Holding

The appellant cannot be convicted on the sole testimony of the investigating officer; the benefit of doubt applies and the conviction is set aside.

Summary

Bahadur Singh, a truck driver, and Amreek Singh, a cleaner, were convicted under the Narcotic Drugs and Psychotropic Substances Act for allegedly transporting 3.9 kg of poppy straw. The prosecution’s case rested on the testimony of the investigating officer, who claimed to have seized the contraband, while the sole panch witness present denied that the recovery occurred in his presence. The court noted serious discrepancies in the recovery, seizure, and the entry of the seized material in the Maalkhana register, and observed that the police officer’s testimony was uncorroborated. It held that when the very recovery of contraband is doubtful, the presumption of possession under Section 35 cannot be invoked. Consequently, the appellant was entitled to the benefit of doubt and the conviction was set aside.

Issues considered

Whether a conviction under Sections 8 and 15 of the NDPS Act can be sustained on the sole testimony of an investigating officer when the recovery of contraband is disputed.
Whether Section 35 of the NDPS Act, which creates a presumption of possession, is applicable when the recovery itself is doubtful.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 15, s. 35, s. 8

Subjects

NDPS Actcontraband recoverybenefit of doubtSection 35 presumptionpolice testimonyevidentiary discrepanciescriminal appeal

Judgment

A BAHADUR SINGH
v.
STATE OF MADHYA PRADESH AND ANR.

DECEMBER 4, 2001

B [UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985.

Sections 8, 15 and 35-Recovery and seizure of contraband-Panek
witness denying that contraband recovered and seized in his presence-Convic-
c tion based on sole testin1ony o.f Investigating Officer-,5erious discrepancies in
recovery, seizure and deposit of contraband in Maa/khana-Held, accused
entitled to benefit Qf doubt.

Prosecution alleged that poppy straw weighing 3.900 kgs. was recov·
D ered from the truck driven by appellant. Special Court convicted driver
and cleaner of the truck for offences under Section 8 read with Section 15
of Narcotic Drugs and Psychotropic Substances Act, 1985. In appeal, High
Court acquitted cleaner but upheld the conviction of driver. Hence, this
appeal by truck-driver.

E Appellant contended tha! there was no reliable evidence to establish
recovery and seizure of contraband and that conviction on the sole testi-
mony of the Investigating Officer, PW 3, was unwarranted.

Allowing the appeal, the Court

F HELD : 1. The question of applicability of Section 35 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 will not arise when the
recovery itself is doubtful. The appellant had disputed the recovery of
contraband. There are serious discrepancies in its recovery, seizure and
deposit in the Maalkhana. Prosecution examined only one Panch Witness
who denied that in his presence contraband was recovered from the driver
G and cleaner of the truck. Investigating officer had taken the search of the
truck before the arrival of panch witness. Under the circumstances the
appellant cannot be convicted on the sole testimony of police witness, tbe
Investigating Officer. The prosecution has thus failed to prove its case
beyond all reasonable doubts against the appellant and so he is entitled to
H benefit of doubt. (434-B; 431-F]
430
BAHADUR SINGH v. STATE [SABHARWAL, l.] 431
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 824 A
of 2000.

From the Judgment and Order dated 29.3.2000 of the Madhya Pradesh
High Court in Cr! A. No. 2502 of 1999.

Shiv Sagar Tiwari for the Appellant. B
Mrs. Madhur Dudani, for Prakash Shrivastava and B.S. Banthia for the
Responents.

The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. The appellant, Bahadur Singh and one Amreek C
Singh were convicted by the Special Court constituted under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') having been
found guilty for the offence under Section 8 read with Section 15 of the Act.
Both of them were sentenced to IO years' rigorous imprisonment and a fine
of Rs. I lakh each. The High Court has, however, allowed the appeal of Amreek D
Singh. His conviction and semence has been set aside. The conviction and
sentence of Bahadur Singh having been maintained, he is in appeal before us
on grant of special leave.

Bahadur Singh was a driver and Amreek Singh a cleaner of a truck. The
case of the prosecution is that information had been received that the poppy E
straw is being carried in the said truck. On search of the truck four polythene
bags containing poppy straw weighing 3.900 kgs. was found. After completion
of the formalities, the accused were tried which resulted in the conviction and
sentence as aforesaid.

According to the prosecution there were two independent witnesses in F
whose presence the poppy straw was recovered and seized. The prosecution,
however, examined only one of them, namely, Pawan Kumar Sharma, PW!.
PW!. did not support the prosecution and was declared hostile. He though
adntitted his signatures as a panch witness to the documents but denied that in
his presence 3.900 kgs. of poppy straw was recovered and seized from the G
driver, Bahadur Singh and cleaner, Amreek Singh. The conviction was, how-
ever, based on the sole testimony of Investigatmg Officer, Head Constable
Gontiya, PW3.

Learned counsel for the appellant submits that there is no reliable evi-
dence to establish the recovery and seizure of the contraband and on the facts H
432 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A and circumstances of the case the conviction on the sole testimony of PW3 is
unwarranted. There is substance in the submission.

