BALDEV SINGHversusSTATE OF HARYANA

                    (2015] 12 S.C.R. 969


                      BALDEV SINGH                              A
                           v.
                   STATE OF HARYANA
             (Criminal Appeal No. 167of2015)
                                                                B
                     November 04, 2015
 [JAGDISH SINGH KHEHAR AND R. BANUMATHI, JJ]
     Narcotic Drugs and Psychotropic Substances Act, 1985
- s. 15 - Punishment for contravention in relation to poppy c
straw-Appellant-tractor driver found in possession of poppy
husk - Order of acquittal by Sessions Judge since no other
witness except ASl-PW-1 was examined and his evidence
was not trustworthy - However, High Court set aside the
acquittal and convicted the appellant u/s. 15 and sentenced 0
to rigorous imprisonment for twelve years- On appeal, held: ·
Evidence of police witnesses cannot be discarded merely
on the ground that it is not supported by independent evidence
or they belong to police force and are interested in the
investigation - Mere fact that they are police officials does E
not by itself give rise to any doubt about their creditworthiness
- Testimony of PW-1 and evidence on record amply
establishes physical possession of the contraband by the
appellant- SI who investigated the case was not examined
by the prosecution in spite of several opportunities - Since F
PW-1 was a part of the police party and PW-1 had signed in
all recovery memos, non-examination of SI could not have
caused any prejudice to the accused nor does it affect the
credib'ility of the prosecution version - From the evidence
                                                                  Q
led by prosecution, its 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 H
                             969
970         SUPREME COURT REPORTS                [2015] 12 S.C.R.


 A    appellant uls. 15 - However, the sentence of imprisonment
      reduced from twelve years to ten years since appellant
      suffered a protracted proceeding of about twenty five years.

       Gyan Singh and Ors. v. State of U.P 1995 Supp (4) SCC
 B 658; Girja Prasad (dead) by LRs. vs. State ofM.P. AIR 2007
   SCW 5589:(2007) 7 SCC 625; Abdul Rashid Ibrahim
   Mansuri vs. State of Gujarat AIR 2000 SC 821 - referred to.

                        Case Law Reference
 c      1995 Supp (4) SCC 658           Referred to     Para 9

        (2007) 1 sec 625                Referred to     Para 11

        AIR 2000 SC 821                 Referred to     Para 13
 D
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 167 of2015.

     From the Judgment and Order dated 29.05.2003 of the High
 E Court of Punjab & Haryana at Chandigarh in Criminal Appeal
   No. 39-DBA of 1995.

        Dr.Anmol Rattan Sidhu, Sr.Adv., Pratham Sethi,Amandeep
      Mehra, Daya Krishan Sharma, Advs., with him, for Appellant.
                                    '
 F      Amit Kumar, AAG, Dr. Monika Gusain, Adv., with him, for
      Respondent.

        The Judgment of the Court was delivered by

 G       R. BANUMATHI, J. 1. Challenge in this appeal is the
  · judgment dated 29.05.2003 passed by the High Court of
    Punjab and Haryana in Criminal Appeal No.39-DBA of 1995,
    wherein the High Court reversed the judgment of acquittal
    passed by the Sessions Judge, Sirsa and convicted the
 H appellant under Section 15 of the Narcotic Drugs and
          BALDEV SINGH v. STATE OF HARYANA                          971
                  [R. BANUMATHI, J.]

Psychotropic Substances Act 1985 (NDPSAct) on account of A
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.
                                                                    B
    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 Singh-AS I and team of police personnel with
Government Jeep No. HNN 3108 and a private jeep were
holding Nakabandi on both sides of Kacha path leading to            C
village Kingre from G.T. Road for detection of the contraband.
At that time, a tractor No.RJV 6299 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
                                                                    D
the gunny bags of poppy husk lying in the trolley. The appellant
was served with a written notice to the 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-   E
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 quintals and twenty          F
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. On the      G
basis of rukka, case bearing No.234 dated 17.09.1990 under
Sections 15, 16, 61and85 of the NDPSActwas 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           H
972        SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A     Sections 15 and 16 of the NDPS Act.

