Holding

The appellant is entitled to the benefit of doubt and the conviction under Section 8 of the NDPS Act is set aside.

Summary

The appellant, Ritesh Chakravarti, was convicted under Section 8 of the NDPS Act for allegedly possessing 1,300 kg of opium seized during a raid based on a secret informer’s tip. The raid was led by a team that included Inspectors Sabiha Khatun and S.K. Bajpai, but only Sub‑Inspector Girwar Puri was examined, and his testimony was the sole basis of the prosecution. The two senior inspectors and two civilian witnesses were not examined, and the civilian witnesses were declared hostile, raising serious doubts about the reliability of the evidence. The Court found Sub‑Inspector Puri’s evidence inconsistent and noted that the informer’s statement, recorded by Inspector Khatun, was not corroborated because the maker of the document was not examined. The Court held that the prosecution failed to prove the case beyond reasonable doubt and that the non‑examination of material witnesses warranted an adverse inference. Consequently, the appellant was entitled to the benefit of doubt and the conviction was set aside.

Issues considered

The conviction can be sustained when key investigating officers were not examined and their testimony is absent.
Whether the recovery of contraband under the NDPS Act requires the presence of an independent or gazetted officer as mandated by Sections 42 and 50.
Whether hostility and inconsistency of witnesses justify drawing an adverse inference and granting benefit of doubt.
Whether the prosecution has discharged its burden of proving the offence beyond reasonable doubt.
Applicability of Sections 103 and 114 of the Indian Evidence Act in drawing adverse inferences from non‑produced evidence.

Legislation cited

Indian Evidence Act, 1872s. 103, s. 114
Narcotic Drugs and Psychotropic Substances Act, 1985s. 42, s. 50, s. 57, s. 8

Subjects

NDPS ActSection 8Section 42Section 50Benefit of doubtNon‑examination of witnessesIndependent witnessSeizure of contrabandBurden of proofIndian Evidence Act

Judgment

A RITESH CHAKARVARTI
v.
ST ATE OF MAD HY A PRADESH

SEPTEMBER 29, 2006

B (S.B. SINHA AND DAL VEER BHANDARI, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 8,
42 & 50-Recovery of opium on receipt of secret information by Inspector-
Raiding team included said Inspector besides another Inspector and a Sub-
C Inspector-The Sub-Inspector apprehended the accused and conducted
search-Witnesses to the search turned hostile-Both Inspectors not
examined-Entire prosecution case resting on testimony of the Sub-
Inspector-Conviction by Courts be/ow-Sustainability of-Held, not
sustainable-Appel/ant was gravely prejudiced by non-examination of the
O two Inspectors-Evidence of the Sub-Inspector inconsistent and full of
contradictions in material particulars-Further material witnesses not
examined-Appellant entitled to benefit of doubt as prosecution case not
proved beyond all reasonable doubt.

Inspector 'S' in the Central Bureau of Narcotics received secret
E information and recorded the same as Ex P/16. Subsequently a raiding team
was constituted which included Inspectors 'B' & 'S' and Sub-Inspector PWS.
PWS apprehended Appellant-accused and conducted search on which opium
weighing 1,300 Kgs was allegedly recovered. Inspector 'S' was not examined.
Inspector 'B' too was not examined. Both PWl, an autorickshaw driver and
PW2, owner of Pan shop in front of the Narcotics Bureau, who were witnesses
F to the search, were declared hostile. The entire prosecution case rested on
the testimony of PWS. Special Judge convicted Appellant under S.8 of
Narcotic Drugs and Psychotropic Substances Act, 1985. High Court affirmed
the conviction. Hence the present appeal.

