SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH versus STATE OF CHHATTISGARH on 30 August 2022

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[2022] 11 S.C.R.

ASANJEET KUMAR SINGH @ MUNNA KUMAR SINGH

v.

STATE OF CHHATTISGARH

(Criminal Appeal No. 871 of 2021)

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AUGUST 30, 2022

[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss.20(b)(ii)(C), 54 Presumption u/s.54 – Appellant concurrentlyconvicted u/s.20(b)(ii)(C) and sentenced, relying on the testimonyof PW-7-DSP (who acted both as the informant and the IO) – Onappeal, held: I.O. examined as PW-7 claims to have done everythingonly in the presence of independent witnesses – But thoseindependent witnesses not merely denied their presence andparticipation but also came up with an explanation as to how theirsignatures found a place in the documents – Thus, a serious doubtis cast on the very search and seizure allegedly made by PW-7 – It istrue that s.54 raises a presumption and the burden shifts on theaccused to explain as to how he came into possession of thecontraband – But to raise the presumption u/s.54 it must first beestablished that a recovery was made from the accused – The momenta doubt is cast upon the most fundamental aspect, the search andseizure, the appellant, will also be entitled to the same benefit asgiven by the Special Court to the co-accused – Appellant also entitledto the benefit of doubt – Judgments of the Special Court and theHigh Court set aside.

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Narcotic Drugs and Psychotropic Substances Act, 1985 –Evidence – Police witnesses, independent witnesses – Held: It isnot always necessary that the evidence of the police witnesses haveto be corroborated by independent witnesses – Also, independentwitnesses turning hostile need not necessarily result in the acquittalGof the accused, when the mandatory procedure is followed and theother police witnesses speak in one voice – But if the Court has tocompletely disregard the lack of corroboration of the testimony ofpolice witnesses by independent witnesses and turn a Nelson’s eyeto the independent witnesses turning hostile, then the story of theprosecution should be very convincing and the testimony of theH

SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.STATE OF CHHATTISGARH

official witnesses notably trustworthy – If independent witnessescome up with a story which creates a gaping hole in the prosecutiontheory, about the very search and seizure, then the case of theprosecution should collapse – Once the prosecution comes up witha story that the search and seizure was conducted in the presenceof independent witnesses and they also choose to examine thembefore Court, then the Court has to see whether the version of theindependent witnesses who turned hostile is unbelievable andwhether there is a possibility that they have become turncoats.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 Some propositions of law on which there can beno controversy. They are (i) that as per the decision of theConstitution Bench of this Court in Mukesh Singh, the fact thatthe informant also happened to be the investigator, may not byitself vitiate the investigation as unfair or biased; (ii) that it is notalways necessary that the evidence of the police witnesses haveto be corroborated by independent witnesses, as held inDharampal Singh and Mukesh Singh; (iii) that the independentwitnesses turning hostile need not necessarily result in theacquittal of the accused, when the mandatory procedure isfollowed and the other police witnesses speak in one voice asheld in Rizwan Khan; and (iv) that once it is established that thecontraband was recovered from the accused’s possession, apresumption arises under Section 54. But if the Court has (i) tocompletely disregard the lack of corroboration of the testimonyof police witnesses by independent witnesses; and (ii) to turn aNelson’s eye to the independent witnesses turning hostile, thenthe story of the prosecution should be very convincing and thetestimony of the official witnesses notably trustworthy. Ifindependent witnesses come up with a story which creates agaping hole in the prosecution theory, about the very search andseizure, then the case of the prosecution should collapse like apack of cards. It is no doubt true that corroboration byindependent witnesses is not always necessary. But once theprosecution comes up with a story that the search and seizurewas conducted in the presence of independent witnesses and theyalso choose to examine them before Court, then the Court hasto see whether the version of the independent witnesses who AB

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Aturned hostile is unbelievable and whether there is a possibilitythat they have become turncoats. [Paras 17, 18][174-G; 175-A-E]

Mukesh Singh v. State (Narcotic Branch of Delhi) (2020)10 SCC 120 : [2020] 9 SCR 245; Dharampal Singh v.BState of Punjab (2010) 9 SCC 608 : [2010] 10 SCR1160; Rizwan Khan v. State of Chhattisgarh (2020) 9SCC 627 : [2020] 7 SCR 546 – relied on.

