SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH VERSUS STATE OF CHHATTISGARH

SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH VERSUS STATE OF CHHATTISGARH


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 871 OF 2021
SANJEET KUMAR SINGH
@ MUNNA KUMAR SINGH                                    …APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH                                …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1. Challenging his conviction for an offence punishable under
Section   20(b)(ii)(C)   of   the   Narcotic   Drugs   and   Psychotropic
Substances Act, 1985 (hereinafter referred to as the ‘Act’) and the
sentence of rigorous imprisonment for 10 years together with a fine
of Rs.1 lakh imposed upon him by the Special Court and confirmed
by the High Court of Chhattisgarh, Accused No.1 has come up with
the above appeal.
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2. We have heard Mr. Somnath Padhan, learned counsel for the
appellant   and   Mr.   Sourav   Roy,   learned   Deputy   AG   for   the
respondent State.
3. The   case   of   the   prosecution   was   that   on   31.05.2014,   the
Station House Officer (SHO for short) of Chakarbhata Police Station
received   a   secret   information   that   the   appellant   and   his   friend
Reena Das, were carrying  ganja  in the dickey of a car bearing
registration no.CG­04HA­4850 and were travelling from Raipur to
Pendra Road; that the SHO recorded this information in Rojnamcha
Sanha, prepared Mukhbir Suchana, forwarded the said information
to the higher officer, proceeded to 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 bags in the dickey of the car; that
after weighing the contraband and preparing Panchnama, the SHO
collected   samples   from   each   of   the   three   bags,   sent   them   to
Forensic Science Laboratory (‘FSL’ for short) and after receipt of the
Report, filed a charge­sheet against the appellant as well as his
friend Reena Das for an offence punishable under Section 20(b) of
the Act.
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4. The prosecution examined seven witnesses. Two independent
witnesses were examined as court witnesses CWs 1 and 2.  
5. By a judgment dated 10.05.2017, the Special Court convicted
the appellant for the offence under Section 20(b)(ii)(C) of the Act,
and   imposed  a   sentence  of   rigorous   imprisonment   of  10  years.
However, the co­accused Reena Das was acquitted by the Special
Court.
6. The State did not file any appeal against the acquittal of Reena
Das, who was A­2. But the appellant filed an appeal on the file of
the   High   Court   of   Chhattisgarh,   Bilaspur.   The   appeal   was
dismissed by a judgment dated 01.10.2019. Therefore, A­1 who has
suffered concurrent convictions has come up with the above appeal.
7. The   Special   Court,   for   coming   to   the   conclusion   that   the
appellant   was   guilty   of   the   offence,   relied   extensively   upon   the
testimony of Mr. N.L. Dhritlahre, Deputy Superintendent of Police,
who acted both as the informant and as the Investigating Officer
(‘I.O.’ for short) and who was examined as PW­7. The Special Court
found that PW­7 had followed the procedure prescribed in Sections
43 and 49 of the Act and that his testimony remained unshaken.
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8. Though PW­7 claimed that the search and the seizure was
conducted in the presence of two independent witnesses examined
as CW­1 and CW­2, these two witnesses claimed ignorance of the
entire   operation.   Therefore,   the   Special   Court   came   to   the
conclusion that the testimony of PW­7 was not corroborated by the
evidence of independent witnesses. 
9. However, the Special Court came to the conclusion that the
entries made by PW­7 and the documents prepared by him both
before   and   after   the   search   and   seizure,   corroborated   his   oral
testimony   and   that   therefore   the   guilt   of   the   appellant   stood
established beyond reasonable doubt, even without corroboration.
10. But,   interestingly,   the   Special   Court   acquitted   A­2   namely
Reena Das on the ground, (i) that though in the Daily Register of
Exhibit P­12 and the Memo of Information, the name of A­2 was
mentioned,   PW­7   did   not   mention   her   name   in   his   testimony;
(ii)  that the notice under Section 50 was not served on A­2; and
(iii) that there was no proof beyond doubt to show that the seized
contraband was under the possession and the knowledge of A­2.  