G Allowing the appeal, the Court

HELD: I. Appellant is entitled to benefit of doubt. (784-Hl

2. The genesis of the occurrence was obtaining of secret information
from the informer. Concededly the informer gave full particulars thereof only
H 772
RITESHCHAKARVARTI \'. STATEOFMADHYA PRADESH 773
to Inspector 'S'. She was, therefore, the only competent witness to prove the A
contents of Ex.P/16. A document as, is well known, does not prove itself. The
contents are required to be proved by the maker thereof. Inspector 'S' alone
could have proved the correctness or otherwise of the contents of the said
document. It was all the more necessary as PW-5 conceded that all
conversations between Inspector 'S' and the informer did not take place in B
his presence. Why Inspector 'B' and Inspectors attached to the Bureau had
not been examined has not been explained. Appellant has been gravely
prejudiced by non-examination oflnspectors 'S' and 'B'. (780-D-E; 781-E)

3.1. PW-5 disclosed that the investigation team consisted of Inspector
'B', Inspector PW-6, Inspector 'S', himself, a few constables and a driver of C
Government vehicle. They waited at the bus stop for about an hour, although
the same was just in front of their office. The identity of Appellant had not
been disclosed till then. Although a large number of persons might have
passed through the road, Appellant alone was suspected and apprehended. How
his identity came to be known is a mystery. (777-EJ
D
3.2. Strangely enough, it is PW-5 himself who had spotted the accused
first. Apart from spotting the accused, he searched him, recovered the
contraband and interrogated him. He also carried out the sealing operations.
Why other officers and constable being present, all work was done only by
him is difficult to perceive. Why everything was left to be done by PW-5 alone
is a mystery. (779-E, F; 780-DJ E
4. It may be true that PW-5 in his evidence proved Ex.P/13 but then he
has contradicted himself in material particulars. Whereas at one place he
said that the informer made his statements in his presence; but at another
place he stated that he was made only a witness to the document. If he was
present throughout, there is no reason as to why the entire statement was F
not made by the informer in his presence. Even as regards the weight of the
contraband and the nature of the bag in which the same was to be carried
stood contradicted. His evidence, thus, was inconsistent. He, therefore, is not
a reliable witness. (781-G, H; 782-AI

5.1. In a case under the NDPS Act, recovery of contraband in presence
G
of the independent person assumes importance. In a large number of cases,
this Court as also various High Courts have emphasized the need of conducting
a search in presence of independent persons; (780-F; 783-G I

5.2. Although the effect of illegal search may not have any direct impact H
774 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A on the prosecution case but the same will have a bearing on the appreciation
of evidence of the official witnesses and other materials depending on the farts
and circumstances of each case. 1783-FI

5.3. The seizure witnesses, viz., PWs I and 2 cannot be said to be
independent in that way. PW-2 was having a Pan Shop in front of the Bureau.
B Despite the fact that he was to carry on his business in front of the Bureau,
he did not support the prosecution case. Why he was chosen to be a witness
has not been disclosed. PW-I was an autorickshaw driver. A constable on
duty ordinarily would not know him. Why PW-5 had sent for PWs 1 and 2 as
search witnesses and that too half an hour before leaving the office has not
C been explained. (780-F, GI
5.4. Ifit was a busy place, the officers would expectedly ask those to be
witnesses to the seizure who were present at the time in the place of
occurrence. But, not only no such attempt was made, even nobody else who
had witnessed the occurrence was made a witness. Even their names and
D addresses had not been taken. An adverse inference, therefore, could be drawn
for non-examination of material witnesses. (780-H; 781-A, DI

Jagdish v. State of M.P., 120031 9 SCC 159; Bhola Ram Kushwaha v.
State of M.P., 1200111 SCC 35; Gopal v. State of M.P., 1200219 SCC 595;
State of Punjab v. Balbir Singh, 1199413 SCC 299; Jadunandan Roy v. The
E State of West Bengal, 120001 CWN 373 and Harun Rashid v. State of West
Bengal and Anr., (2005) 2 Cal LT 262, referred to.