1.2 The independent witnesses (CWs 1 and 2 ) who turnedhostile, not only denied having witnessed anything, but also cameCup with a plausible explanation as to how their signatures foundplace in the documents mentioned by PW-7. According to boththe independent witnesses they went to the police station inconnection with some other dispute relating to the members ofthe Sindhi community. These 2 witnesses claimed to be electedcounsellors of the local Panchayat and this claim was not challengedDby the Additional Public Prosecutor in cross examination.Therefore, the case on hand is not a routine, run-of-the-mill matterwhere independent witnesses are won over and they had noexplanation to offer about their signatures in the Panchanama. Ifthe story advanced by PW-7 is to be believed, (i) he received theEinformation at about 16:50 hrs.; (ii) he completed the formalitiesand sent notices to the independent witnesses at 17:10 hrs.; (iii)he left the Police Station at 17:10 hrs., and reached the place ofincident in 5-7 minutes; and (iv) his team waited at the place ofincident for 40 minutes for the accused to arrive. But in the saidtimeline, PW-7 is completely silent about the time when theFwitnesses 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 doneeverything only in the presence of independent witnesses. Butthose independent witnesses not merely denied their presenceGand participation but also came up with an explanation as to howtheir signatures found a place in those documents. In suchcircumstances, a serious doubt is cast on the very search andseizure allegedly made by PW-7. But unfortunately, both theSpecial Court and the High Court went by the law in theory,Hwithout 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. on31.05.2014 contained a reference to the appellant as well as theco-accused. But for some strange reason, PW-7 chose to serve anotice under Section 50 of the Act only on the appellant and noton the co--accused. PW-7 also omitted deliberately or otherwise,to record, (i) the consent Panchnama of co-accused; (ii) thesearch Panchnama of the co-accused; and (iii) the recoveryPanchnama in relation to the co-accused. This led to the SpecialCourt acquitting the co-accused. It is quite strange that, (i) theinformation received by PW-7, (ii) the FIR; and (iii) the charge-sheet implicated the co--accused, but the prosecution acceptedthe finding of the Special Court that there could have been norecovery from the co--accused despite the fact that she was alsotravelling 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 presumptionand the burden shifts on the accused to explain as to how hecame into possession of the contraband. But to raise thepresumption under Section 54 of the Act, it must first beestablished that a recovery was made from the accused. Themoment a doubt is cast upon the most fundamental aspect, namelythe search and seizure, the appellant will also be entitled to thesame benefit as given by the Special Court to the co--accused.The appellant is also entitled to the benefit of doubt. Thejudgments of the Special Court as well as the High Court in sofar as the same relates to the conviction of the appellant, are setaside. The appellant shall be released forthwith, unless he is undercustody in connection with some other case. [Paras 33A, 34][183-A-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 Singhand Ors. (2019) 10 SCC 473 : [2019] 13 SCR 520 –referred to.

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From the Judgment and Order dated 01.10.2019 of the High Courtof Chhattisgarh at Bilaspur in Criminal Appeal No. 790 of 2017.CSomanatha Padhan, Abhas Parimal, Ashok Anand, Rakesh Kr.Singh, Akash Kakade, Mukul Dev Mishra, Ms. Sujata Kumari Muni,Advs. for the Appellant.

Sourav Roy, Dy. AG, Mahesh Kumar, Prabudh Singh, Zakir Husain,DMs. Devika Khanna, Mrs. V. D. Khanna for VMZ Chambers, Advs.for the Respondent.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

E1. Challenging his conviction for an offence punishable underSection 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic SubstancesAct, 1985 (hereinafter referred to as the ‘Act’) and the sentence ofrigorous imprisonment for 10 years together with a fine of Rs.1 lakhimposed upon him by the Special Court and confirmed by the High Courtof Chhattisgarh, Accused No.1 has come up with the above appeal.F2. We have heard Mr. Somnath Padhan, learned counsel for theappellant and Mr. Sourav Roy, learned Deputy AG for the respondentState.

