Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.20(b)(ii)(C), 54 Presumption u/s.54 – Appellant concurrently convicted u/s.20(b)(ii)(C) and sentenced, relying on the testimony of PW-7-DSP (who acted both as the informant and the IO) – On appeal, held: I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses – But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in the documents – Thus, a serious doubt is cast on the very search and seizure allegedly made by PW-7 – It is true that s.54 raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband – But to raise the presumption u/s.54 it must first be established that a recovery was made from the accused – The moment a doubt is cast upon the most fundamental aspect, the search and seizure, the appellant, will also be entitled to the same benefit as given by the Special Court to the co-accused – Appellant also entitled to the benefit of doubt – Judgments of the Special Court and the High Court set aside.
Narcotic Drugs and Psychotropic Substances Act, 1985 – Evidence – Police witnesses, independent witnesses – Held: It is not always necessary that the evidence of the police witnesses have to be corroborated by independent witnesses – Also, independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice – But if the Court has to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses and turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy – If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse – Once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, 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.
Allowing the appeal, the Court
HELD: 1.1 Some propositions of law on which there can be no controversy. They are (i) that as per the decision of the Constitution Bench of this Court in Mukesh Singh, the fact that the informant also happened to be the investigator, may not by itself vitiate the investigation as unfair or biased; (ii) that it is not always necessary that the evidence of the police witnesses have to be corroborated by independent witnesses, as held in Dharampal Singh and Mukesh Singh; (iii) that the independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice as held in Rizwan Khan; and (iv) that once it is established that the contraband was recovered from the accused’s possession, a presumption arises under Section 54. But if the Court has (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, 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. [Paras 17, 18][174-G; 175-AE] Mukesh Singh v. State (Narcotic Branch of Delhi) (2020)
10 SCC 120 : [2020] 9 SCR 245; Dharampal Singh v. State of Punjab (2010) 9 SCC 608 : [2010] 10 SCR 1160; Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627 : [2020] 7 SCR 546 – relied on.
1.2 The independent witnesses (CWs 1 and 2 ) who turned hostile, not only denied having witnessed anything, but also came up with a plausible explanation as to how their signatures found place in the documents mentioned by PW-7. According to both the independent witnesses they went to the police station in connection with some other dispute relating to the members of the Sindhi community. These 2 witnesses claimed to be elected counsellors of the local Panchayat and this claim was not challenged by the Additional Public Prosecutor in cross examination. Therefore, the case on hand is not a routine, run-of-the-mill matter where independent witnesses are won over and they had no explanation to offer about their signatures in the Panchanama. If the story advanced by PW-7 is to be believed, (i) he received the information at about 16:50 hrs.; (ii) he completed the formalities and sent notices to the independent witnesses at 17:10 hrs.; (iii) he left the Police Station at 17:10 hrs., and reached the place of incident in 5-7 minutes; and (iv) his team waited at the place of incident for 40 minutes for the accused to arrive. But in the said timeline, PW-7 is completely silent about the time when the witnesses reached the Police Station or the place of incident. [Paras 25, 27][180-G-H; 181-G-H; 182-A]
1.3 Further, the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents. In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case. Right from the beginning, the co-accused (A-2) was implicated at every stage. Admittedly, the information received by PW-7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellant as well as the co-accused. But for some strange reason, PW-7 chose to serve a notice under Section 50 of the Act only on the appellant and not on the co--accused. PW-7 also omitted deliberately or otherwise, to record, (i) the consent Panchnama of co-accused; (ii) the search Panchnama of the co-accused; and (iii) the recovery Panchnama in relation to the co-accused. This led to the Special Court acquitting the co-accused. It is quite strange that, (i) the information received by PW-7, (ii) the FIR; and (iii) the chargesheet implicated the co--accused, but the prosecution accepted the finding of the Special Court that there could have been no recovery from the co--accused despite the fact that she was also travelling in the same car. [Paras 31-33][182-E-H; 183-A-B]
1.4 It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant will also be entitled to the same benefit as given by the Special Court to the co--accused. The appellant is also entitled to the benefit of doubt. The judgments of the Special Court as well as the High Court in so far as the same relates to the conviction of the appellant, are set aside. The appellant shall be released forthwith, unless he is under custody in connection with some other case. [Paras 33A, 34][183A-D] Ajmer Singh v. State of Haryana (2010) 3 SCC 746 : [2010] 2 SCR 785; Mohinder Singh v. State of Punjab (2018) 11 SCC 570; State of Punjab v. Baljinder Singh and Ors. (2019) 10 SCC 473 : [2019] 13 SCR 520 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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