6. Moreover, if the seizure witnesses are to be believed, their signatures
had been obtained on blank papers. In that view of the matter, seizure of the
contraband becomes doubtful 1781-EI
F
7. A doubt arises as to whether all the documents were signed at the
spot without the same being kept on a table as it is accepted that all the exhibits
including the signatures of the accused were in 'thick ink'. Signatures of
the accused on the material exhibits were also obtained in 'thick ink' which
G does not appear to be probable. 1779-G-H)
8. PW-6 although was a part of the raiding team, in his deposition he
did not utter a single word thereabout. Why he did not corroborate the
statements of PW-5 is again difficult to understand. (780-AI

9. The prosecution was required to prove its case beyond all reasonable
H
RITESHCHAKARVARTI v. STATE OF MADHYA PRADESH[SINHA,J.] 775
doubt. If the prosecution has failed to prove its case, it cannot fill up the lacuna A
by contending that Appellant has not proved its defence. In a case of this
nature, the Court will move cautiously in view of the grave nature of the
offence. (782-F; 784-G l

Mousam Singha Roy and Ors. v. State of West Bengal, !2003) 12 SCC
377; Sharad Birdhichand Sarda v. State of Maharashtra, (198414 SCC 116 B
and Kashmira Singh v. State of M.P., AIR (1952) SC 159, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appellate Jurisdiction
No. !01612006.

From the Final Judgment and Order dated 24.1.2006 of the High Court C
of Madhya Pradesh, Indore Bench, Indore in Criminal Appeal No. 484/2001.

Mrinal Kanti Mandal and Salish Vig for the Appellant.

Vibha Datta Makhija for the Respondent.
D
The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

This appeal is directed against a judgment and order dated 24.1.2006
passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal E
No. 484 of 2001 affirming the judgment of conviction and sentence dated
3.4.2001 passed by the Special Judge, Indore in Special Case No. 44 of2000
under Section 8 of the Narcotics Drugs and Psychotropic Substances Act,
I985 (for short "the NDPS Act").

One Sabiha Khatun, an Inspector in Central Bureau of Narcotics (Bureau) F
received an infonnation from an infonner on 2.8.2000 that a person would
carry around 15 kg. of opium from Indore to Mhow. The infonner allegedly
disclosed that the person carrying the contraband would be boarding a bus
for Mhow at about 4.00 p.m. at Shivaji Vatika. The infonnation was recorded
in writing. S.K. Bajpai, Inspector and PW-5 Girwar Puri were witnesses thereto. G
Shivaji Vatika is almost on the other side of the Bureau. There was a pan shop
just in front of the Bureau of which Girish (PW-2) was the owner. A raiding
team was constituted which included Shri S.K. Bajpai, Inspector (who was
then incharge of the office of the Superintendent of Police of the Bureau).
Girwar Puri (PW-5) was also member of the said team. Appellant was allegedly
H
776 SUPREME COURT REPOR lS {20061 SUPP. 6 S.C.R.

A seen proceeding to catch a bus for Mhow. He was seen having a black rexene
bag in his hand. Girwar Puri, Sub-Inspector of the Bureau apprehended him.
He was interrogated. He disclosed his name. He allegedly was given an option
of search by a magistrate or a gazetted officer in terms of Section 50 of the
NDPS Act or by the said PW-5. The search was conducted and opium
B weighing 1.300 kgs. was recovered. A currency note of Rs. 100 was also
found on his person. A report was prepared purported to be in terms of
Section 57 of the NDPS Act and was placed before the superior officer who
was none other than the said Shri Bajpai. One Murali Dhamkani (PW-6) was
appointed as an investigating officer. He was also a party to the raid.

C Although information was received by Sabiha Khatun, she for reasons
known only to the prosecution, was not examined. Inspector Shri S.K. Bajpai
was also not examined. Both Premchand (PW-I) an autorickshaw driver and
Girish (PW-2) owner of Pan shop, who were witnesses to the search, were
declared hostile. The entire prosecution case rested on the testimony of
Girwar Puri, Sub-Inspector.
D
The informer in his statement named Appellant stating:

"On 2.8.2000 at about 1300 hrs. during day time, the infonnation from
Mukhbir has been received that Ritesh Chakravorty, RIO 43, Tilak
Nagar Extension, Indore will go to Mahu from Indore by bus. He will
E come at the Bus Stand near Shivaji Vatika holding about 1.500 kgs.
Opium in a leather bag at about 1600 hrs. during day time. Therefore,
you may initiate appropriate proceeding and to arrest the accused."