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11. As we have stated earlier, the State did not file an appeal
against the acquittal of A­2. But  the  High  Court held that the
evidence   of   PW­7   remained   unshaken   even   during   crossexamination and that there was no reason to disbelieve his version.
The   High   Court   also   held   that   the   Head   Constable   and   the
Constable examined as PWs 3 and 4 corroborated the statement of
PW­7 with regard to the compliance of the requirements of Sections
42 and 57 of the Act. Though an argument was raised before the
High Court on behalf of the appellant that the samples sent to FSL
were not part of the seized contraband, it was rejected by the High
Court on the basis of the cogent testimony of PW­7. This is how the
High Court confirmed the conviction of the appellant as well as the
sentence imposed upon him.
12. Assailing the concurrent judgments of the Special Court and
the High Court, it was contended by the learned counsel for the
appellant,  (i)  that the informant and the I.O. happened to be the
same person; (ii) that the independent witnesses namely CW­1 and
CW­2 did not support the case of the prosecution, thereby leaving
the testimony of PW­7 uncorroborated;  (iii) that when the appellant
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and the co­accused were alleged in the charge­sheet to be travelling
in the same car from which ganja was seized, the acquittal of one of
them and the conviction of the other, on the basis of the very same
testimony of PW­7 cannot be sustained; and (iv) that the principles
laid down in a series of judgments of this Court have not been
followed by the Special Court and the High Court. The learned
counsel   for   the   appellant   placed   reliance   specifically   upon   the
decisions of this Court in Ajmer Singh vs. State of Haryana1 and
Mohinder Singh  vs.  State of Punjab2
.
13. As regards the testimony of PW­7, on which the Special Court
and the High Court placed heavy reliance and complete faith, the
learned counsel for the appellant raised the following contentions:­
 There are several omissions in his evidence;
 He arrested both the accused and also charge­sheeted
them, but admitted that there was no search warrant. 
 He further stated that photograph of the vehicle was not
in the list of Final report and Crime Number was not mentioned in
photograph of car;
 He was silent about presence of CWs i.e. independent
witnesses and those independent witnesses pleaded ignorance;
1 (2010) 3 SCC 746
2 (2018) 11 SCC 570
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 Even property seizure memo was not signed by accused
and witnesses and there was no stamping. This is also admitted by
him;
 He admitted that he had not recorded the statement of
the actual owner of the vehicle, which is a fundamental flaw in the
investigation;
 No notice U/S 50 NDPS Act was sent to Reena Das (A­2).
Except in the FIR and Charge Sheet, name of Reena Das was not
mentioned anywhere i.e. consent letter, memo of consent, memo of
searching,   memo   of   seizure/recovery   of   contraband   substance,
memo of identification of materials, memo of physical verification of
weighing   machine,   memo   of   weighing   of   contraband   substance,
memo of sample weighing of intoxicated materials etc.; 
 But he denied in the cross examination, the suggestion
that lady was not seated in the vehicle; and
 Time mentioned varied from document to document.
14. The learned counsel for the appellant also raised an issue
about the ownership of the car and highlighted the fact that the
owner namely, Bhumika Patel (PW­4) was not even interrogated.
But we do not think the ownership of the car was of any material
significance.   Therefore,   we   are   not   dealing   with   the   same
elaborately.
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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
whose possession the substance is recovered, to explain how he
came into possession;
 That as held by this Court in Mukesh Singh  vs.  State
(Narcotic   Branch   of   Delhi)3
,   it   is   not   always   necessary   to
corroborate the testimony of police officials, through the testimony
of independent witnesses;
 That as held by this Court in  Dharampal   Singh  vs.
