and whether there is a possibility that they
have become turncoats.
19.Let us see in the case on hand what PW7 stated about the
manner in which the witnesses were roped in. The relevant portion
of the testimony (Chief Examination) of PW7, where a reference is
made to independent witnesses, is extracted as follows:
“(5)I got the information on 31.05.2014 at 16.50 Hrs. from
informant that the one silver colour Hyundai Verna
Car having registration no.C.G.04HA4850 is silver,
in which, Sanjeet Kumar Singh @ Munna Singh
resident of Kabir Nagar, Raipur and his lady friend
namely Reena Das @ Manali Das resident of Kabir
Nagar, Raipur have left towards Pendra road from
Raipur carrying huge quantity of cannabis in the truck
(Dikki) of Car for the purpose of sale, who would go via
Pandidiha bypass Road. I lodge the above report at
the serial no.1283 of Station Diary register maintained
at Police Station. Today, I brought the Daily Register
with me. The Serial No.1283 entered in the Daily
Register is Exhibit P12 and its certified copy is
Exhibit P12 “C: I prepared the memo (Panchnama) of
the information of informant in the presences of
witnesses Virender Kumar Sahu and Baldev Singh
Rajput. The memo (Panchnama) of the information of
informant is Exhibit P13 and I had my signatures on
A to A parts. I served notice for the purpose of
summoning to the witnesses. The notice given to
the witness Sunil Maldhani which is Exhibit C14,
where my signatures on B to B parts and the
notice sent to the witness Firturam Banware for
11
appearing/presenting at the time of proceedings is
Exhibit C1, on which, my signatures is on B to B
parts.
xxx xxx xxx
(7)Thereafter, I made entry at serial no.1286 in the daily
register maintained at Police Station about the
departure time i.e.17.10 hrs. along with constable
nos.444, 672 and woman constable no.981 for Bypass
Road Tiwaripara for the purpose of barricading by
Government vehicle. I also took the documents and
seal with me. The incharge namely A.S.I., Sharma of
Police Assistant Center, Sakri was informed and the
witnesses namely Katti Sunil Kalwani and Firturam
Banware were also taken for the purpose of
proceedings and in this connection, I made entry at
the serial no.1286 in daily register, which is Exhibit P
17 and the certified copy of the same is Exhibit P17
“C”.
(8)I prepared the memo (Panchnama) under Section 50
N.D.P.S Act in the presences of witnesses namely
Sunil Maldhani and Firturam Banjare, which is
Exhibit C2 and on which, my signatures at C to C
parts.
(9)Contraband substance in three plastic bags was
recovered from the dickey of Car having registration
no.C.G. – 04 H.A – 4850 in possession of Sanjeet
Kumar Singh, seizure is Exh C 5 where my signature
is at D to D Part. When I see the bags kept in dickey
of the car by opening the stitches in presence of Sunil
Maldhani Firturam Banwane.”
20.In his crossexamination, PW7 stated as follows:
“(22) Both the witnesses belong to Chakarbhata. I know
previously to both witnesses. I have sent the notices to
both witnesses in their names. It is correct to say that
I cannot recall today that through whom, the above
notice was sent. It is also correct to say that I had sent
the above notice at 17.10 Hrs. I cannot recall that at
what time, the above witnesses in Police Station.
12
xxx xxx xxx
(24)The houses of witnesses namely Sunil Maldhani and
Firturam is situated at the distance about one
Kilometer away from Police Station. It is correct to say
that it takes the time to search for and reaching to
witnesses. The witness was silent, when the question
asked that at what time the independent witnesses
were presented. It is incorrect to say that on the
memo of the information received from the informant, I
had took the signatures of respective signatures of
witnesses after returning to Police Station from the
place of the occurrence of incident.
xxx xxx xxx
(29)I get the contraband substances identified by the
witnesses. It is correct to say that I have not
mentioned that contraband substances identified by
the witnesses in memo of identification Exhibit C7.
xxx xxx xxx
(38)It is also incorrect to say that the witnesses used to
frequently visit at Police Station. Today, I cannot recall
that on the date of occurrence of incident, the
witnesses namely Sunil Maldhani and Firtu Banware
had visited to the Police Station in relation of their own
some dispute. It is also incorrect to say that I get the
signatures on the documents of above both witnesses
at Police Station.”
21.Having seen what PW7 said about the presence of
independent witnesses, let us now see what these independent
witnesses had to say. The relevant portion of the testimony of Shri
Firuturam Banware examined as CW1 reads as follows:
“1.I know Sunil Malghani. I and Sunil Malghani both
were Counsellor of Bodri Panchayat. I do not know
accused persons present herein the Court. I am seeing
them today for the first time.
13
2. I was not called by Police of Police station
Chakarbhata in relation to Mukhbir information of
Ganja in the year 2014 or at another time, I was never
called at Policestation, I never went to Pendidih by
pass road with Police. Police never stopped any car in
my presence, I had not seen that accused persons
present here in the court were sitting in any car, Police
never seized any Ganja from any car in my presence.
