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2015 (11) TMI 695 - SUPREME COURT

2015 (11) TMI 695 - SUPREME COURT - TMI - Conviction of appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 - Appellant found in possession of poppy husk - Held that:- There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the .....

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in Girja Prasad (dead) by LRs. vs. State of M.P., [2007 (8) TMI 727 - SUPREME COURT]

Once the possession of the contraband by the accused 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 .....

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ce 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 Act. The occurrence was in the year 1990 and the appellant has suffered a protracted proceeding of about twenty five years. In the facts and cir .....

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e Sessions Judge, Sirsa and convicted the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) on account of having been found in possession of poppy husk and sentenced him to undergo rigorous imprisonment for twelve years and to pay a fine of ₹ 1,50,000/- and in default to undergo rigorous imprisonment for six months. 2. Briefly stated case of the prosecution is that on 16/17.09.1990 mid night at about 12.15 a.m., Chander Singh-SI alongwith Ram .....

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e effect that as to whether he wanted to be examined before First Class Magistrate or Gazetted Officer in connection with the recovery of poppy husk from his trolley. The appellant had shown faith in Sub Inspector-Chander Singh and as per rules Sub-Inspector searched the trolley. Thirty three yellow coloured gunny bags containing poppy husk were recovered from the trolley attached to tractor and on weighing the bags, each bag was found to be of forty kilograms i.e. in total about thirteen quinta .....

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d 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 exa .....

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or the appellant Mr. Anmol Rattan Sidhu submitted that Chander Singh-SI was an important witness as he was the person who held the Nakabandi and prepared rukka and non-examination of Chander Singh is fatal to the prosecution case. It was contended that testimony of Ram Singh- PW-1 does not warrant credibility as he could not have been present at two places i.e. at the place of arrest of appellant-Baldev Singh and also at the place of arrest of one Bhoop Singh in connection with another FIR beari .....

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prosecution cannot be expected to examine independent witness and public witness, who happened to reach the spot when requested to join the police party but they refused to join. It was further contended that the sole testimony of Ram Singh-ASI is trustworthy and the appellant had not offered any satisfactory explanation for the huge quantity of contraband and the High Court rightly reversed the acquittal and the verdict of conviction warrants no interference. 6. We have carefully considered the .....

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17.09.1990, when the police party was holding Nakabandi on both sides of Kacha path leading to village Kingre from G.T. Road, the tractor was intercepted and the driver of the tractor-appellant was apprehended under suspicion at odd hours of midnight, prosecution cannot be expected to examine independent witnesses. 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 o .....

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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 can .....

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d to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad (dead) by LRs. vs. State of M.P., AIR 2007 SCW 5589 = (2007) 7 SCC 625, it was held as under:- [24] In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a .....

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g to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. [25] It is not necessary to refer to various decisions on the point. We may, however, state that before mo .....

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asis 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. .....

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possession of the contraband. Section 35 of the NDPS Act reads as under:- 35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-In this section culpable mental state inclu .....

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lieve a fact. Sub-section (2) of Section 35 provides that for the purpose of Section 35, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of the probability. Once the possession of the contraband by the accused 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 .....

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he 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. 13. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, AIR 2000 SC 821, this Court has clearly held that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Section 35 of NDPS Act the burden of proof is then upon him to prove that he had no knowledge t .....

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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 .....

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bt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. (Emp .....

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t Ram Singh-PW1 s testimony cannot be relied upon as PW-1 has stated that he remained busy in the investigation in the present case for 7-8 hours but the fact that Ram Singh has been associated in the investigation of another FIR No.235 dated 17.09.1990 relating to Police Station Sadar Dabwali at 5.30 a.m. in which one Bhoop Singh was arrested while carrying one kilogram and hundred grams opium, which according to the appellant, renders the presence of Ram Singh- ASI in the instant case highly d .....

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East, Deh.No.33 . It appears 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 .....

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icer/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 prejudice has been caused to the accused is a question of fact to be determined in each case. Since Ram Singh-PW-1 was a part of the police party and PW-1 has signed in all recovery memos, nonexamination of Chander Singh-SI could not have caused any prejudice to the accused in this ca .....

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is to be noted that huge quantity of poppy straw was recovered from the possession of the appellant. Admittedly, the police officials had no previous enmity with the appellant. It is not possible to accept the contention of the appellant that he is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the appellant. 18. In his statement under Section 313 Cr.P.C., the appellant denied the allegations .....

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