3. The case of the prosecution was that on 31.05.2014, the StationHouse Officer (SHO for short) of Chakarbhata Police Station receivedGa secret information that the appellant and his friend Reena Das, werecarrying ganja in the dickey of a car bearing registration no.CG-04HA-4850 and were travelling from Raipur to Pendra Road; that the SHOrecorded this information in Rojnamcha Sanha, prepared MukhbirSuchana, forwarded the said information to the higher officer, proceededHto the spot, stopped the car, served a notice under Section 50 of the Act, conducted a search and found 47.370 Kgs. of ganja kept in three bagsin the dickey of the car; that after weighing the contraband and preparingPanchnama, the SHO collected samples from each of the three bags,sent them to Forensic Science Laboratory (‘FSL’ for short) and afterreceipt of the Report, filed a charge-sheet against the appellant as wellas his friend Reena Das for an offence punishable under Section 20(b)of the Act.

4. The prosecution examined seven witnesses. Two independentwitnesses were examined as court witnesses CWs 1 and 2.

5. By a judgment dated 10.05.2017, the Special Court convictedthe appellant for the offence under Section 20(b)(ii)(C) of the Act, andimposed a sentence of rigorous imprisonment of 10 years. However, theco-accused Reena Das was acquitted by the Special Court.

6. The State did not file any appeal against the acquittal of ReenaDas, who was A-2. But the appellant filed an appeal on the file of theHigh Court of Chhattisgarh, Bilaspur. The appeal was dismissed by ajudgment dated 01.10.2019. Therefore, A-1 who has suffered concurrentconvictions has come up with the above appeal.

7. The Special Court, for coming to the conclusion that the appellantwas guilty of the offence, relied extensively upon the testimony of Mr.N.L. Dhritlahre, Deputy Superintendent of Police, who acted both asthe informant and as the Investigating Officer (‘I.O.’ for short) andwho was examined as PW-7. The Special Court found that PW-7 hadfollowed the procedure prescribed in Sections 43 and 49 of the Act andthat his testimony remained unshaken.

8. Though PW-7 claimed that the search and the seizure wasconducted in the presence of two independent witnesses examined asCW-1 and CW-2, these two witnesses claimed ignorance of the entireoperation. Therefore, the Special Court came to the conclusion that thetestimony of PW-7 was not corroborated by the evidence of independentwitnesses.

9. However, the Special Court came to the conclusion that theentries made by PW-7 and the documents prepared by him both beforeand after the search and seizure, corroborated his oral testimony andthat therefore the guilt of the appellant stood established beyondreasonable doubt, even without corroboration.

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A10. But, interestingly, the Special Court acquitted A-2 namely ReenaDas on the ground, (i) that though in the Daily Register of Exhibit P-12and the Memo of Information, the name of A-2 was mentioned, PW-7did not mention her name in his testimony; (ii) that the notice underSection 50 was not served on A-2; and (iii) that there was no proofbeyond doubt to show that the seized contraband was under theBpossession and the knowledge of A-2.

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11. As we have stated earlier, the State did not file an appealagainst the acquittal of A-2. But the High Court held that the evidenceof PW-7 remained unshaken even during cross-examination and thatthere was no reason to disbelieve his version. The High Court also heldCthat the Head Constable and the Constable examined as PWs 3 and 4corroborated the statement of PW-7 with regard to the compliance ofthe requirements of Sections 42 and 57 of the Act. Though an argumentwas raised before the High Court on behalf of the appellant that thesamples sent to FSL were not part of the seized contraband, it wasDrejected by the High Court on the basis of the cogent testimony of PW-7. This is how the High Court confirmed the conviction of the appellantas well as the sentence imposed upon him.