Although names of Shn S.K. Bajpai, acting as lncharge of the Bureau
and Girwar Puri were shown as departmental witnesses thereto, the following
F endorsement was made:

"The aforesaid officers have been acknowledged with the aforesaid
information."

What was probably meant was that they were apprised of the report of
G the said information by Ms. Sabiha Khatun.

PW- I Premchand in his deposition contended that his signatures had
been obtained on blank papers. He was an autorickshaw driver. According to
him, the search was not carried out in his presence. In answer to the questions
put to him in cross-examination by the prosecution, it was stated:
H
RITESHCHAKARVARTI 1•. STATEOFMADHYA PRADESH[SINHA,J.] 777
"7. It is right to say that officers of Narcotic Department had intervened A
me at Shivaji Vatika A.B. Road. At this place no person namely Girish
was intervened before me. It is wrong to say that officers of Narcotic
Department told me that person namely Ritesh will come with opium
who is to be caught."

8. I had not seen accused present in court at 5 o'clock with a bag in B
his hand at Shivaji Vatika. I had not seen on spot the accused present
in court, before me accused was not interrogated."

The name of Appellant was, therefore, not disclosed to the said witness.

It is accepted that the office of Bureau was situated at Shivaji Vatika. C
PW-2 Girish was the owner of the Pan Shop situated in front of CGO
Complex which houses the Narcotics Department. According to him also, the
departmental officials obtained his signatures on 3-4 blank papers. He also
denied that any search was conducted or any seizure was made in his
presence. D
PW-5 is Girwar Puri. He disclosed that the investigation team is consisted
of Inspector Bajpai, Inspector Murli Dhamkani (PW-6), Inspector Sabiha
Khatun, himself, a few constables and a driver of government vehicle. They
waited at the bus stop for about an hour, although the same was just in front
of their office. The identity of Appellant had not been disclosed still then. E
Although a large number of persons might have passed through the road,
Appellant alone was suspected and apprehended. How his identity came to
be known is a mystery. A weighing scale was with the raiding party. A
chemical kit was also being carried by them. Allegedly, statement of the
accused was also recorded. A first information report was submitted to the F
Superintendent who was none other than the said Shri Bajpai, who indisputably
was a part of the raiding team. It has not been disputed that the information
from the informer was received by Ms. Sabiha Khatun. It was at about I
O'clock in the noon. It is curious that PW~5 stated that he was also present
at the time when the informer was making his statement before Ms. Sabiha
Khatun although, as indicated hereinbefore, the information recorded by the G
said Sabiha Khatun was said to have been made known to the witnesses.
According to PW-5, he was the only person present with Ms. Sabiha Khan
but, if that be so, how Shri S.K. Bajpai also became a witness to the said
document has not been explained. The informer was said to be present in the
police station for 5 to 10 minutes only. PW-5 did not meet him thereafter. The H
778 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A description of accused does not appear to have been disclosed. He did have
any talks with him in regard to the prize amount. He accepted that the office
of the Bureau in CGO Comljllex is near Shivaji Vatika. Other offices are also
there. There must hav~ ~µe~ he1<eral persons passing through the road. Why
they had chosen the owner of the Pan Shop and an autorickshaw driver as
witnesses has not been explained. Why nobody from the public was called
B to be witness to the occurrence has also not been disclosed. PW-5 although
stated that the weight of the opium being one and a half kg. as also the nature
of the bag in which opium was kept (a leather bag) had been disclosed b)'
the informer, he later on said that he had not told about the bag and nor had
he disclosed that in which 'substance the opium was kept'. Whether the bag
C was a leather bag was also not remembered by the said witness. Interestingly,
he stated:

"36. Sabiha madam had not asked informer from where he had got so
many information. Himself told that informer was of Madam, therefore,
later on he met with madam, he had no information regarding it. I have
D not asked the infonner where he got known all these facts.

37. Ex. P/16 is that information which was given by informer to Madam
Sabiha.

38. In Ex. P/16 information of informer, the fact of there would be a
E leather bag in which opium is concealed was not told before me, if it
is told separately, I have no information regarding it. Neither B to B
part "I may be given my prize" this fact was not told before me to
Madam Sabiha."