There are serious material discrepancies in the evidence in respect of
recovery and seizure. PW4, a constable, stated in the cross-examination that
when Pawan Kumar Sharma reached Kabir Chowk where the truck was appre-
B hended PW3 told him that there is poppy straw in the truck and when they
reached there, PW3 had already taken the search of the truck. There are also
serious discrepancies in respect of the deposit of the seized poppy straw in the
Maalkhana. The deposit is shown to have been made under Entry No.68-A
dated 11th October, 1997. The date of the incident is 10th October, 1997. The
c Entry above Entry 68-A, is Entry No.68 dated 15th October, 1997. The Entry
after Entry 68-A, is Entry No.69. That is also dated 15th October, 1997. The
concerned police official who made these entries was not examined by the
prosecution but was examined as a defence witness. His explanation to the
aforesaid entries was that he forgot to make an Entry of the seized material in
the Maalkhana register and made the entry later after '15th day'. The expla-
D nation is far from satisfactory. Assuming he forgot to make the entry, that then
cannot be made by interpolation as aforesaid. The entry could be made at its
appropriate place under the correct date on which it was actually made and
delay in making the entry could be explained. He further deposed that since
no cash was deposited he did not make any Entry for receipt of Rs.27 ,000
E connected with the crime. In respect of this amount, PW3, the Investigating
Officer, in cross-examination stated as under:

"During arrest, 54 currency note of Rs.500 denomination each were
seized from Bahadur Singh, which was Rs.27 ,000 in all and it is true.
It is wrong to say that Rs. 27,000 were never returned to Bahadur
F Singh. Head Moharrir Jagat Ram of police station has got the receipt
of the refund of that money. It is wrong to say that for harassing
accused Bahadur Singh and Amreek Singh, I entered in their truck and
searched the truck unnecessarily and the accused were unnecessarily
arrested. It is wrong to say that Rs.27,,000 were not returned to accused
G persons."

However, on the date when the case was fixed for judgment before the
trial judge, an application was filed by PW3 stating that he had not seized any
amount from accused Bahadur Singh and was confused when he admitted the
seizure of the amount of Rs.27,000. According to the appellant, PW3 had
H seized that amount and not returned. In respect of this controversy, the trial
BAHADURSINGH v. STATE [SABHARWAL, l.] 433
judge said as under: A
"I have very carefully exami11ed Ex. P-15, the arrest memo of accused
Bahadur Singh and also seen Ex.P-15-C, the photocopy of Ex.P-15,
which was later on filed by H.C. Gontiya. Certainly in Ex.P-15-C the
entries regarding the currency notes are not there, in both these docu-
ments a vertical line is there in the space left for the particulars to be B
filled regarding the seizure. This type of line is usually drawn when
there is nothing to be entered. Although, H.C. Gontiya has not proved
that who was the person who wrote the concerning document and
made entries in the diary as R.N. Sharma PW-5 denied that he wrote
the Ex.P-15, still I think that H.C. Gontiya could not be held guilty for c
engulfing 27,000 of the accused. The reasons for this are as follows:

17. First, if one compares the writing in Ex.P-15 carefully, one would
find, that the entries regarding the description of amount and currency
notes are not written by the same person, who wrote and made rest of
the entries in Ex.P-15. Figure (4) of 54 is quite different than in figures D
(4) of 451/97 on the very first column and there is no doubt that these
two figures of (4) are not written by the same persons. Apart from this,
I have also carefully compared the writing of case diary written on
10.10.97. The writing in Ex.P-15 and this appears to be written by
same person. In the case diary of IO. I 0.97, the fact of seizure of 27 ,000
E
rupees is not mentioned which in ordinary course of nature should
have been mentioned. Apart from this, the said amoun~ was seized on
10.10.97, the date on which the accused Bahadur Singh was arrested
but for the first time the allegation was leveled against the 1.0. on
29.09.98 the date on which the accused were examined by the court
under Section 313 of the Cr.P.C. for complete one year the accused F
remained dormant and did not made any hue and cry which in ordinary
course of nature should have been made because the Rs.27,000 is not
a small amount and the person to whom they belonged should have
made some effort to get the amount in supurdnama as has been done
for the truck. So far all these reasons I hold that the entries in the Ex.P- G
15 regarding the amount was made after the challan was completed and
filed."

The appellant cannot be made to suffer on prosecution failure to prove
as to who made the entries m exhibit P-15 regarding the amount and as to when
the same were made. H
434 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A Under the aforesaid circumstances the appellant cannot be convicted on
the sole testimony of police witnesses, PW3. The question of applicability of
Section 35 of the Act will not arise in the present case when the recovery itself
is doubtful. The appellant had disputed the recovery of contraband. There are
serious discrepancies in its recovery, seizure and deposit in the Maalkhana. The
prosecution has thus failed to prove its case beyond all reasonable doubts
B
against the appellant who is accordingly entitled to benefit of doubt.

For the foregoing reasons, we set aside the judgment of the High Court
as well as of the Special Court and allowing the appeal, acquit the appellant.

A.K.T. Appeal allowed.
c