12. Assailing the concurrent judgments of the Special Court andthe High Court, it was contended by the learned counsel for the appellant,E(i) that the informant and the I.O. happened to be the same person; (ii)that the independent witnesses namely CW-1 and CW-2 did not supportthe case of the prosecution, thereby leaving the testimony of PW-7uncorroborated; (iii) that when the appellant and the co-accused werealleged in the charge-sheet to be travelling in the same car from whichganja was seized, the acquittal of one of them and the conviction of theFother, on the basis of the very same testimony of PW-7 cannot besustained; and (iv) that the principles laid down in a series of judgmentsof this Court have not been followed by the Special Court and the HighCourt. The learned counsel for the appellant placed reliance specificallyupon the decisions of this Court in Ajmer Singh vs. State of Haryana[1]Gand Mohinder Singh vs. State of Punjab[2].

13. As regards the testimony of PW-7, on which the Special Courtand the High Court placed heavy reliance and complete faith, the learnedcounsel for the appellant raised the following contentions:- 1 (2010) 3 SCC 746H2 (2018) 11 SCC 570

— There are several omissions in his evidence; — He arrested both the accused and also charge-sheeted them,but admitted that there was no search warrant.

— He further stated that photograph of the vehicle was not in thelist of Final report and Crime Number was not mentioned in photographof car; — He was silent about presence of CWs i.e. independent witnessesand those independent witnesses pleaded ignorance; — Even property seizure memo was not signed by accused andwitnesses and there was no stamping. This is also admitted by him; — He admitted that he had not recorded the statement of the actualowner of the vehicle, which is a fundamental flaw in the investigation; — No notice U/S 50 NDPS Act was sent to Reena Das (A-2).Except in the FIR and Charge Sheet, name of Reena Das was notmentioned anywhere i.e. consent letter, memo of consent, memo ofsearching, memo of seizure/recovery of contraband substance, memoof identification of materials, memo of physical verification of weighingmachine, memo of weighing of contraband substance, memo of sampleweighing of intoxicated materials etc.; — But he denied in the cross examination, the suggestion that ladywas not seated in the vehicle; and — Time mentioned varied from document to document.

14. The learned counsel for the appellant also raised an issueabout the ownership of the car and highlighted the fact that the ownernamely, Bhumika Patel (PW-4) was not even interrogated. But we donot think the ownership of the car was of any material significance.Therefore, we are not dealing with the same elaborately.

15. In response to the contentions raised on behalf of the appellant,it was argued by the learned Deputy AG for the State:- That the NDPS Act is a complete Code in itself; That once the procedure enumerated in Sections 42, 43, 49 &50 are scrupulously followed, it was for the accused, from whosepossession the substance is recovered, to explain how he came intopossession; A

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A That as held by this Court in Mukesh Singh vs. State (NarcoticBranch of Delhi)[3], it is not always necessary to corroborate the testimonyof police officials, through the testimony of independent witnesses; That as held by this Court in Dharampal Singh vs. State ofPunjab[4], lack of independent witness is not fatal to the case of theBprosecution; That by the same analogy it was held by this Court in RizwanKhan vs. State of Chhattisgarh[5], that the independent witnesses turninghostile, cannot be a ground for acquittal under the NDPS Act; That the protection under Section 50 of the Act is available onlyCto the search of the body of a person and not to the search of a vehicleor place, as held by this Court in State of Punjab vs. Baljinder Singhand Ors.[6];

That since the recovery was made in this case from the boot ofthe car, Section 50 had no application and hence the acquittal of the co-Daccused was also of no consequence; That the question whether the informant can be I.O. is no longerres integra in view of the decision of this Court in Mukesh Singh (supra); That once possession is proved under Section 54, the accused ispresumed to be guilty of the offence, in view of the presumption underESection 54 of the Act; and That therefore the concurrent findings of the Courts below needno interference.

16. We have carefully considered the rival contentions. We haveFalso perused the records of the Special Court including the testimony ofwitnesses.

