MAHIMAN SINGHversusSTATE OF UTTARAKHAND

                        [2016] 3 S.C.R. 173



                       MAHIMAN SINGH                                  A
                                v.
                  STATE OF UTTARAKHAND
                 (Criminal Appeal No. 957 of2015)
                          JUNE 29, 2016                               B

[ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.]
     Narcotic Drugs and Psychotropic Substances Act, 1985 - ss.
20, 42, 43 and 50 - Search and recovery of contraband goods
from the appellant - Conviction and sentence u/s.20 by the courts     c
below - On appeal, held: Courts below rightly held that the
prosecution able to prove their case against the appellant beyond
reasonable doubt - Evidence adduced by the prosecution sufficient
to warrant the appellant's conviction - Requirements of ss. 42, 43
and 50, complied with at the time of search made from the appellant
- Search made in public place, in the presence of gazetted officer    D
and done after giving an offer to the appellant as required under
the Act; and the quantity of the contraband recovered from the
appellant commercial in nature - Also affidavit relied upon by
appellant of M not proved in evidence in as much as M neither
examined nor cross-examined - Thus, the conviction by courts below    E
upheld.

     Witness - Non-examination of - Effect - Held: On facts,
evidence adduced by the prosecution was found sufficient to warrant
the conviction - Jn that case, non-examination of one or two
witnesses though cited initially would not adversely affect the       F
prosecution case in any manner - Thus, the conviction could be
sustained on the evidence adduced.

     Evidence - Appreciation of, by Supreme Court again in the
appeal - Held: Courts below concurrently recorded a finding against
the appellant after appreciating the evidence as also absence of      G
any kind of extreme perversity and arbitrariness in the findings of
the High Court - Thus, such exercise cannot be undertaken at this
stage.

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                                173
174           SUPREME COURT REPORTS                      [2016] 3 S.C.R.


A         Dismissing the appeal, the Court
           HELD: 1.1 The two courts below rightly held that the
      prosecution was able to prove their case against the appellant
      beyond reasonable doubt and that the evidence adduced by the
      prosecution which indisputably remained un-rebutted, was,
B     sufficient to warrant the appellant's conviction. It was also held
      that all the requirements of relevant ss. 42, 43 and 50 of the
      Narcotic Drugs and Psychotropic Substances Act, 1985, were
      complied with at the time of search made from the appellant
      thereby leaving no infirmity of any nature in their compliance
      including the procedure prescribed therein for making searches
c     etc. The prosecution proved with the aid of evidence that the
      search was made in public place. It has also come in evidence
      that it was carried out in the presence of gazetted officer and was
      done after giving an offer to the appellant as required under the
      _NDPS Act; and that quantity of the contraband recovered from
D     the appellant was commercial in nature as prescribed in the
      Schedule to the NDPS Act. [Paras 13, 14] (178-C-E]
           1.2 The appellant failed to adduce any evidence in defence
      except to record his statement in Section 313 proceedings taking
      therein a plea of denial. The affidavit relied upon by the appellant
E     of one M was not proved in evidence in as much as M was neither
      examined nor cross-examined. The two courts below rightly di.d
      not consider such affidavit as evidence, which was of no use and
      could not be construed as piece of evidence for deciding the rights
      of the parties. [Paras 15, 16] [178-F-G]

F          1.3 If the evidence adduced by the prosecution was found
      sufficient to warrant the conviction then it was not necessary for
      the prosecution to examine all the witness cited by them. It is for
      the prosecution to decide as to how many witnesses they consider
      it proper to examine to prove their case against the accused and
      whether their evidence would be sufficient to warrant the
G     conviction of the accused. Thereafter, it is for the Court to assess
      and appreciate the evidence adduced to see as to whether it is
      sufficient to sustain conviction with the aid of such evidence or
      not. It is found that the witnesses examined by the prosecution
      were able to prove the prosecution case beyond reasonable doubt
H     and hence, even if one or two witnesses though cited initially
       MAHIMAN SINGH v. STATE OF UTTARAKHAND                              175