He, however, at a later part of his cross-examination contradicted himself
F stating:

"40. Before me informer has told the weight of opium to be one to one
and half kg. Before me it was not told that opium was about one and
half kg. In Ex P/16 in C to C part about one and half kg opium is
written but before me he told about opium to be between one to one
G and half kg. How it is written one and half kg. in C to C part, I cannot
tell."

Whether the signature of the informer on the statement recorded by Ms.
Sabiha Khatun was taken or not also was not known to him.

H According to him, the informer before him did not say that the opium
RITESHCHAKARVART11.,STATEOFMADHYAPRADESH[SINHA,J.] 779
would be concealed in a leather bag. As regards the identity of the superior A
officer before whom the information was disclosed by Ms. Sabiha Khatun
also is inconsistent, as it was stated:

"43. Before proceeding to spot from office, we have given infonnation
of our departure to Narcotic Superintendent Shri Ratanlal Goudia, then
said that Madam might have given. Whether it was given in writing B
or orally, I have no infonnation about it. I, on my own have not given
infonnation to my superior officer. Before proceeding Madame Sabiha
had got acquainted with the infonner's infonnation to superior officer
Shri Godia. Then said, at that time senior Inspector Shri S.K. Bajpai
was in charge Superintendent and he was got acquainted with C
infonner' s infonnation. This statement is made by witness after perusing
Ex. P/16. I am stating this fact because on Ex. P/16 there are signatures
•, of Bajpai Sahab."

He, thus, had to refresh his memory as who was the incharge of the
office of the Superintendent from the document only which was exhibited as D
Ex. P/16.

.He accepted that PWs 1 and 2 were called in office before proceeding
to spot, by sending constable half an hour before they started. Admittedly,
they had waited for half an hour to one and half hour at Shivaji Vatika and,
thus, they must have called the witnesses at about 2.30 p.m. and left their E
office at about 3 O'clock. Strangely enough, it is PW-5 himself who had
spotted the accused first. The accused was said to be only at a distance of
I0 feet from where they had been standing.

Apart from spotting the accused, he searched him, recovered the
contraband, interrogated him. He also carried out the sealing operations. F
Although a large number of people gathered, he did not enquire their names
or asked them to be witnesses to the occurrence.

Why other officers and constables being present, all works were done
only by him is difficult to perceive.
G
A doubt arises as to whether all the documents were signed at the spot
without the same being kept on a table as it is accepted that all the exhibits
including the signatures of the accused were in 'thick ink'. Signatures of the
accused on the material exhibits were also obtained in 'thick ink' which does
not appear to be probable.
H
780 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A Murli Dhamkani (PW-6) although was a part of the raiding team, in his
deposition he did not utter a single word thereabout. Why he did not
corroborate the statements of PW-5 is again difficult to understand. He was
appointed an investigating officer but he neither had the occasion to examine
any witnesses including the official witnesses nor did he perform any other
B job.
--
An offence committed under the NDPS Act is a grave one. Procedural
safeguards to the accused provided under a statute require strict compliance.
By reason of the provisions of the NDPS Act, Parliament has reposed
confidence on the gazetted officers. Shri Bajpai being a Superintendent of
C Bureau was a gazetted officer. If he was present, it was expected that he would
disclose his identity and would invoke his power under proviso to Section
42 of the NDPS Act.

Why everything was left to be done by PW-5 alone is a mystery. Why
Shri Bajpai and Inspectors attached to the Bureau had not been examined has
D not been explained. The genesis of the occurrence was obtaining of secret
ipformation from the informer. Concededly the informer gave full particulars
thereof only to Ms. Sabiha Khatun. She was, therefore, the only competent
witness to prove the contents of Ex. P/16. A document as, is well known, does
not prove itself. The contents are required to be proved by the maker thereof.
Ms. Sabiha Khatun alone could have proved the correctness or otherwise of
E the contents of the said document. It was all the more necessary as PW-5
conceded that all conversations between Ms. Sabiha Khatun and the informer
did not take place in his presence.
. .
In a case under the NDPS Act, recovery of contraband in presence of
F the independent person assumes importance. The seizure witnesses, viz.,
PWs I and 2 cannot be said to be independent in that way. PW-2 was having
a Pan Shop in front of the Bureau. Despite the fact that he was to carry on
his business in front of the Bureau, he did not support the prosecution case.
Why he was chosen to be a witness has not been disclosed. As noticed
hereinbefore, PW-I was an autorickshaw driver. A constable on duty ordinarily
G would not know him. Why PW-5 had sent for PWs I and 2 as search
witnesses and that too half an hour before leaving the office has not been
explained.