17. At the outset we would take note of some propositions of lawon which there can be no controversy. They are, (i) that as per thedecision of the Constitution Bench of this Court in Mukesh Singh (supra),Gthe fact that the informant also happened to be the investigator, may notby itself vitiate the investigation as unfair or biased; (ii) that it is not 3 (2020) 10 SCC 1204 (2010) 9 SCC 6085 (2020) 9 SCC 627H6 (2019) 10 SCC 473

always necessary that the evidence of the police witnesses have to becorroborated by independent witnesses, as held in Dharampal Singhand Mukesh Singh (supra); (iii) that the independent witnesses turninghostile need not necessarily result in the acquittal of the accused, whenthe mandatory procedure is followed and the other police witnesses speakin one voice as held in Rizwan Khan (supra); and (iv) that once it isestablished that the contraband was recovered from the accused’spossession, a presumption arises under Section 54.

18. But if the Court has — (i) to completely disregard the lack ofcorroboration of the testimony of police witnesses by independentwitnesses; and (ii) to turn a Nelson’s eye to the independent witnessesturning hostile, then the story of the prosecution should be very convincingand the testimony of the official witnesses notably trustworthy. Ifindependent witnesses come up with a story which creates a gapinghole in the prosecution theory, about the very search and seizure, thenthe case of the prosecution should collapse like a pack of cards. It is nodoubt true that corroboration by independent witnesses is not alwaysnecessary. But once the prosecution comes up with a story that thesearch and seizure was conducted in the presence of independentwitnesses and they also choose to examine them before Court, then theCourt has to see whether the version of the independent witnesses whoturned hostile is unbelievable and whether there is a possibility that theyhave become turncoats.

19. Let us see in the case on hand what PW-7 stated about themanner in which the witnesses were roped in. The relevant portion ofthe testimony (Chief Examination) of PW-7, where a reference is madeto independent witnesses, is extracted as follows:

“(5)I got the information on 31.05.2014 at 16.50 Hrs. frominformant that the one silver colour Hyundai Verna Carhaving registration no.C.G.-04-HA-4850 is silver, in which,Sanjeet Kumar Singh @ Munna Singh resident of KabirNagar, Raipur and his lady friend namely Reena Das @Manali Das resident of Kabir Nagar, Raipur have lefttowards Pendra road from Raipur carrying huge quantityof cannabis in the truck (Dikki) of Car for the purpose ofsale, who would go via Pandidiha bypass Road. I lodge theabove report at the serial no.1283 of Station Diary registermaintained at Police Station. Today, I brought the Daily A

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Register with me. The Serial No.1283 entered in the DailyRegister is Exhibit P-12 and its certified copy is Exhibit P-12 “C: I prepared the memo (Panchnama) of the informationof informant in the presences of witnesses Virender KumarSahu and Baldev Singh Rajput. The memo (Panchnama)of the information of informant is Exhibit P-13 and I hadmy signatures on A to A parts. I served notice for thepurpose of summoning to the witnesses. The notice givento the witness Sunil Maldhani which is Exhibit C-14,where my signatures on B to B parts and the notice sentto the witness Firturam Banware for appearing/presenting at the time of proceedings is Exhibit C-1, onwhich, my signatures is on B to B parts.

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(7) Thereafter, I made entry at serial no.1286 in the daily registermaintained at Police Station about the departure time i.e.17.10Dhrs. along with constable nos.444, 672 and woman constableno.981 for Bypass Road Tiwaripara for the purpose ofbarricading by Government vehicle. I also took thedocuments and seal with me. The in-charge namely A.S.I.,Sharma of Police Assistant Center, Sakri was informed andEthe witnesses namely Katti Sunil Kalwani and FirturamBanware were also taken for the purpose of proceedingsand in this connection, I made entry at the serial no.1286 indaily register, which is Exhibit P-17 and the certified copyof the same is Exhibit P-17 “C”.

F(8)I prepared the memo (Panchnama) under Section 50N.D.P.S Act in the presences of witnesses namely SunilMaldhani and Firturam Banjare, which is Exhibit C-2 andon which, my signatures at C to C parts.