State  of  Punjab4
, lack of independent witness is not fatal to the
case of the prosecution;
 That by the same analogy it was held by this Court in
Rizwan  Khan  vs.  State of  Chhattisgarh5
,  that the independent
witnesses turning hostile, cannot be a ground for acquittal under
the NDPS Act;
 That   the   protection   under   Section   50   of   the   Act   is
available only to the search of the body of a person and not to the
search of a vehicle or place, as held by this Court in  State   of
Punjab  vs. Baljinder Singh and Ors.
6
;
3 (2020) 10 SCC 120
4 (2010) 9 SCC 608
5 (2020) 9 SCC 627
6 (2019) 10 SCC 473
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 That since the recovery was made in this case from the
boot   of   the   car,   Section   50   had   no   application   and   hence   the
acquittal of the co­accused was also of no consequence;
 That the question whether the informant can be I.O. is no
longer res integra in view of the decision of this Court in Mukesh
Singh (supra);
 That once possession is proved under Section 54, the
accused is presumed to be guilty of the offence, in view of the
presumption under Section 54 of the Act; and 
 That   therefore   the   concurrent   findings   of   the   Courts
below need no interference.
16. We have carefully considered the rival contentions. We have
also   perused   the   records   of   the   Special   Court   including   the
testimony of witnesses.
17. At the outset we would take note of 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
(supra),   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,
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as held in Dharampal Singh and Mukesh Singh (supra); (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  (supra); and  (iv)  that once it is
established that the contraband was recovered from the accused’s
possession, a presumption arises under Section 54.
18. 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
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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.
19. Let us see in the case on hand what PW­7 stated about the
manner in which the witnesses were roped in. The relevant portion
of the testimony (Chief Examination) of PW­7, where a reference is
made to independent witnesses, is extracted as follows:
“(5) I got the information on 31.05.2014 at 16.50 Hrs. from
informant that the one silver colour Hyundai Verna
Car having registration no.C.G.­04­HA­4850 is silver,
in   which,   Sanjeet   Kumar   Singh   @   Munna   Singh
resident of Kabir Nagar, Raipur and his lady friend
namely Reena  Das @ Manali Das resident  of Kabir
Nagar,   Raipur   have   left   towards   Pendra   road   from
Raipur carrying huge quantity of cannabis in the truck
(Dikki) of Car for the purpose of sale, who would go via
Pandidiha bypass Road.   I lodge the above report at
the serial no.1283 of Station Diary register maintained
at Police Station.  Today, I brought the Daily Register
with me.    The Serial No.1283 entered  in  the  Daily
Register   is   Exhibit   P­12   and   its   certified   copy   is
Exhibit P­12 “C: I prepared the memo (Panchnama) of
the   information   of   informant   in   the   presences   of
witnesses   Virender   Kumar   Sahu   and   Baldev   Singh
Rajput.  The memo (Panchnama) of the information of
informant is Exhibit P­13 and I had my signatures on
A to A parts.   I   served  notice   for   the  purpose   of
summoning to the witnesses.   The notice given to
the witness Sunil Maldhani which is Exhibit C­14,
where   my   signatures   on   B   to   B   parts   and   the
notice  sent  to  the  witness  Firturam  Banware  for
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appearing/presenting at the time of proceedings is
Exhibit C­1, on which, my signatures is on B to B
parts. 
xxx                               xxx                                xxx
(7) Thereafter, I made entry at serial no.1286 in the daily
register   maintained   at   Police   Station   about   the
departure   time   i.e.17.10   hrs.   along   with   constable
nos.444, 672 and woman constable no.981 for Bypass
Road   Tiwaripara   for   the   purpose   of   barricading   by
Government vehicle.   I also took the documents and
seal with me.  The in­charge namely A.S.I., Sharma of
Police Assistant Center, Sakri was informed and the
witnesses namely Katti Sunil Kalwani and Firturam
Banware   were   also   taken   for   the   purpose   of
proceedings and in this connection, I made entry at
the serial no.1286 in daily register, which is Exhibit P17 and the certified copy of the same is Exhibit P­17
“C”.