Police did not do any weighing proceedings of Ganja or
proceedings of taking sample in my presence.
3. In the year 2014 I went to the Policestation
Chakarbhata in relation to the dispute between some
Sindhis and at that time Police took my signature on
some documents. I did not read in which relation
those documents were and I was also not told about
the contents of documents because at that time no
documentation was done. Exhibit C.1, C.2, C.3, C.4,
C.5, C.6, C.7, C.8, C.9, C.10 which is in three pages,
Part A to A of C.11, C.12, C.13 bears my signature.
Part B to B of Ex.P/9 bears my signature. Police did
not took my statement.
//Crossexamination by Shri Kundan Singh, Public
Prosecutor for Prosecution//
4. I had studied up to Eighth Class. It is correct to say
that as I am Counsellor it is my duty to help Police.
Earlier I was Counsellor of Nagar Panchayat Bodri two
times for five years. It is correct to say that being
Counsellor I have to visit Police whenever I am called.
It is correct to say that during the investigation of
crime Public Representatives are called, witness
himself states that once he was called. It is incorrect to
say that on 31.05.2014 at about 17.00 hours I was
called at the Policestation, witness himself states that
because there was dispute between Sindhis he went to
the Policestation. It is correct to say that at that day
Sunil Maghlani also went there with me. It is correct to
say that upon saying of someone document must not
be signed without reading it…
xxx xxx xxx
14
7. It is incorrect to say that Weighment Panchnama was
done in my presence. It is incorrect to say that Ganja
recovered from accused was weighed in my presence
and in the presence of Sunil Malghani and at that time
20 kilo 370 grams in one bag, 20kilogram in second
bag and 07 kilogram in third bag was found.”
22.The relevant portion of the evidence of Shri Sunil Kumar
Malghani, examined as CW2 reads as follows:
“1. I do not know accused persons present here in the
Court. In the Year 2014 I was Counsellor of Ward
number 7 of Bodri Nagar Panchayat. Two and half year
ago I and Firturam Banware went to Policestation
Chakarbhata. We went there for compromise for the
dispute between our people. Police took our signature
on 45 documents. No proceedings were done by Police
in my presence. Police did not caught any articles from
the accused persons in my presence. Police did not
gave me any notice.
2. Part A to A of notice under Section 160 of the Cr.P.C.
vide Ex.P/14 bears my signature. Part B to B of C.2,
C.3, C.4, C.5, C.6, C.7, C.8, C.9, C.10, C.11, C.12,
C.13 bears my signature.
//Crossexamination by Shri Kundan Singh, Public
Prosecutor for Prosecution//
3. It is correct to say that I and Firturam Banware went
to Policestation Chakarbhata in the evening at 5.00
hours of 31.05.2014. It is incorrect to say that notice
was given to me by Policestation Chakarbhata to be
present for the investigation of Ganja case. It is
incorrect to that with Police I and Firturam Banware
went to Pendidih by pass road.
4. It is incorrect to say that Car number C.G.04 H.A.
4850 which was in possession of accused Sanjeet
Kumar was stopped and searched and at that time
form the back side dickey of car psychotropic Ganja
was found inside three white color plastic bags and it's
Panchnama was done in my presence.”
15
23.CWs 1 and 2 were crossexamined by the Additional Public
Prosecutor. A suggestion was put to both these witnesses that the
family of the accused persons met them and that they were
influenced. In this regard CW1 denied the suggestion of the Public
Prosecutor in the following words:
“10.It is incorrect to say that family of accused
persons met me and because they gave me offer and in
that greed I am giving false statement. Witness
himself states that he does not know family of accused
persons. It is incorrect to say that today family of
accused persons came in the Court and met me.”
24.Similarly, CW2 denied the suggestion of the Public Prosecutor
that he came under the influence of the family members of the
accused. The relevant portion reads as follows:
“4.It is incorrect to say that family of accused
persons met me. It is also incorrect to say that today I
am giving false statement because of influence of
parents of accused persons. It is true to say that
before signing the document one must read it. It is
incorrect to say that proceedings took place in my
presence and for this reason I signed on documents.
//Crossexamination by Shri Kundan Singh, Public
Prosecutor for Prosecution//
5. It is correct to say that when I signed on
documents at that time nothing was written on
documents. It is correct to say that my signature was
taken on blank documents. It is correct to say that
the documents on which my signature was taken were
not read over to me.”
16
25.The independent witnesses who turned hostile, not only
denied having witnessed anything, but also came up with a
plausible explanation as to how their signatures found place in the
documents mentioned by PW7. According to both the independent
witnesses they went to the police station in connection with some
other dispute relating to the members of the Sindhi community.
These 2 witnesses claimed to be elected counsellors of the local
Panchayat and this claim was not challenged by the Additional
Public Prosecutor in cross examination. Therefore, the case on hand
is not a routine, runofthemill matter where independent
witnesses are won over and they had no explanation to offer about
their signatures in the Panchanama.