(9) Contraband substance in three plastic bags was recoveredfrom the dickey of Car having registration no.C.G. – 04-H.A – 4850 in possession of Sanjeet Kumar Singh, seizureis Exh C 5 where my signature is at D to D Part. When Isee the bags kept in dickey of the car by opening the stitchesin presence of Sunil Maldhani Firturam Banwane.”

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20. In his cross-examination, PW-7 stated as follows:

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“(22) Both the witnesses belong to Chakarbhata. I know previouslyAto both witnesses. I have sent the notices to both witnessesin their names. It is correct to say that I cannot recall todaythat through whom, the above notice was sent. It is alsocorrect to say that I had sent the above notice at 17.10Hrs. I cannot recall that at what time, the above witnessesBin Police Station.

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(24) The houses of witnesses namely Sunil Maldhani and Firturamis situated at the distance about one Kilometer away fromPolice Station. It is correct to say that it takes the time toCsearch for and reaching to witnesses. The witness was silent,when the question asked that at what time the independentwitnesses were presented. It is incorrect to say that on thememo of the information received from the informant, Ihad took the signatures of respective signatures of witnessesDafter returning to Police Station from the place of theoccurrence of incident.

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(29) I get the contraband substances identified by the witnesses.It is correct to say that I have not mentioned that contrabandsubstances identified by the witnesses in memo ofidentification Exhibit C-7.

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(38) It is also incorrect to say that the witnesses used tofrequently visit at Police Station. Today, I cannot recall thaton the date of occurrence of incident, the witnesses namelySunil Maldhani and Firtu Banware had visited to the PoliceStation in relation of their own some dispute. It is alsoincorrect to say that I get the signatures on the documentsof above both witnesses at Police Station.”

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21. Having seen what PW-7 said about the presence ofindependent witnesses, let us now see what these independent witnesseshad to say. The relevant portion of the testimony of Shri FiruturamBanware examined as CW-1 reads as follows:

178SUPREME COURT REPORTS

A“1.I know Sunil Malghani. I and Sunil Malghani both wereCounsellor of Bodri Panchayat. I do not know accusedpersons present herein the Court. I am seeing them todayfor the first time.

2. I was not called by Police of Police station Chakarbhata inBrelation to Mukhbir information of Ganja in the year 2014or at another time, I was never called at Police-station, Inever went to Pendidih by pass road with Police. Policenever stopped any car in my presence, I had not seen thataccused persons present here in the court were sitting inany car, Police never seized any Ganja from any car in myCpresence. Police did not do any weighing proceedings ofGanja or proceedings of taking sample in my presence.

3. In the year 2014 I went to the Police-station Chakarbhatain relation to the dispute between some Sindhis and at thattime Police took my signature on some documents. I didDnot read in which relation those documents were and I wasalso not told about the contents of documents because atthat time no documentation was done. Exhibit C.1, C.2, C.3,C.4, C.5, C.6, C.7, C.8, C.9, C.10 which is in three pages,Part A to A of C.11, C.12, C.13 bears my signature. Part BEto B of Ex.P/9 bears my signature. Police did not took mystatement.

//Cross-examination by Shri Kundan Singh, PublicProsecutor for Prosecution//

4. I had studied up to Eighth Class. It is correct to say that asFI am Counsellor it is my duty to help Police. Earlier I wasCounsellor of Nagar Panchayat Bodri two times for fiveyears. It is correct to say that being Counsellor I have tovisit Police whenever I am called. It is correct to say thatduring the investigation of crime Public Representatives areGcalled, witness himself states that once he was called. It isincorrect to say that on 31.05.2014 at about 17.00 hours Iwas called at the Police-station, witness himself states thatbecause there was dispute between Sindhis he went tothe Police-station. It is correct to say that at that day SunilMaghlani also went there with me. It is correct to say that H

upon saying of someone document must not be signedwithout reading it…

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7. It is incorrect to say that Weighment Panchnama wasdone in my presence. It is incorrect to say that Ganjarecovered from accused was weighed in my presence andin the presence of Sunil Malghani and at that time 20 kilo370 grams in one bag, 20kilogram in second bag and 07kilogram in third bag was found.”

