BY TIOL News Service

NEW DELHI, NOV 05, 2015: CHALLENGE in this appeal is the judgment dated 29.05.2003 passed by the High Court of Punjab and Haryana, wherein the High Court reversed the judgment of acquittal passed by the 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 Rs.1,50,000/- and in default to undergo rigorous imprisonment for six months.

The case of the prosecution is that on 16/17.09.1990 mid night at about 12.15 a.m., Chander Singh-SI alongwith Ram Singh-ASI and team of police personnel with Government Jeep and a private jeep were holding Nakabandi on both sides of Kacha path leading to village Kingre from G.T. Road for detection of the contraband. At that time, a tractor with trolley was heading towards the road from the village and the same was stopped and the appellant was apprehended and he was inquired about the gunny bags of poppy husk lying in 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 quintals and twenty kilograms of poppy husk was recovered. From each bag, sample of hundred grams was taken out and parcels were made and remaining poppy husk lying in the gunny bags were sealed with seal ‘CS' and were seized and taken into police possession alongwith the said tractor with its trolley. 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.

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.

Aggrieved, the appellant has filed this appeal before the Supreme Court.

The Supreme Court observed,

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 success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.

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.

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 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 case nor does it affect the credibility of the prosecution version.

In his statement under Section 313 Cr.P.C., no plea has been taken that the appellant was not in conscious possession of the contraband. The appellant has only pleaded that he being falsely implicated and that a false case has been foisted against him in the police station. In his statement under Section 313 Cr.P.C., the appellant had not stated anything as to why would the police foist the false case against the appellant. It 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.

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 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 circumstances of the case, the sentence of imprisonment imposed on the appellant is reduced from twelve years to ten years.

The conviction of the appellant under Section 15 of the NDPS Act is confirmed and the sentence of imprisonment imposed on the appellant is reduced to ten years and the appeal is partly allowed.

The appellant is on bail and his bail bonds are cancelled. The appellant be taken into custody forthwith to serve the remaining part of the sentence.

(See 2015-TIOL-266-SC-NDPS)