Friday, 13 November 2015

Whether burden of proof is on accused to prove that he was not in conscious possession of Narcotic?

Supreme Court observed that explanation to Sub-section (1) of Section 35 of Narcotic Drugs and Psychotropic Substances Act, 1985 expands the meaning of `culpable mental state` provides that `culpable mental state` includes 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.167 OF 2006
BALDEV SINGH ...Appellant
Versus
STATE OF HARYANA ...Respondent
Dated;November 4, 2015


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.
1Page 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
2Page 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.
3Page 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 SinghPW-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
4Page 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
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

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)
7Page 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

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
9Page 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 crossexamination
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)
10Page 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 SinghASI
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
11Page 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
12Page 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, nonexamination
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
13Page 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 appellantBaldev
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.
14Page 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
Print Page

No comments:

Post a Comment