(8) I prepared the memo (Panchnama) under Section 50
N.D.P.S   Act   in   the   presences   of   witnesses   namely
Sunil   Maldhani   and   Firturam   Banjare,   which   is
Exhibit C­2 and on which, my signatures at C to C
parts.
(9) Contraband   substance   in   three   plastic   bags   was
recovered from the dickey of Car having registration
no.C.G. – 04­ H.A – 4850 in possession of Sanjeet
Kumar Singh, seizure is Exh C 5 where my signature
is at D to D Part.  When I see the bags kept in dickey
of the car by opening the stitches in presence of Sunil
Maldhani Firturam Banwane.”
20. In his cross­examination, PW­7 stated as follows:
“(22) Both   the   witnesses   belong   to  Chakarbhata.   I  know
previously to both witnesses. I have sent the notices to
both witnesses in their names.  It is correct to say that
I cannot recall today that through whom, the above
notice was sent. It is also correct to say that I had sent
the above notice at 17.10 Hrs. I cannot recall that at
what time, the above witnesses in Police Station. 
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          xxx                               xxx                                xxx
(24) The houses of witnesses namely Sunil Maldhani and
Firturam   is   situated   at   the   distance   about   one
Kilometer away from Police Station.  It is correct to say
that it takes the time to search for and reaching to
witnesses.  The witness was silent, when the question
asked that at what time the independent witnesses
were presented.     It   is incorrect   to  say that  on  the
memo of the information received from the informant, I
had  took   the   signatures   of   respective   signatures   of
witnesses after returning to Police Station from the
place of the occurrence of incident.
          xxx                               xxx                                xxx
(29) I   get   the   contraband   substances   identified   by   the
witnesses.     It   is   correct   to   say   that   I   have   not
mentioned that contraband substances identified by
the witnesses in memo of identification Exhibit C­7.
          xxx                               xxx                                xxx
(38) It is also incorrect to say that the witnesses used to
frequently visit at Police Station. Today, I cannot recall
that   on   the   date   of   occurrence   of   incident,   the
witnesses namely Sunil Maldhani and Firtu Banware
had visited to the Police Station in relation of their own
some dispute.  It is also incorrect to say that I get the
signatures on the documents of above both witnesses
at Police Station.”
21. Having   seen   what   PW­7   said   about   the   presence   of
independent   witnesses,   let   us   now   see   what   these   independent
witnesses had to say. The relevant portion of the testimony of Shri
Firuturam Banware examined as CW­1 reads as follows:
“1. I know  Sunil Malghani. I and Sunil Malghani both
were Counsellor of Bodri Panchayat. I do not know
accused persons present herein the Court. I am seeing
them today for the first time.
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2. I   was   not   called   by   Police   of   Police   station
Chakarbhata   in   relation   to   Mukhbir   information   of
Ganja in the year 2014 or at another time, I was never
called at Police­station, I never went to Pendidih by
pass road with Police. Police never stopped any car in
my presence, I had not  seen that  accused persons
present here in the court were sitting in any car, Police
never seized any Ganja from any car in my presence.
Police did not do any weighing proceedings of Ganja or
proceedings of taking sample in my presence.
3. In   the   year   2014   I   went   to   the   Police­station
Chakarbhata in relation to the dispute between some
Sindhis and at that time Police took my signature on
some   documents.   I   did   not   read   in   which   relation
those documents were and I was also not told about
the contents of documents because at that 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 B to B of Ex.P/9 bears my signature. Police did
not took my statement.
//Cross­examination  by  Shri  Kundan  Singh,  Public
Prosecutor for Prosecution//
4. I had studied up to Eighth Class. It is correct to say
that as I am Counsellor it is my duty to help Police.
Earlier I was Counsellor of Nagar Panchayat Bodri two
times for five years. It  is correct  to say that being
Counsellor I have to visit Police whenever I am called.