If it was a busy place, the officers would expectedly ask those to be
witnesses to the seizure who were present at the time in the place of occurrence.
H
RITESHCHAKARVARTlv.STATEOFMADHYAPRADESH[SINHA,J.] 78\

But, not only no such attempt was made, even nobody else who had witnessed A
the occurrence was made a witness. Even their names and addresses had not
been taken.

Illustration (g) appended to Section 114 of Indian Evidence Act reads
- thus:
B
"The Cou1t may presume -

(a) ***

(b) ***

(c) *** c
(d) ***

(e) ***

(f) ***
(g) that evidence which could be and is not produced would, if D
produced, be unfavourable to the person who holds it."

An adverse inference, therefore, could be drawn for non-examination of .
material witnesses.

Appellant has been gravely prejudiced by non-examination of Ms. Sabiha E
Khatun and Shri Bajpai. Moreover, ifthe seizure witnesses are to be believed,
their signatures had been obtained on blank papers. In that view of the matter,
seizure of the contraband becomes doubtful.

Ms. Vibha Datta Makhija, learned counsel appearing on behaif of the F
State, however, contended that it is not the quantity of evidence but the
quality thereof which would matter. There is no dispute in regard to the
aforementioned proposition of law; but if the procedural safeguards were
required to be strictly complied with, there was no reason as to why the main .
prosecution witnesses should not be examined. It may be true that PW-5 in
his evidence proved Ex. P/13 but then as indicated hereinbefore he has G
contradicted himself in material particulars. Whereas at one place he said that
the informer made his statements in his presence; but at another place he·
stated that he was made only a witness to the document. If he was present
throughout, we fail to see any reason as to why the entire statement was not
made by the informer in his presence. Even as regards the weight of the H
782 SUPREME COURT REPORTS [20061 SUPP. 6 S.C.R

A contraband and the nature of the bag in which the same was to be carried
stood contradicted. His evidence, thus, was inconsistent. He, therefore, in our
opinion, is not a reliable witness.

B
Strangely enough, a suggestion was given to PW-I that officers of the
Bureau disclosed to him the name of the person who would carry the
contraband; although from Ex P/16, it does not appear that even the informer
had any knowledge as regards the name of the person concerned.
-
It was submitted that although PWs 1 and 2 were declared hostile, their
signatures on the seizure documents had not been disbelieved. They
C categorically stated that their signature were obtained on blank papers and
they were not witnesses to seizure. On the face of such statements made by
the said witnesses, it was all the more necessary to examine all the departmental
witnesses.

It may be that the articles seized had been sent for chemical analysis
D and were found to be analysed but that loses much of its significance as the
prosecution must prove its case of recovery of the contraband beyond all
reasonable doubt.

It was furthermore urged that Appellant has not been able to prove the
defence raised by him. It was not necessary for him to do so. It was contended
E that the burden to prove the defence set up by him was on Appellant and
he failed to discharge the same. In a case like the present one, the said
submission cannot be appreciated. The prosecution was required to prove its
case beyond all reasonable doubt. If the prosecution has failed to prove its
case, it cannot fill up the lacuna by contending that Appellant has not proved
its defence.
F
Our attention has been drawn to Section I03 of the Indian Evidence
Act. The said provision has no application in this case. Appellant did not
raise a plea of alibi. Plea of alibi by way of defence stands on a different
footing. As and when such a defence is raised, ordinarily other defences are
G given up. Despite the provisions of Section 103 of the Indian Evidence Act,
even if alibi is not proved, the prosecution cannot rest its case only in terms
thereof. In other words, even if an alibi is not proved, the court shall no!
record a judgment of conviction unless the prosecution is found to have
established its case.

