MAKHAN SINGHversusSTATE OF HARYANA

                     [2015] 5 S.C.R. 789


                       MAKHAN SINGH                                A
                            v.
                    STATE OF HARYANA
              (Criminal Appeal No. 682of2015)
                                                                   B
                       APRIL 21, 2015

         [T.S. THAKUR AND R. BANUMATHI, JJ.]

     Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 15 - Recovery of contraband from the vehicle driven by C
the accused- Conviction by courts below- On appeal, held:
The independent witnesses have not supported the
prosecution case and recovery of the contraband not
satisfactorily proved- The conviction solely based on official
witnesses cannot be sustained - Accused liable to be D
acquitted.

     s. 50- Scope of- Conviction u/s. 15 of the NDPS Act..,.
Reliance on compliance of s.50 - Held: Mere compliance
with s. 50 by itself would not be sufficient to establish the guilt E
of the accused - s. 50 comes into play only in the case of
personal search of the accused - In the present case s. 50
was not applicable as the recovery was not from the person
of the accused but from the vehicle driven by him.
                                                                    F
     Evidence:

    Official witnesses- Evidentiary value - Held: Conviction
can be based solely on the testimony of official witnesses,
only if evidence of such witnesses inspire confidence and G
not by overlooking evidence of independent witnesses.

    Proof - Standard of - Held: The more stringent the
punishment is, the more heavy is the burden on the
prosecution - In the cases of NDPS Act, the punishment is          H
                              789
790         SUPREME COURT REPORTS                [2015] 5 S.C.R.

A severe, hence strict proof is required for proving the search,
      seizure and the recovery- Narcotic Drugs and Psychotropic
      Substances Act, 1985 - Criminal Jurisprudence.

          Allowing the appeal, the Court
B
           HELD: 1.1. For recording the conviction, the courts
      below mainly relied on the testimony of official witnesses
      and found them sufficiently strengthening the recovery
      of the possession from the appellant. The manner in
C     which the alleged recovery has been made, does not
      inspire confidence and undue credence has been given
      to the testimony of official witnesses, who are generally
      interested in securing the conviction. In peculiar
      circumstances of the case, it may not be possible to find
o     out independent witnesses at all places at all times.
      Independent witnesses who live in the same village or
      nearby villages of the accused are at times afraid to come
      and depose in favour of the prosecution. Though it is
      well-settled that a conviction can be based solely on the
E     testimony of official witnesses, condition precedent is
      that the evidence of such official witnesses must inspire
      confidence. In the present case, it is not as if independent
      witnesses were not available. Independent witnesses
      PW1 and another independent witness examined as
 F    DW2 has spoken in one voice that the accused person
      was taken from his residence. In such circumstances,
      the High Court ought not to have overlooked the
      testimony of independent witnesses, especially when it
      casts doubt on the recovery and the genuineness of the
G     prosecution version. [Para 10) [795-E-H; 796-A-C]

        State of Punjab v. Baldev Singh (1999) 6 SCC 172 -
        followed.

 H        1.2. The High Court discarded the evidence of PW1
           MAKHAN SINGH v. STATE OF HARYANA                 791


and DW2 observing that these independent witnesses A
hail from the same village to which accused belongs and
the accused might have approached the witnesses
through respectables of the village to resile from his
statement. That apart, the High Court also observed that
both the independent witnesses did not explain the B
circumstances or compulsions in which they had to sign
the blank papers. The reasoning of the High Court is
based more on assumptions than on acceptable basis.
When PW1 and DW2 have asserted that they have signed
only the blank papers, the courts below ought to have C
considered them in proper perspective. [Para 9] [795-B-
D]
    2.1. Compliance with Section 50 of the NDPS Act will
come into play only in the case of personal search of D
the accuse~ and not of some baggage like a bag, article
or container, etc. which the accused may be carrying
ought to be searched [Para 15] [798-C]

     State of H.P v. Pawan Kumar(2005) 4 SCC 350; Ajmer      E
     Singh v. State of Haryana, (2010) 3 SCC 746 - relied
     on.

    2.2. In the present case, since the vehicle was
searched and the contraband was seized from the F
vehicle, compliance with Section 50 of the NDPS Act was
not required. In the absence of independent evidence,
connecting the appellant with the vehicle, mere
compliance with Section 50 of the NDPS Act by itself
would not be sufficient to establish the guilt of the G
appellant. [Para 16] [799-B]

    . 3. It is a well-settled principle of the criminal
jurisprudence that more stringent the punishment, the
more heavy is the burden upon the prosecution to prove H
792        SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A the offence. When the independent witnesses PW1 and
  DW2 have not supported the prosecution case and the
  recovery of the contraband has not been satisfactorily
  proved, the conviction of the appellant under Section
  15 of the NDPS Act cannot be sustained. Since in the
B cases of NDPS Act the punishment is severe, therefore
  strict proof is required for proving the search, seizure
  and the recovery. [Paras 16, 17] [799-C-D, E]

      CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
C No. 682 of 2015.

          From the Judgment and Order dated 10.12.2007 of the
      High Court of Punjab and Haryana at Chandigarh in Criminal
      Appeal No. 777-SB of 1996.
D
          Chanchal Kumar Ganguli, Naramada for the Appellant.