22. The relevant portion of the evidence of Shri Sunil KumarMalghani, examined as CW-2 reads as follows:

“1.I do not know accused persons present here in the Court.In the Year 2014 I was Counsellor of Ward number 7 ofBodri Nagar Panchayat. Two and half year ago I andFirturam Banware went to Police-station Chakarbhata. Wewent there for compromise for the dispute between ourpeople. Police took our signature on 4-5 documents. Noproceedings were done by Police in my presence. Policedid not caught any articles from the accused persons in mypresence. Police did not gave me any notice.

2. Part A to A of notice under Section 160 of the Cr.P.C. videEx.P/14 bears my signature. Part B to B of C.2, C.3, C.4,C.5, C.6, C.7, C.8, C.9, C.10, C.11, C.12, C.13 bears mysignature.

//Cross-examination by Shri Kundan Singh, PublicProsecutor for Prosecution//

3. It is correct to say that I and Firturam Banware went toPolice-station Chakarbhata in the evening at 5.00 hours of31.05.2014. It is incorrect to say that notice was given tome by Police-station Chakarbhata to be present for theinvestigation of Ganja case. It is incorrect to that with PoliceI and Firturam Banware went to Pendidih by pass road.

4. It is incorrect to say that Car number C.G.04 H.A. 4850which was in possession of accused Sanjeet Kumar wasstopped and searched and at that time form the back sidedickey of car psychotropic Ganja was found inside three A

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Awhite color plastic bags and it’s Panchnama was done inmy presence.”

23. CWs 1 and 2 were cross-examined by the Additional PublicProsecutor. A suggestion was put to both these witnesses that the familyof the accused persons met them and that they were influenced. In thisBregard CW-1 denied the suggestion of the Public Prosecutor in thefollowing words:

“10. It is incorrect to say that family of accused persons met meand because they gave me offer and in that greed I am givingfalse statement. Witness himself states that he does not knowCfamily of accused persons. It is incorrect to say that today familyof accused persons came in the Court and met me.”

24. Similarly, CW-2 denied the suggestion of the Public Prosecutorthat he came under the influence of the family members of the accused.The relevant portion reads as follows:- D

“4. It is incorrect to say that family of accused persons met me. Itis also incorrect to say that today I am giving false statementbecause of influence of parents of accused persons. It is true tosay that before signing the document one must read it. It is incorrectto say that proceedings took place in my presence and for thisEreason I signed on documents.//Cross-examination by Shri Kundan Singh, PublicProsecutor for Prosecution//

5. It is correct to say that when I signed on documents at thattime nothing was written on documents. It is correct to say thatFmy signature was taken on blank documents. It is correct to saythat the documents on which my signature was taken were notread over to me.”

25. The independent witnesses who turned hostile, not only deniedhaving witnessed anything, but also came up with a plausible explanationGas to how their signatures found place in the documents mentioned byPW-7. According to both the independent witnesses they went to thepolice station in connection with some other dispute relating to themembers of the Sindhi community. These 2 witnesses claimed to beelected counsellors of the local Panchayat and this claim was notchallenged by the Additional Public Prosecutor in cross examination.

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Therefore, the case on hand is not a routine, run-of-the-mill matter whereindependent witnesses are won over and they had no explanation tooffer about their signatures in the Panchanama.

26. The statement of these two independent witnesses assumessignificance in the light of certain other facts also. They are:- ��According to PW-7, he received information from one Mukhbirat 16:50 hrs. on 31.05.2014; ��PW-7 claims that upon receipt of information, he preparedExhibit P-5 and completed the other formalities. Thereafter PW-7 sent notices to the independent witnesses at 17:10 hrs.; — PW-7 further claims that he departed to the place of incidentat 17:10 hrs, from the Police Station and that the distance betweenthe place of incident and the Police Station is approximately 7-8Kms.; — PW-7 stated that the houses of the independent witnesses SunilKumar Malghani and Firuturam Banware were located at adistance of approximately 1 Km from the Police Station; — Interestingly, the Learned Special Judge records in Paragraph24 of the deposition of PW-7 that when asked about the time ofarrival of the independent witnesses at the Police Station, thewitness (PW-7) remained silent;

— In Paragraph 25 of the testimony of PW-7 (cross-examination)it is recorded that PW-7 reached the place of incident in 5-7minutes approximately. This is despite the fact that even accordingto PW-7, the distance between the Police Station and the place ofincident was approximately 7-8 Kms.; and — PW-7 further claimed that his team waited at the place ofincident for 40 minutes, after which the accused reached the placeof incident.

