Date of judgement :
04/12/2001
Bench:
U.C. Banerjee, Y.K. Sabharwal
Parties:
Appellant: BAHADUR SINGH
Respondent: STATE OF MADHYA PRADESH & ANR.
Facts
● The Special Court formed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) found the appellant, Bahadur Singh, and one Amreek Singh guilty of the offence under Section 8 read with Section 15 of the Act. Both were given a sentence of ten years in prison and a fine of Rs.1 lakh each.
● Amalek Singh's appeal was approved by the High Court. His conviction and punishment were overturned. Bahadur Singh's conviction and sentence have been upheld, and he is now appealing to us for special leave.
● Bahadur Singh worked as a truck driver, while Amreek Singh worked as a truck cleaner. The prosecution's point is that information was obtained that the poppy straw was being transported in the vehicle.
● During the search of the vehicle, four polythene bags containing 3.900 kgs of poppy straw were discovered. Following the completion of the formalities, the defendants were charged, which culminated in the aforementioned conviction and sentencing.
● According to the defence, the poppy straw was recovered and seized in the presence of two independent witnesses. Just one of them, Pawan Kumar Sharma, PW1, was investigated by the prosecution. PW1 was declared hostile because he did not help the prosecution.
● He admitted to signing the papers as a punch witness, but he denied that 3.900 kg of poppy straw was recovered and confiscated from the driver, Bahadur Singh, and cleaner, Amreek Singh, in his presence. However, the conviction was based solely on the testimony of Investigating Officer, PW3, Head Constable Gontiya.
● On the facts and circumstances of the case, learned counsel for the appellant contends that there is no credible proof to demonstrate the recovery and seizure of the contraband, and that prosecution based solely on the testimony of PW3 is unwarranted. The submission is well-thought-out.
Analysis
● In terms of recovery and seizure, there are significant material inconsistencies in the evidence. In cross-examination, PW4, a constable, reported that when Pawan Kumar Sharma arrived at Kabir Chowk, where the truck was intercepted, PW3 told him that there was poppy straw in the truck and that when they arrived, PW3 had already begun searching the truck.
● There are also significant inconsistencies in the Maalkhana's deposit of the confiscated poppy straw. The deposit was made under Entry No.68-A from the 11th of October, 1997. The incident occurred on October 10th, 1997. Entry No.68, dated October 15, 1997, is the entry above Entry 68-A.
● The prosecutor did not question the officer who made these entries, although he was questioned as a defence witness. His reason for the above entries was that he failed to enter the confiscated material into the Maalkhana register and did so after the 15th day. The reasoning isn't really convincing. If he forgot to make the entry, it cannot be made using interpolation as previously mentioned. The entry could be made in the correct position on the correct date, and the reason for the delay could be clarified.
● He also claimed that since no money was deposited, he did not make any entries for the receipt of Rs.27,000/- related to the crime. During cross-examination, PW3, the Investigating Officer, reported as follows: "During detention, 54 currency notes of Rs.500 denomination each were seized from Bahadur Singh, totalling Rs.27,000/- and it is valid."
● It is incorrect to say that the amount of Rs.27,000 was never returned to Bahadur Singh. The police station's head, Moharrir Jagat Ram, has received the refund receipt. It is incorrect to say that I entered their truck and searched it unnecessarily for the purpose of harassing the accused Bahadur Singh and Amreek Singh and that the accused were unnecessarily arrested. It is incorrect to state that Rs.27,000 was not returned to the convicted."
● PW3 filed an application on the day the case was set for judgment before the trial judge, claiming that he had not confiscated any money from accused Bahadur Singh and was surprised when he acknowledged the seizure of Rs.27,000/-. PW3 had confiscated the number, according to the appellant, and had not returned it. "I have very carefully examined 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 submitted by H.C. Gontiya," the trial judge said in response to the controversy.
● Certainly, there are no entries for currency notes in Ex.P-15-C; however, a vertical line appears in the space left for the seizure particulars in each of these documents. When there is nothing to join, this sort of line is normally drawn. Despite the fact that H.C. Gontiya has not proven who wrote the relevant document and made entries in the diary, as R.N. Sharma PW-5 denied that he wrote the Ex.P015, I believe that H.C. Gontiya could not be held liable for the accused's 27,000/- loss.
Judgement
● If one closely examines the writing in Ex.P-15, one will notice that the entries concerning the definition of number and currency notes were not written by the same person who wrote and rendered the rest of the entries.
● In the first column, figure (4) of 54 is very different from the figure (4) of 451/97, and there is no doubt that these two figures of (4) were not written by the same author. Aside from that, I compared the writing of the case diary from October 10, 1997. Ex.P-15 and this seem to have been written by the same author. The reality of the seizure of 27,000/- rupees is not listed in the case diary of 10.10.97, which in normal circumstances should have been mentioned.
● Aside from that, the said amount was seized on 10.10.97, the date on which the accused Bahadur Singh was arrested, but the allegation was levelled against the I.O. for the first time on 29.09.98, the date on which the accused were examined by the court under Section 313 of the Cr.P.C. For the entire year, the accused remained dormant and did not make any hue and cry which in the ordinary course of nature would have been made. For all of these reasons, I believe the entries in Ex.P-15 pertaining to the sum were made after the challan was completed and filed.
● The prosecution's inability to prove who made the entries in exhibit p-15 about the number and when they were made cannot be used against the appellant.
● The appellant cannot be prosecuted based solely on the testimony of police witnesses, PW3, under the above circumstances. The question of whether Section 35 of the Act applies in this situation would not occur because the recovery is in doubt. The recovery of contraband was contested by the appellant. In the Maalkhana, there are significant inconsistencies in its recovery, seizure, and deposit. As a result, the prosecution has failed to prove its case against the appellant beyond a reasonable doubt, and the appellant is entitled to the benefit of the doubt.
● For the reasons mentioned above, we reverse the judgments of the High Court and the Special Court and acquit the appellant after approving the appeal.