were later given up by the prosecution, the same did not adversely        A
affect the prosecution case in any manner. Thus, the conviction
could be sustained on the evidence adduced and was rightly held
to sustain in this case. [Paras 18, 19] [179.A-C]
     1.4 The exercise of appreciating the evidence and then
record a finding of acquittal by drawing inferences suggested              B
cannot be done again in this appeal. It could .be d()nein the trial
court and then in appeal before the High Court and was in fact
done by two courts but not in this appeal. It is more so when both
the courts have concurrently recorded a finding against the
appellant after appreciating the evidence. In the absence of any
kind of extreme perversity and arbitrariness noticed by this Court         c
in the findings of the High Court, such exercise cannot be
undertaken at this stage. [Para 21) [179-E-F)             ·
      State of Punjab vs. Baldev Singh 1999 (3) SCR 977
      :(1999) 6 SCC 172; Sukhdev Singh vs. State of Haryana
      2012 (11) SCR 964 : (2013) 2 SCC 212 - distinguished.                D
                     Case Law Reference
     1999 (3) SCR 977           distinguished            Para22
     2012 (11) SCR 964          distinguished            Para 22
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                  E
957 of201 S.
    From the Judgment and Order dated 22.07.2013 of the High Court
ofUttrakhand at Nanital in Criminal Appeal No. 311 of2002.
     Mahabir Singh, Sr. Adv., Siddharth Jain, T. N. Durga Prasad, S. R.    F
Setia, Advs. for the Appellant.
     Rahul Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi Satyapriya
Satyam, Advs. for the Respondent.
     The Judgment of the Court was delivered by
                                                                           G
      ABBAY MANOHAR SAPRE, J. 1. This appeal is filed against
the final judgment and order dated 22.07.2013 passed by the High Court
ofUttrakhand at Nainital in Criminal Appeal No. 311 of2002 whereby
the High Court dismissed the appeal filed by the appellant herein and
affirmed the judgment and order dated 27.11.2002 passed by the Special
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176            SUPREME COURT REPORTS                          [2016) 3 S.C.R.


A     Judge, Pithoragarh in Sessions Trial No. 17 of 1996 convicting the
      appellant herein under Section 20 of the Narcotic Drugs and Psychotropic
      Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and
      sentenced him to undergo rigorous im.Prisonment for ten years with a
      fine of Rs. One lakh, in default, to undergo further simple imprisonment
      for three_ years.
B
           2. Brief facts:
            On an information received on 09.07.1996 at about 10.00 a.m. in
      the morning that in Jeep No. UP 03-1113 going from Dharchula to
      Pithoragarh, a boy is carrying Charas in a bag, the police team went at
c     the Gauripul check post and at about 11.00 a.m. the said Jeep arrived at
      the check post Gauripul, it was stopped. When the jeep was checked, it
      was found that one boy was sitting in its middle seat with a bag on his
      lap. On being asked as to what was in his bag, he became nervous. On
      suspicion, the bag was lifted and the same felt to contain heavy materials
      and on smelling gave foul smell ofCharas. When it became certain that
D     this was certainly contraband, the name and address of the boy was
      asked and he told that his name was Mahiman Singh, resident ofGarbyal
      Khera, P.S. Dharchula, Dist. Pithoragarh. Thereafter he was asked as
      to which gazetted officer or of which magistrate presence, he wanted
      search of his bag. On being asked, he apologized. Immediately, he was
E     taken to the office of S.D.M. Dharchula along with companion police
      staff in official jeep where it was found that the S.D.M. and Tehsildar
      were not present there. Thereafter he was taken to Nayab Tehsildar
      and in the presence of Shri Bansi Lal Rana, Magistrate, the search was
      made and inside the said bag charas of 2 kg. and 100 gm. was found.
      The authorities then took 100 gm. Charas for its examination in the
F     Laboratory and after taking the sample, it was sealed and the remaining
      Charas was kept in light green colour polythene bag. The bag was then
       sealed. Informing the accused of the offence which he has committed,
      he was then taken into custody.
           3. On the basis of the recovery, at 4.00 p.m. a FIR was registered
G     against the appellant-accused at the P.S. Jauljibi under Section 20 of the
      N-DPS Act. The case was committed to the Court of Special Judge,
      Pithoragarh under Sessions Trial No. I 7 of I 996.
           4. After examination of witnesses and recording of the statements,
      the Specia!Judge, by order dated 27.l I .2002, found the appellant-accused
H     guilty of the offence punishable under Section 20 of the NDPS Act and
       MAHIMAN SINGH v. STATE OF UTTARAKHAND                                 177
             [ABHAY MANOHAR SAPRE, J.]