27. Therefore, if the story advanced by PW-7 is to be believed,(i) he received the information at about 16:50 hrs.; (ii) he completed theformalities 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 ofincident in 5-7 minutes; and (iv) his team waited at the place of incidentfor 40 minutes for the accused to arrive.

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A28. But in the above timeline, PW-7 is completely silent about thetime when the witnesses reached the Police Station or the place ofincident.

29. Exhibit C-1 is the notice purportedly served on the independentwitness Firuturam Banware. This notice directs the said witness to appearBat 17:10 hrs. at the place indicated therein namely, “Saida Tiwari ParaBy-pass Main Road”. Even according to PW-7 this notice to the witnesswas sent only at 17:10 hrs., to be served at the residence of the witnesslocated 1 Km. away. Therefore, there was no way that PW-7 couldhave expected the witness to be available at the place of incident at17:10 hrs.C

30. Exhibit C-2 is the notice served on the appellant herein (A-1)under Section 50 of the Act. The time shown therein is 18:00 hrs. Thisnotice requires the appellant to indicate whether he would like to besearched in the presence of Magistrate or Gazetted Officer. It is alsostated in the notice that the contents thereof were read over in theDpresence of witnesses. Exhibit C-3 is the consent Panchnama of theappellant agreeing to be searched by the police officer. This Panchnamacontains the names of Sunil Malghani and Firuturam Banware (CWs 1and 2). Even the search Panchnama of the accused marked as ExhibitC-4 refers to the presence of CWs 1 and 2 at the time of search.

E

31. Therefore, it is clear that the I.O. examined as PW-7 claimsto have done everything only in the presence of independent witnesses.But those independent witnesses not merely denied their presence andparticipation but also came up with an explanation as to how theirsignatures found a place in those documents.F32. In such circumstances, a serious doubt is cast on the verysearch and seizure allegedly made by PW-7. But unfortunately, both theSpecial Court and the High Court went by the law in theory, withoutapplying the same to the facts of the case.

33. Right from the beginning, the co-accused Reena Das (A-2)Gwas implicated at every stage. Admittedly, the information received byPW-7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellantas well as the co-accused Reena Das. But for some strange reason,PW-7 chose to serve a notice under Section 50 of the Act only on theappellant and not on the co-accused. PW-7 also omitted deliberately orotherwise, to record, (i) the consent Panchnama of co-accused; (ii) theH

search Panchnama of the co-accused; and (iii) the recoveryPanchnama in relation to the co-accused. This led to the Special Courtacquitting the co-accused. It is quite strange that, (i) the informationreceived by PW-7, (ii) the FIR; and (iii) the charge-sheet implicated theco-accused, but the prosecution accepted the finding of the Special Courtthat there could have been no recovery from the co-accused despite thefact that she was also travelling in the same car.

33-A. It is true that Section 54 of the Act raises a presumptionand the burden shifts on the accused to explain as to how he came intopossession of the contraband. But to raise the presumption under Section54 of the Act, it must first be established that a recovery was made fromthe accused. The moment a doubt is cast upon the most fundamentalaspect, namely the search and seizure, the appellant, in our consideredopinion will also be entitled to the same benefit as given by the SpecialCourt to the co-accused.

34. In view of the above, we are of the considered view that theappellant is also entitled to the benefit of doubt. Therefore, the appeal isallowed. The judgments of the Special Court as well as the High Courtin so far as the same relates to the conviction of the appellant, are setaside. The appellant shall be released forthwith, unless he is under custodyin connection with some other case. No costs.

Divya Pandey

Appeal allowed.

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