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Makhan Singh Versus State of Haryana

2015 (4) TMI 889 - SUPREME COURT

Conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Seizure of three bags containing commercial quantity of poppy husk - Held that:- Since the vehicle was searched and the contraband was seized from the vehicle, compliance with Section 50 of the NDPS Act was not required. In the absence of independent evidence connecting the appellant with the fitter-rehra, mere compliance with Section 50 of the NDPS Act by itself would not be sufficient to establish the gui .....

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ation to poppy straw. The maximum punishment provided in the section is imprisonment of twenty years and fine of two lakh rupees and minimum sentence of imprisonment of ten years and a fine of one lakh rupee. Since in the cases of NDPS Act the punishment is severe, therefore strict proof is required for proving the search, seizure and the recovery - onviction of the appellant and the sentence imposed on him is set aside - Decided in favour of assessee. - Criminal Appeal No.682 of 2015 (Arising o .....

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Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and also the sentence of imprisonment of ten years along with a fine of ₹ 1 ,00,000 /- imposed on the appellant. 3. Briefly stated case of prosecution is that on 27.07.1994, the police officials during patrolling, when talking with one Manjeet Singh- PW1 and Gamdur Singh-DW2, saw the suspicious 'fitter- rehra' (a vehicle) driven by the appellant. Police intercepted the vehicle and questioned the appella .....

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commercial quantity of poppy husk (120 kgms.) were recovered from the appellant's vehicle. Police seized the bags, took sample of 200 grams from each of the bag and sealed them separately, and then sealed the remaining quantity in separate parcels and deposited the same with MHC. The sealed samples were sent to Chemical Examiner, who vide his report (Ext. PK) found the samples to be 'Powdered Poppy Husk'. On completion of investigation, police laid the chargesheet against the appella .....

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pellant under Section 15 of the NDPS Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of ₹ 1,00,000/- and in default, to undergo rigorous imprisonment for two years. Appellant, being aggrieved, filed the appeal challenging the conviction and sentence of imprisonment before the High Court. The High Court held that the evidence of PW6-Inspector Raghbir Singh and PW2-H.C.Suraj Mal is unimpeachable and vide impugned judgment dated 10.12.2007 confirmed the .....

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he testimony of both the defence witnesses. It was submitted that since both the independent witnesses did not support the prosecution story, the prosecution has not proved its case beyond reasonable doubt and this material aspect has been ignored by the courts below. Appellant also alleges that non-compliance of mandatory provisions under Sections 50 and 52 of the NDPS Act vitiates the alleged recovery of contraband. 7. Per contra, learned counsel for the respondent-State has supported the impu .....

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d DW2 have further deposed that when they went to police station for some work, they saw the appellant already in custody of police and that their signatures were obtained on the blank papers. In his cross-examination, though DW2 has admitted that Ext. PB bears his signature at point 'A', he disowned his statement in Ext.PL recorded under Section 161 of the Criminal Procedure Code. Though PW1 turned hostile, his evidence cannot be discarded as his testimony draws support from the version .....

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on assumptions than on acceptable basis. When PW1 and DW2 have asserted that they have signed only the blank papers, the courts below ought to have considered them in proper perspective. 10. For recording the conviction, the Sessions Court as well as the High Court mainly relied on the testimony of official witnesses who made the recovery, i.e. H.C. Suraj Mal-PW2 and Inspector Raghbir Singh- PW6, and found them sufficiently strengthening the recovery of the possession from the appellant. In our .....

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ecution. Though it is well-settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available. Independent witnesses PW1 and another independent witness examined as DW2 has spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to .....

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he prosecution ought to have endeavoured to prove whether the appellant had some nexus with the seized fitter-rehra. Though the police has seized the fitter- rehra (Ext. PB), the prosecution has not adduced any evidence either by examining the neighbours or others to bring home the point that the appellant was the owner or possessor of the vehicle. PW6 admitted in his cross-examination that signature or thumb impression of the appellant was not obtained on the recovery memo (Ext. PB). In our opi .....

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e by the police and that stand has been corroborated by the testimony of DW1, the prosecution ought to have adduced cogent evidence that the alleged fitter-rehra on which the appellant was alleged to be carrying 120 kilograms of poppy husk belongs to the appellant. Failure to adduce the evidence connecting the appellant with the fitter-rehra that the ownership/possession of fitter-rehra with the appellant is fatal to the prosecution case, benefit of which ought to have been given to the accused. .....

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s not mean that the Investigating Officer meant something else. 14. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, while dealing with the scope of Section 50 of the NDPS Act, had emphasized upon the aspect of availability of right of an accused to have 'personal search' conducted before a Gazetted Officer or a Magistrate and held as under: "32…The protection provided in the section to an accused to be intimated that he has the right t .....

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l. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial." 15. Compliance with Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying ought to be searched. In State .....

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hola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these a .....

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