       3. To substantiate the charges against the appellant, the
   prosecution examined only one witness Ram Singh-ASl-PW-
   1, affidavits of MHC Mohinder Singh and Constable Om
 B 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
 C 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 NDPSAct and sentenced him to undergo
 D
   rigorous imprisonment and imposed fine as aforesaid.
   Aggrieved, the appellant has filed the instant appeal.

        4. Learned Senior Counsel for the appellant Mr. Anmol
   · Rattan Sidhu submitted that Chander Singh-SI was an
 E 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
 F 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 bearing No.235 dated 17 .09.1990 at P.S.
     Sadar at 5.30 a.m. in which one Bhoop Singh was arrested
 G while carrying opium which renders the presence of Ram
     Singh-AS! in the place of recovery highly doubtful which aspect
     was not properly appreciated by the High Court and the High
     Court erred in convicting the appellant on the sole testimony
     of Ram Singh-AS!.
 H
         5. Per contra, learned counsel for the respondent Mr. Amit
         BALDEV SINGH v. STATE OF HARYANA                     973
                 [R. BANUMATHI, J.]

Kumar, Additional Advocate General submitted that the A
recovery was at odd hours in night, 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 8
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.
                                                               c
  6. We have carefully considered the rival contention
advanced by the parties and perused the impugned judgment
and material on record.

   7. Case of prosecution hinges on the testimony of sole D
witness Ram Singh-PW-1. Undisputedly, Ram Singh-PW-1
was the member of the Nakabandi party headed by Chander
Singh-SI on the night of 16/17.09.1990. Admittedly, Ram Singh
signed all the documents and also witness to the recovery
memo. Even after searching cross-examination, evidence of E
Ram Singh-PW-1 remains unshaken.

    8. On the midnight of 16/17.09.1990, 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 F
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 G
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 H
witnesses inspires confidence.
974         SUPREME COURT REPORTS                    [2015] 12 S.C.R.


A         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
8     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
c     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 be
  discarded merely on the ground that they belong to police force
0
  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 out9o_me
  of the result of the case needs to be carefully scrutinized and
E independently appreciated. Mere fact that they are police
  officials does not by itself give rise to any doubt about their
  creditworthiness.

       11. Observing that no infirmity is attached to the testimony
F .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 sew 5589 (2007) 7 sec 625, it was held as under:-

               "[24] In our judgment, the above proposition does not
G
           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 give.n case, a Court of Law may not base conviction
H          solely on the evidence of Complainant or a Police Official
           but it is not the law that police witnesses should not be
   BALDEV SINGH v. STATE OF HARYANA                           975
           [R. BANUMATHI, J.]

relied upon and their evidence cannot be accepted A
unless it is corroborated in material particulars by other
independent evidence. The presumption that every
person acts honestly applies as much in favour of a Police
Official as any other person. No infirmity attaches to the
testimony of Police Officials merely because they belong 8
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 c
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
                                                          D
the point. Wf!may, however, state that before more than
half-a-century, in the leading case of Aher Raja Khima v.
State of Saurashtra, AIR 1956 SC 217, Venkatarama
Ayyar, J. stated:

   "The presumption that a person acts honestly applies E
   as much in favour of a police officer as of other
   persons, and it is not judicial approach to distrust and·
   suspect him without good grounds therefor. Such an
   attitude could do neither credit to the magistracy nor F
   good to the public. It can only run down the prestige
   of the police administration". (emphasis supplied) ·

[~6] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing
with a similar question, Dr. AS. Anand, J. (as His Lordship
then was) stated:                                             G

   "Where the evtdence 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 H
976      SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A           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
B 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
C 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 NDPSAct reads as under:-
D         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
 E
         that he had no such mental state with respect to the act
         charged as an offence in that prosecution.

         Explanation . -ln this section "culpable mental state"
         includes intention, motive knowledge of a fact and belief
 F       in, or reason to believe, a fact.

         (2) For the purpose of this section, a fact is said to be
         proved only when the court believes it to exist bey~md a
         reasonable doubt and not merely when its existence is
G        established by a preponderance of probability.