26.The statement of these two independent witnesses assumes
significance in the light of certain other facts also. They are:
According to PW7, he received information from one
Mukhbir at 16:50 hrs. on 31.05.2014;
PW7 claims that upon receipt of information, he
prepared Exhibit P5 and completed the other formalities.
Thereafter PW7 sent notices to the independent witnesses at
17:10 hrs.;
17
PW7 further claims that he departed to the place of
incident at 17:10 hrs, from the Police Station and that the
distance between the place of incident and the Police Station is
approximately 78 Kms.;
PW7 stated that the houses of the independent
witnesses Sunil Kumar Malghani and Firuturam Banware
were located at a distance of approximately 1 Km from the
Police Station;
Interestingly, the Learned Special Judge records in
Paragraph 24 of the deposition of PW7 that when asked about
the time of arrival of the independent witnesses at the Police
Station, the witness (PW7) remained silent;
In Paragraph 25 of the testimony of PW7 (cross
examination) it is recorded that PW7 reached the place of
incident in 57 minutes approximately. This is despite the fact
that even according to PW7, the distance between the Police
Station and the place of incident was approximately 78 Kms.;
and
PW7 further claimed that his team waited at the place of
incident for 40 minutes, after which the accused reached the
place of incident.
27.Therefore, if the story advanced by PW7 is to be believed,
(i) he received the information at about 16:50 hrs.; (ii) he completed
the formalities and sent notices to the independent witnesses at
18
17:10 hrs.; (iii) he left the Police Station at 17:10 hrs., and reached
the place of incident in 57 minutes; and (iv) his team waited at the
place of incident for 40 minutes for the accused to arrive.
28.But in the above timeline, PW7 is completely silent about the
time when the witnesses reached the Police Station or the place of
incident.
29.Exhibit C1 is the notice purportedly served on the
independent witness Firuturam Banware. This notice directs the
said witness to appear at 17:10 hrs. at the place indicated therein
namely, “Saida Tiwari Para Bypass Main Road”. Even according to
PW7 this notice to the witness was sent only at 17:10 hrs., to be
served at the residence of the witness located 1 Km. away.
Therefore, there was no way that PW7 could have expected the
witness to be available at the place of incident at 17:10 hrs.
30.Exhibit C2 is the notice served on the appellant herein (A1)
under Section 50 of the Act. The time shown therein is 18:00 hrs.
This notice requires the appellant to indicate whether he would like
to be searched in the presence of Magistrate or Gazetted Officer. It
is also stated in the notice that the contents thereof were read over
19
in the presence of witnesses. Exhibit C3 is the consent Panchnama
of the appellant agreeing to be searched by the police officer. This
Panchnama contains the names of Sunil Malghani and Firuturam
Banware (CWs 1 and 2). Even the search Panchnama of the accused
marked as Exhibit C4 refers to the presence of CWs 1 and 2 at the
time of search.
31.Therefore, it is clear that the I.O. examined as PW7 claims to
have done everything only in the presence of independent
witnesses. But those independent witnesses not merely denied their
presence and participation but also came up with an explanation as
to how their signatures found a place in those documents.
32.In such circumstances, a serious doubt is cast on the very
search and seizure allegedly made by PW7. But unfortunately,
both the Special Court and the High Court went by the law in
theory, without applying the same to the facts of the case.
33.Right from the beginning, the coaccused Reena Das (A2) was
implicated at every stage. Admittedly, the information received by
PW7 at 16:50 hrs. on 31.05.2014 contained a reference to the
appellant as well as the coaccused Reena Das. But for some
20
strange reason, PW7 chose to serve a notice under Section 50 of
the Act only on the appellant and not on the coaccused. PW7 also
omitted deliberately or otherwise, to record, (i) the consent
Panchnama of coaccused; (ii) the search Panchnama of the co
accused; and (iii) the recovery Panchnama in relation to the co
accused. This led to the Special Court acquitting the coaccused. It
is quite strange that, (i) the information received by PW7, (ii) the
FIR; and (iii) the chargesheet implicated the coaccused, but the
prosecution accepted the finding of the Special Court that there
could have been no recovery from the coaccused despite the fact
that she was also travelling in the same car.
33A. It is true that Section 54 of the Act raises a presumption
and the burden shifts on the accused to explain as to how he came
into possession of the contraband. But to raise the presumption
under Section 54 of the Act, it must first be established that a
recovery was made from the accused. The moment a doubt is cast
upon the most fundamental aspect, namely the search and seizure,
the appellant, in our considered opinion will also be entitled to the
same benefit as given by the Special Court to the coaccused.
21
34.In view of the above, we are of the considered view that the
appellant is also entitled to the benefit of doubt. Therefore, the
appeal is allowed. The judgments of the Special Court as well as the
High Court in so far as the same relates to the conviction of the
appellant, are set aside. The appellant shall be released forthwith,
unless he is under custody in connection with some other case. No
costs.
......................................J.
(Indira Banerjee)
.......................................J.
(V. Ramasubramanian)
New Delhi
August 30, 2022
22
Legal Notes
Add a Note....