H Furthermore, why PW-6 who was a part of the raiding party did not
RITESHCHAKARVARTlr.STATEOFMADHYAPRADESH[SINHA,J.J 783
corroborate the statement of PW-5 is again a matter which raises a serious A
: doubt about the veracity of the prosecution case.

He even was not required to carry on any further investigation as all
the officers available at the Bureau had taken part in the raid and no other
independent witness was to be examined. Furthermore, how the accused was
identified is not known. How he could be singled out has not been explained. B

In Jagdish v. State of MP., [2003) 9 SCC 159, a Three-Judge Bench of
this Court set aside a judgment of conviction where independent witnesses
denied that search and seizure for recovery of opium took place in their
presence. An adverse inference was further drawn as to why PW-I Narcotic C
Sub-Inspector therein brought down only one passenger from the bus if he
did not have any prior information or entertain any suspicion regarding
involvement of Appellant therein being in possession or smuggling of opium.

In Bhola Ram Kushwaha v. State of MP., [2001) I SCC 35, this Court
although opined that only because witnesses have turned hostile, Appellant D
would be entitled to a judgment of acquittal as a matter of right, but having
regard to the statements of prosecution witnesses inter alia to the effect that
the police had called the witnesses in a police station and obtained their
signatures on the paper and the statements of the independent witnesses that
the accused was never interrogated and searched in their presence, the
judgment of conviction and sentence was set aside. E
The court should also take care of the fact that a person may not be
convicted on a misguided suspicion. [See Gopal v. State of MP., [2002) 9 SCC
595)

Although the effect of illegal search may not have any direct impact on F
the prosecution case but the same will have a bearing on the appreciation of
evidence of the official witnesses and other materials depending on the facts
and circumstances of each case. [See State of Punjab v. Ba/bir Singh., [1994)
3 sec 299]

In a large number of cases, this Court as also various High Courts have G
emphasized the need of conducting a search in presence of independent
persons. The law-requires that such search should normally be conducted by
a inagistrate or a gazetted officer. Even presence of a gazetted officer in the
raiding team would not subserve the requirements of Section 50 of the Act.
[See Jadunandan Roy v. The State of West Bengal, (2000) CWN 373 and H
784 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A Harun Rashid v. State of West Bengal & Anr., (2005) 2 Cal LT 262].
There is another aspect of the matter which cannot be lost sight of.
While dealing with a case of grave nature like the present one, there is always
a danger that conjectures and suspicion may take the place of legal truth.

B In Mousam Singha Roy and Ors v. State of West Bengal, [2003] 12 SCC
377, this Court held :

"It is also a settled principle of criminal jurisprudence that the
more serious the offence, the stricter the degree of proof, since a
higher degree of assurance is required to convict the accused."
c In Sharad Birdhichand Sarda v. State of Maharashtra, (1984] 4 SCC
116, it was held :

"We can fully understand that though the case superficially viewed
bears an ugly look so as to prima facie shock the conscience of any
court yet suspicion, however great it may be, cannot take the place
D
of legal proof. A moral conviction however strong or genuine cannot
amount to a legal conviction supportable in law .

.It must be recalled that the well established rule of criminal justice
is that "fouler the crime higher the proof. In the instant case, the life
E and liberty of a subject was at stake. As the accused was given a
capital sentence, a very careful, cautious and meticulous approach
was necessary to be made."

In Kashmira Singh v. State of MP., AIR (1952) SC 159, it was observed:

"The murder was a particularly cruel and revolting one and for
F that reason it will be necessary to examine the evidence with more
than ordinary care lest the shocking nature of the crime induce an
instinctive reaction against a dispassionate judicial scrutiny of the
facts and law."
G In a case of this nature, the Court will move cautiously in view of the
grave nature of the offence.

For the reasons aforementioned, we are of the opinion that Appellant
is entitled to benefit of doubt. The appeal is allowed. He is directed to be set
at liberty unless wanted in any other case.
H B.B.B. Appeal allowed.