sentenced him to undergo imprisonment for ten years with labour and          A
fine of Rs. One lakh, in default to pay fine, to undergo further simple
imprisonment for three years.
     5. Aggrieved by the order of the conviction and sentence passed
by the Trial Court, the appellant filed an appeal being Criminal Appeal
No. 311 of 2002 before the High Court.                                       B
     6. The High Court, by impugned judgment/order dated 22.07.2013
dismissed the appeal and affirmed the order of conviction and sentence
passed by the Trial Court.
      7. Aggrieyed by the said judgment/order, the appellant has filed
this appeal by way of special before this Court.                             c
     8. Heard Mr. Mahabir Singh, learned senior counsel for the
appellant and Mr. Rahul Kaushik, learned counsel for the respondent-
State.
     9. Mr. Mahabir Singh, learned Senior counsel for the                    D
appellant( accused) while assailing the legality and correctness of the
impugned order contended that both the Courts below erred in convicting
the appellant for the offence punishable under Section 20 of the NDPS
Act. It was his submission that Firstly, there was no evidence to sustain
the conviction; Secondly, the evidence adduced by the prosecution was
also not sufficient to warrant the appellant's conviction; Thirdly,           E
compliance ofrequirements of Sections 42, 43 read with Section 50 of
the NDPS Act was also not done as explained by this Court in several
decided cases and, therefore, the appellant's conviction is rendered bad
in law. It was also urged that since the statement of accused recorded
in Section 313 proceedings coupled with the affidavit of one Maan Singh
                                                                              F
(at page 30 of Vol. II of appeal paper book marked as Annexure-A/3)
was neither taken into consideration and much less appreciated and,
therefore, the appellant's conviction is rendered bad in law.
      I 0. Learned counsel elaborated his submissions by referring to the
evidence and contended that ifthe issues urged by him are examined in
                                                                              G
its proper perspective keeping in view the evidence then the appellant's
conviction becomes unsustainable and deserves to be set aside.
      11. In reply, learned counsel for the respondent supported the
impugned judgment and contended that no case is made out to interfere
in the impugned judgment. It was his submission that Firstly, the evidence
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178            SUPREME COURT REPORTS                           [2016] 3 S.C.R.


A     adduced by the prosecution is sufficient to warrant the appellant's
      conviction and secondly, the requirements of Sections 42, 43 read with
      50 of the NDPS Act have been complied with in letter and spirit and
      lastly, since the deponent of an affidavit was not examined as witness,
      no reliance can be placed on such self-speaking affidavit.
B           12. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we find no merit in this appeal.
            13. In our considered opiniQn, two Courts below rightly held that
      the prosecution was able to prove their case against the appellant beyond
      reasonable doubt and that the evidence adduced by the prosecution was
c     sufficient to warrant the appellant's conviction. It was also held that all
      the requirements ofrelevant Sections, which had application to the case,
      were complied with at the time of search made from the appellantthereby
      leaving no infirmity of any nature in their compliance including the
      procedure prescribed therein for making searches etc.

