TMI Blog2015 (11) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... ed has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in the prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence. From the evidence led by the prosecution, it has been proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of the thirty three bags of poppy husk in the trolley attached to the tractor. Upon appreciation of evidence, High Court rightly reversed the acquittal and convicted the appellant under Section 15 of the NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into police possession alongwith the said tractor with its trolley. On the basis of rukka, case bearing No.234 dated 17.09.1990 under Sections 15, 16, 61 and 85 of the NDPS Act was registered at P.S. Sadar, Dabwali. Subsequently, samples were sent for chemical analysis and were found to be poppy straw. On completion of investigation, chargesheet was filed under Sections 15 and 16 of the NDPS Act. 3. To substantiate the charges against the appellant, the prosecution examined only one witness Ram Singh-ASI-PW-1, affidavits of MHC Mohinder Singh and Constable Om Prakash and also the documents including FSL Report were filed. Sessions Judge, Sirsa vide its judgment dated 22.04.1994 acquitted the appellant observing that no other witness except Ram Singh-PW-1 was examined and that Ram Singh-PW-1 s evidence was not trustworthy to base the conviction. Aggrieved by the verdict of acquittal, State preferred appeal before the High Court of Punjab and Haryana at Chandigarh. The High Court vide impugned judgment reversed the judgment of acquittal and convicted the appellant under Section 15 of NDPS Act and sentenced him to undergo rigorous imprisonment and imposed fine as aforesaid. Aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses. In his cross-examination, PW-1 stated that two persons had come at the place of Nakabandi in the midnight and they were asked to join, but they refused to join. In the circumstances of the case, when there is satisfactory explanation for non-examination of independent witnesses, conviction can be based solely on the testimony of official witnesses if evidence of such official witnesses inspires confidence. 9. The accused sought to place reliance on the decision in Gyan Singh and Ors. v. State of U.P., 1995 Supp (4) SCC 658, wherein this Court observed that conviction cannot be based on uncorroborated testimony of official witnesses. But this judgment has no relevance in the facts and circumstances of the case as in Gyan Singh s case (supra), this Court focused on the need to have independent witnesses in the odd hours in night as at the distance of 100 yards there was habitation but in the instant case no such material is brought on record to show that there was human habitation in the nearby place. 10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... magistracy nor good to the public. It can only run down the prestige of the police administration . (emphasis supplied) [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. 12. Testimony of Ram Singh-PW-1 and evidence on record amply establishes physical possession of the contraband by the appellant. The appellant being the driver of the vehicle by all probabilities must have been aware of the contents of the bags transported in the trolley attached to the tractor. Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband. Section 35 of the NDPS Act reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of is then upon him to prove that he had no knowledge that the bags contained such a substance. This Court then went further on to explain as to the standard of proof that such an accused is expected to discharge and the modes vide which he can discharge the said burden. In paras (21) and (22) of the said judgment, this Court held as under:- 21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as beyond a reasonable doubt . If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the accused s awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt un-dispelled. Even so, it is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears from the above entry in the FIR, that the place of occurrence was the same for both the FIRs recorded on that night. The case relating to Bhoop Singh in FIR No.235 resulted in acquittal. Referring to the acquittal of Bhoop Singh, High Court observed that the same would warrant an inference that what is incorporated in FIR No.234 is incorrect and that defence has not been able to make any dent in the testimony of Ram Singh-ASI to discard his evidence as untrustworthy. We find no reason to take a different view. 16. Contention at the hands of the learned Senior Counsel for the appellant is that non-examination of Chander Singh-SI who prepared rukka and who investigated the case raises serious doubts about the prosecution case. Material on record would show that Chander Singh-SI who investigated the case was not examined by the prosecution in spite of several opportunities. No doubt, it is always desirable that prosecution has to examine the investigating officer/police officer who prepared the rukka. Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case. Whether or not any prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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