It is correct to say that during the investigation of
crime   Public   Representatives   are   called,   witness
himself states that once he was called. It is incorrect to
say that on 31.05.2014 at about 17.00 hours I was
called at the Police­station, witness himself states that
because there was dispute between Sindhis he went to
the Police­station. It is correct to say that at that day
Sunil Maghlani also went there with me. It is correct to
say that upon saying of someone document must not
be signed without reading it…
         xxx                               xxx                                xxx
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7. It is incorrect to say that Weighment Panchnama was
done in my presence. It is incorrect to say that Ganja
recovered from accused was weighed in my presence
and in the presence of Sunil Malghani and at that time
20 kilo 370 grams in one bag, 20kilogram in second
bag and 07 kilogram in third bag was found.”
22. The   relevant   portion   of   the   evidence   of   Shri   Sunil   Kumar
Malghani, examined as CW­2 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 of Bodri Nagar Panchayat. Two and half year
ago   I   and   Firturam   Banware   went   to   Police­station
Chakarbhata. We went there for compromise for the
dispute between our people. Police took our signature
on 4­5 documents. No proceedings were done by Police
in my presence. Police did not caught any articles from
the accused persons in my presence. Police did not
gave me any notice.
2.  Part A to A of notice under Section 160 of the Cr.P.C.
vide Ex.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 my signature.
//Cross­examination by Shri Kundan Singh, Public
Prosecutor for Prosecution//
3. It is correct to say that I and Firturam Banware went
to Police­station Chakarbhata in the evening at 5.00
hours of 31.05.2014.  It is incorrect to say that notice
was given to me by Police­station Chakarbhata to be
present   for   the   investigation   of   Ganja   case.   It   is
incorrect to that with Police I and Firturam Banware
went to Pendidih by pass road. 
4. It is incorrect to say that Car number C.G.04 H.A.
4850   which   was   in   possession   of   accused   Sanjeet
Kumar was stopped and searched and at that time
form the back side dickey of car psychotropic Ganja
was found inside three white color plastic bags and it's
Panchnama was done in my presence.”
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23. CWs 1 and 2 were cross­examined by the Additional Public
Prosecutor. A suggestion was put to both these witnesses that the
family   of   the   accused   persons   met   them   and   that   they   were
influenced. In this regard CW­1 denied the suggestion of the Public
Prosecutor in the following words:
“10. It   is   incorrect   to   say   that   family   of   accused
persons met me and because they gave me offer and in
that   greed   I   am   giving   false   statement.     Witness
himself states that he does not know family of accused
persons.   It is incorrect to say that today family of
accused persons came in the Court and met me.”
24. Similarly, CW­2 denied the suggestion of the Public Prosecutor
that he came under the influence of the family members of the
accused. The relevant portion reads as follows:­
“4. It   is   incorrect   to   say   that   family   of   accused
persons met me.  It is also incorrect to say that today I
am   giving   false   statement   because   of   influence   of
parents of accused persons.   It is true to say that
before signing the document one must read it.   It is
incorrect   to  say  that   proceedings   took  place   in  my
presence and for this reason I signed on documents.
//Cross­examination by Shri Kundan Singh, Public
Prosecutor for Prosecution//
5. It   is   correct   to   say   that   when   I   signed   on
documents   at   that   time   nothing   was   written   on
documents. It is correct to say that my signature was
taken on blank documents.   It is correct to say that
the documents on which my signature was taken were
not read over to me.”
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25. The   independent   witnesses   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 PW­7. 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,   run­of­the­mill   matter   where   independent
witnesses are won over and they had no explanation to offer about
their signatures in the Panchanama.  
26. The statement of these two independent witnesses assumes
significance in the light of certain other facts also. They are:­
 According   to   PW­7,   he   received   information   from   one
Mukhbir at 16:50 hrs. on 31.05.2014;
 PW­7   claims   that   upon   receipt   of   information,   he
prepared   Exhibit   P­5   and   completed   the   other   formalities.