D           14. We find from the record of the case that the prosecution proved
      with the aid of evidence that the search was made in public place. It has
      also come in evidence that it was carried out in the presence of gazetted
      officer and was done after giving an offer to the appellant as required
      under the NDPS Act. It has also come in evidence that quai:itity of the
      contraband recovered from the appellant was commercial in nature as
E     prescribed in the Schedule to the NDPS Act.
            15. It is also not in dispute that the appellant failed to adduce any
      evidence in defence except to record his statement in Section 313
      proceedings taking therein a plea of denial. It is also not in dispute that
      the affidavit relied upon by the appellant of one Maan Singh (Annexure-
 F    N3) was not proved in evidence in as much as Maan Singh was neither
      examined nor cross-examined.
            16. In these circumstances, in our view, the two Courts below rightly
      did not consider such affidavit as evidence, which was of no use and
      could not be construed as piece of evidence for deciding the rights of the
G     parties.
             17. One of the submissions of the learned counsel forthe appellant
      was that one witness by name - Pradhan though named in the record
      was not examined by the prosecution and, therefore, his non-examination
      is fatal to the prosecution case and has rendered the appellant's conviction
H     bad in law. The submission has no merit.
       MAHIMAN SINGH v. STATE OF UTTARAKHAND                                  179
             [ABHAY MANOHAR SAPRE, J.]

      18. In our opinion, ifthe evidence adduced by the prosecution was       A
found sufficient to warrant the conviction then it was not necessary for
the prosecution to examine all the witness cited by them. It is for the
prosecution to decide as to how many witnesses they consider it proper
to examine to prove their case against the accused and whether their
evidence would be sufficient to warrant the conviction of the accused.
                                                                              B
Thereafter it is for the Court to assess and appreciate the evidence
adduced to see as to whether it is sufficient to sustain conviction with
the aid of such evidence or not.
      19. In this case, we find that the witnesses examined by the
prosecution were able to prove the prosecution case beyond reasonable
doubt and hence even if one or two witnesses though cited initially were      c
later given up by the prosecution, the same did not adversely affect the
prosecution case in any manner. In other words, the conviction could be
sustained on the evidence adduced and was rightly held to sustain in this
case.
     20. Learned counsel for the appellant then read out almost entire        D
oral evidence of all the witnesses examined by the prosecution and
contended by making sincere attempt that this Court should appreciate
the evidence and then record a finding of acquittal by drawing inferences
suggested by him.
     21. We do not think that we can do this exercise again in this appeal.    E
It could be done in the Trial Court and then in appeal before the High
Court and was in fact done by two Courts but not in this appeal. It is
more so when both the Courts have concurrently recorded a finding
against the appellant after appreciating the evidence. In the absence of
any kind of extreme perversity and arbitrariness noticed by this Court in      F
the findings of the High Court, we are afraid we can undertake such
exercise at this stage.
     22. Learned counsel forthe appellant, however, placed reliance on
the decisions of this Court in State of Pun.jab vs. Baldev Singh, ( 1999)
6 SCC 172 and Sukhdcv Singh vs. State of Haryana, (2013) 2 SCC                 G
212. We have perused these decisions. In our opinion, there can be no
quarrel with the proposition oflaw laid down in these decisions. However,
we are of the view that these decisions are distinguishable on facts and
hence are of no help to the appellant.
     23. We are, therefore, unable to appreciate any of the submissions
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180                SUPREME COURT REPORTS                       [2016] 3 S.C.R.



A     of the learned counsel for the appellant though urged with ability. Indeed,
      in the light of evidence adduced by the prosecution, which indisputably
      remained un-rebutted, the two Courts below were justified in placing
      reliance on such evidence for recording the finding of conviction against
      the appellant. We concur with these findings and uphold the conviction.
B         24. In view of foregoing discussion, we find no merit in this appeal,
      which fails and is accordingly dismissed.               ·

      Nidhi Jain                                                Appeal dismissed.