       Explanation to sub-section (1) of Section 35 expanding
  the meaning of 'culpable mental state' provides that 'culpable
  mental state' includes intention, knowledge of a fact and
H believing or reason to believe a fact. Sub-section (2) of
           BALDEV SINGH v. STATE OF HARYANA                       977
                   [R. BANUMATHI, J.]

  Section 35 provides that for the purpose of Section 35, a fact A
  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 B
. 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 c
  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 D
  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.
                                                                   E
      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 NDPSActthe burden F
 of proof 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 G
 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 H
978         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A           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
B
            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
c
            bags, it would be a miscarriage of criminal justice to
            convict him of the offence keeping such strong doubt
            undispelled. Even so, it is for the accused to dispel any
            doubt in that regard.
D
            22. The burden of proof cast on the accused under
            Section 35 can be discharged through different modes.
            One is that he can rely on the materials available in the
            prosecution evidence. Next is. in addition to that, he can
 E          elicit answers from prosecution witnesses through cross-
            examination to dispel any such doubt. 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
 F          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
 G          own when he is called upon to enter on his
            defence."(Emphasis added)

           14. In the light of the above principles, what is to be
       examined in the present case is whether the accused-appellant
 1-1   has been able to discharge the burden of proof cast upon him
         BALDEV SINGH v. STATE OF HARYANA                         979
                 [R. BANUMATHI, J.]

under Section 35 of the NDPSAct. The appellant has raised A
doubts about the prosecution case mainly on two aspects viz.;
(i) evidence of sole witness Ram Singh-AS I is not trustworthy
and (ii) non-examination of Chander Singh-SI who prepared
the rukka.
                                                                   B
     15. To assail the prosecution case, it was contended that
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 C
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, ren_ders the presence of Ram
                                                                    0
Singh-AS! in the instant case highly doubtful. The learned
Sessions Judge accepted the above submission of the
appellant to hold that evidence of Ram Singh-AS I does not
inspire confidence. As observed by the High Court, the learned
Sessions Judge overlooked that there is no evidence as to E
the distance between the places of recovery in both the cases.
As observed by the High Court, it has come on record that in
both the Fl Rs the place of occurrence has been stated as "in
the area of Village King re, at a distance of 18 K. M. towards
the East, Deh.No.33". It appears from the above entry in the F
FIR, that the place of occurrence was the same for both the
Fl Rs 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 G
is incorrect and that defence has not been able to make any
dent in the testimony of Ram Singh-AS I to discard his evidence
as untrustworthy. We find no reason to take a different view.

    16. Contention atthe hands cf the learned Senior Counsel       H
980        SUPREME COURT REPORTS                 [2015] 12 S.C.R.


 I\for the appellant is that non-examination of Chander S[ngh-SI
   who prepared rukka and who investigated the case raises
   SE~rious 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
 B 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
 c 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, non-examination of Chander Singh-SI could
 0 not have caused any prejudice to the accused in this case nor
   does it affect the credibility of the prosecution version.

        17. In his statement under Section 313 Cr.P.C., no plea
   has been taken that the appellant was not in conscious
 E 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
 F 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
 G 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 against him and stated that
 H he has been falsely implicated and to substantiate his defence,
             SALOEV SINGH v. STATE OF HARYANA                        981
                     [R. SANUMATHI, J.]

the appellant adduced two documents Exs.01 and 02.· Ex.01 A
is a certified copy of the FIR No.235 dated 17.09.1990 under
S~ctions 17 and 18 of the NOPS Act relating to case against
Shoop Singh and Ex.02 is a copy of the judgment acquitting
the said Shoop Singh. Of course, case against Shoop Singh
originated from FIR No.235 dated 17 .09.1990 registered at 8
5.30 a.m. ended in acquittal but acquittal of Shoop Singh in
the said case does not render the prosecution case against
the appellant-Saldev Singh doubtful.

     19., From the evidence led by the prosecution, it has been C
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
                                                                 D
the acquittal and convicted the appellant under Section 15 of
the NOPS 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 E
from twelve years to ten years.

     20. The conviction of the appellant under Section 15 of
the NOPSAct is confirmed and the sentence of imprisonment
imposed on the appellant is reduced to ten years and the F
appeal is partly al.lowed. 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.
Nidhi Jain                                  Appeal partly allowed.
                                                                     G