CAUSE TITLE:
Sanjeet Kumar Singh @ Munna Kumar Singh Vs State of Chhattisgarh
DATE OF ORDER:
30 August 2022
JUDGE(S):
HON’BLE JUSTICES INDIRA BANERJEE AND V. RAMASUBRAMANIAN
PARTIES:
Appellant(s): SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH
Respondents: STATE OF CHHATISGARH
SUBJECT
The Hon’ble Supreme Court in this case allowed the appeal of an accused who was convicted and sentenced for committing an offence under Section 20(b)(ii)(c) of the Narcotics, Drugs and Psychotropic Substances Act by the Special Court and The High Court of Chhattisgarh.
IMPORTANT PROVISIONS
Narcotic Drugs and Psychotropic Substances Act, 1985
- Section 20(b)(ii)(C)- 20. Punishment for contravention in relation to cannabis plant and cannabis-
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,— (ii) where such contravention relates to sub-clause (b)
(C) and involves commercial quantity, with rigorous imprisonment for a term which shallnot be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.
- Section 43 Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in section 42 may—
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.—For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
- 49. Power to stop and search conveyance.—Any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance or controlled substance, in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and—
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the conveyance;
(c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon.
- Section 54- Presumption from possession of illicit articles.—In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of—
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily
BRIEF FACTS
- Appellant (Accused No. 1) has preferred the present appeal challenging his conviction for offence punishable under Section 20(b)(ii)(C) of the NDPS Act (hereinafter referred to as “the act”) along with the sentence of 10 years of Rigorous imprisonment and a fine of Rupees 1 Lakh imposed by a special court and confirmed by the High Court.
- Prosecution Story- on 31.05.2014, S.H.O of Chakarbhata Police Station received secret information that the appellant and his friend are carrying ganjain the dickey of a car and were traveling from Raipur to Pendara road. The S.H.O after completing the formalities, reached the spot, stopped the car, served notice u/s 50 of the act, conducted a search and found 47.370 kgs of Ganja kept in 3 bags. After preparing the Panchnama, the S.H.O collected samples from all the bags and sent them for FSL. After receipt of the FSL report, a charge sheet was filed against the appellant as well as his friend.
- After examination of witnesses and evidence, the special court by its judgment dated 10.05.2017 convicted the appellant for the aforementioned offense, sentencing him to 10 years of RI and imposing a fine of Rs. 1 lakh but acquitted the co-accused.
- Appellant filed an appeal before High Court of Chhattisgarh, Bilaspur which was dismissed vide judgment dated 01.10.2019. Hence the present appeal.
- The special court relied heavily on the testimony of Mr. N.L. Dhritlahre, DSP acting both as the informant and I.O. (PW-7). The special court found that the procedures u/s 43 and 49 were followed and his testimony remained unshaken. Though search and seizure took place in presence of 2 independent witnesses, they, however, remained ignorant of the process. Hence, the testimony of I.O couldn’t be corroborated by that of independent witnesses. However, it was found by the Special Court that the documents prepared by I.O before and after the search corroborated his oral testimony, thereby establishing the guilt of the accused beyond a reasonable doubt.
- High court also observed that the testimony of PW-7 remained unshaken and there was no reason to disbelieve his testimony.
ARGUMENTS ADVANCED BY APPELLANT
- That the I.O and informant are one and the same person.
- Independent witnesses CW-1 and CW-2 did not support the case of the Prosecution, leaving the testimony of PW-7 uncorroborated.
- When the appellant and co-accused were traveling in the same car where ganjawas found, the acquittal of one and conviction of the other on the testimony of the same person cannot be sustained.
- Principles laid down by the Apex Court in judgments like Ajmer Singh vs. State of Haryana and Mohinder Singh vs. State of Punjab were not followed by the trial court and the High Court.
- As regards the testimony of PW-7, the following objections inter-alia were raised:
- Several omissions in his evidence
- Both the accused were arrested and charge-sheeted, but he admitted that there was no search warrant.
- Photograph of the vehicle did not form part of the final report and crime no. was not mentioned in the photo of the car.
- Time mentioned varied from document to document.
- Objections were also raised regarding the non-examination of the owner of the vehicle namely, Bhumika Patel.
ARGUMENTS ADVANCED BY THE STATE
- That once the procedure under sections 42, 43 49 and 50 are followed, the burden of proof shifts on the accused to explain the possession of substance from whom it is recovered.
- State relied on the judgment of Hon’ble SC in Mukesh Singh vs. State (Narcotic Branch of Delhi to argue that it is not always necessary to corroborate the testimony of police officials with that of independent witnesses.
- Deficiency of independent witnesses is not deadly to the case of the prosecution and independent witnesses turning hostile cannot be a ground for acquittal.
- Section 50 grants protection only for the search of bodies of persons and not vehicles. This argument was made relying on the judgment of State of Punjab vs. Baljinder Singh and Ors.
- Once the possession is proved, the accused is presumed to be guilty under section 54 of the act.
ANALYSIS BY THE COURT
- Fact that the Informant and investigator being the same person shall not itself vitiate the proceedingsunder the act as biased.
- Evidence of police officers need not necessarily be corroborated by the testimony of independent witnesses. The hostility of independent witnesses doesn’t necessarily harm the prosecution case when due procedure stipulated by the act is followed as per Rizwan Khan but if the court is to turn a blind eye to the hostility of independent witnesses, then the prosecution story must be very convincing and the testimony of the official witnesses should be trustworthy. If the theory of independent witnesses creates a hole in the prosecution story about the search and seizure, the prosecution story must collapse.
- Once the prosecution puts forth that the search was conducted in front of independent witnesses and also chooses to examine them, 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.
- In this case, the independent witnesses not only denied witnessing anything but also came with an explanation as to how their signatures appeared on the documents prepared by PW-7.
- In such a situation, serious doubt is cast on the prosecution story. But both the special court and the High Court went on according to law alone without applying them to the facts of the case. Though the information received by the police had a reference to both the appellant and the co-accused, but PW-7 chose to serve notice u/s 50 only to the appellant and not to the co-accused.
- Court observed that while it is true that presumption u/s 54 shifts the burden of proof to explain the possession, but to raise such a presumption it is necessary to establish that the recovery was made from the accused. The moment doubt is cast on the very search and seizure, the accused is entitled to benefit of doubt.
- Appeal allowed.
CONCLUSION
The Hon’ble Supreme Court observed that law is not to be followed blindly without its application to the facts of the individual case. It observed that when doubt is cast on search and seizure either by the testimony of individual witnesses or otherwise and does not lead to the establishment of the fact that recovery was made from the accused, the presumption under section 54 shifting the burden of proof on the accused cannot be raised.
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