Thereafter PW­7 sent notices to the independent witnesses at
17:10 hrs.;
17
 PW­7 further claims that he departed to the place of
incident at 17:10 hrs, from the Police Station and that the
distance between the place of incident and the Police Station is
approximately 7­8 Kms.;
 PW­7   stated   that   the   houses   of   the   independent
witnesses   Sunil   Kumar   Malghani   and   Firuturam   Banware
were located at a distance of approximately 1 Km from the
Police Station;
 Interestingly,   the   Learned   Special   Judge   records   in
Paragraph 24 of the deposition of PW­7 that when asked about
the time of arrival of the independent witnesses at the Police
Station, the witness (PW­7) remained silent;
 In   Paragraph   25   of   the   testimony   of   PW­7   (crossexamination) it is recorded that PW­7 reached the place of
incident in 5­7 minutes approximately. This is despite the fact
that even according to PW­7, the distance between the Police
Station and the place of incident was approximately 7­8 Kms.;
and
 PW­7 further claimed that his team waited at the place of
incident for 40 minutes, after which the accused reached the
place of incident.
27. Therefore, if the story advanced by PW­7 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
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17:10 hrs.; (iii) he left the Police Station at 17:10 hrs., and reached
the place of incident in 5­7 minutes; and (iv) his team waited at the
place of incident for 40 minutes for the accused to arrive.
28. But in the above timeline, PW­7 is completely silent about the
time when the witnesses reached the Police Station or the place of
incident.
29. Exhibit   C­1   is   the   notice   purportedly   served   on   the
independent witness Firuturam Banware. This notice directs the
said witness to appear at 17:10 hrs. at the place indicated therein
namely, “Saida Tiwari Para By­pass Main Road”. Even according to
PW­7 this notice to the witness was sent only at 17:10 hrs., to be
served   at   the   residence   of   the   witness   located   1   Km.   away.
Therefore, there was no way that PW­7 could have expected the
witness to be available at the place of incident at 17:10 hrs.
30. Exhibit C­2 is the notice served on the appellant herein (A­1)
under Section 50 of the Act. The time shown therein is 18:00 hrs.
This notice requires the appellant to indicate whether he would like
to be searched in the presence of Magistrate or Gazetted Officer. It
is also stated in the notice that the contents thereof were read over
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in the presence of witnesses. Exhibit C­3 is the consent Panchnama
of the appellant agreeing to be searched by the police officer. This
Panchnama contains the names of Sunil Malghani and Firuturam
Banware (CWs 1 and 2). Even the search Panchnama of the accused
marked as Exhibit C­4 refers to the presence of CWs 1 and 2 at the
time of search.
31. Therefore, it is clear that the I.O. examined as PW­7 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.  
32. In such circumstances, a serious doubt is cast on the very
search and  seizure allegedly made by PW­7. 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.
33. Right from the beginning, the co­accused Reena Das (A­2) was
implicated at every stage. Admittedly, the information received by
PW­7 at 16:50 hrs. on 31.05.2014 contained a reference to the
appellant   as   well   as   the   co­accused   Reena   Das.   But   for   some
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strange reason, PW­7 chose to serve a notice under Section 50 of
the Act only on the appellant and not on the co­accused.  PW­7 also
omitted   deliberately   or   otherwise,   to   record,  (i)  the   consent
Panchnama  of co­accused;  (ii)  the search  Panchnama  of the coaccused; and  (iii)  the recovery  Panchnama  in relation to the coaccused. This led to the Special Court acquitting the co­accused. It
is quite strange that, (i) the information received by PW­7, (ii) the
FIR; and (iii) the charge­sheet implicated the co­accused, but  the
prosecution accepted the finding of the Special Court that there
could have been no recovery from the co­accused despite the fact
that she was also travelling in the same car.
33­A. 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, in our considered opinion will also be entitled to the
same benefit as given by the Special Court to the co­accused.
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34. In view of the above, we are of the considered view that the
appellant is also entitled to the benefit of doubt. Therefore, the
appeal is allowed. 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. No
costs.
......................................J.
(Indira Banerjee)
.......................................J.
(V. Ramasubramanian)
New Delhi
August  30, 2022
    
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