          Rahul Verma, AAG. Vishwa Pal Singh for the Respondent.

          The Judgment of the Court was delivered by
E
          R. BANUMATHI, J. 1. Delay condoned. Leave granted.
      2. This appeal arises out of the judgment dated
  10.12.2007 passed by the High Court of Punjab and Haryana
  at Chandigarh in Criminal Appeal No.777-SB of 1996,
F whereby the High Court affirmed the conviction of the appellant
  under Section 15 of the Narcotic Drugs and Psychotropic
  Substances Act, 1985 (for short 'the NDPSAct') and also the
  sentence of imprisonment of ten years along with a fine of
G Rs.1,00,000/- imposed on the appellant.
        3. Briefly stated case of prosecution is that on
   27.07.1994, the police officials during patrolling, when talking
   with one Manjeet Singh-PW1 and Gamdur Singh-DW2, saw
 H the suspicious 'fitter-rehra' (a vehicle) driven by the appellant.
         MAKHAN SINGH v. STATE OF HARYANA                          793
                 [R. BANUMATHI, J.]

  Police intercepted the vehicle and questioned the appellant       A
  about his whereabouts, and found some dubious bags lying in
  the vehicle. Before searching the bags, police intimated to
  the appellant that instead of being searched by police whether
  he wishes to be searched by a Gazetted Officer or a Magis-
  trate and the appellant declined to be searched by them and a     B
  consent memo (Ext.PA) was drawn. Then, the police in the
  presence of independent witnesses, i.e. Manjeet Singh and
  Gamdur Singh, conducted the search and during the search,
  three bags containing commercial quantity of poppy husk (120
  kgms.) were recovered from the appellant's vehicle. Police        C
  seized the bags, took sample of 200 grams from each of the
  bag and sealed them separately, and then sealed the remain-
  ing quantity in separate parcels and deposited the same with
  MHC. The sealed samples were sent to Chemical Examiner,           D
· who vide his report (Ext. PK) found the samples to be 'Pow-
  dered Poppy Husk'. On completion of investigation, police laid
  the chargesheet against the appellant under Section 15 of
  NPPSAct.

      4. Prosecution to prove their case examined as many as E
 six witnesses. Out of two independent witnesses in the case,
 Manjeet Singh-PW1 turned hostile and Gamdur Singh was won
 over by the defence and had been examined as defence wit-
 ness DW2. Defence examined one more witness, viz. Jaswant F
 Singh-DW1.

    5. The Sessions Court, after considering the evidence
held that the prosecution proved the guilt of the accused
beyond all reasonable doubt and thereby convicted the G
appellant under Section 15 of the NDPS Act and sentenced
him to undergo rigorous imprisonment for ten years and to
pay a fine of Rs. 1,00,000/- and in default, to undergo rigorous
imprisonment for two years. Appellant, being aggrieved, filed
the appeal challenging the conviction and sentence of H
794       SUPREME COURT REPORTS                  [2015] 5 S.C.R.


A imprisonment before the High Court. The High Court held that
  the evidence of PW6-lnspector Raghbir Singh and PW2-
  H.C.Suraj Mal is unimpeachable and vide impugned judgment
  dated 10.12.2007 confirmed the conviction of the appellant
  and dismissed the appeal.
B
       6. Challenging his conviction, the appellant has
  approached this Court with a contention that he has been falsely
  implicated in the case and that he was brought from his house
  and was put behind the bars. Learned counsel for the appellant
C contended that the case of the prosecution is based solely on
  the testimony of official witnesses PW2 and PW6 and much
  weightage ought not to have been attached to their testimony,
  especially by discarding the testimony of both the defence
  witnesses. It was submitted that since both the independent
D witnesses did not support the prosecution story, the prosecution
  has not proved its case beyond reasonable doubt and this
  material aspect has been ignored by the courts below.
  Appellant also alleges that non-compliance of mandatory
  provisions under Sections 50 and 52 of the NDPS Act vitiates
E the alleged recovery of contraband.

      7. Per contra, learned counsel for the respondent-State
  has supported the impugned judgment and submitted that the
  provisions of Section 50 of the NDPS Act has been duly
F complied with and the concurrent findings of the courts below
  recording the verdict of conviction cannot be interfered with.

        8. During the trial, PW1-Manjeet Singh was declared
  hostile by the prosecution and another independent witness
G Gamdur Singh was examined as defence witness. Both PW1
  and DW2 have deposed that the appellant was not arrested in
  their presence nor any recovery was made from him. PW1
  and DW2 have further deposed that when they went to police
  station for some work, they saw the appellant already in custody
H of police and that their signatures were obtained on the blank
        MAKHAN SINGH v. STATE OF HARYANA                     795
                [R. BANUMATHI, J.]

papers. In his cross-examination, though DW2 has admitted A
that Ext. PB bears his signature at point·~, he disowned his
statement in Ext.PL recorded under Section 161 of the Criminal
Procedure Code. Though PW1 turned hostile, his evidence
cannot be discarded as his testimony draws support from the
version of DW1 and DW2.                                        B

     9. The High Court discarded the evidence of PW1 and
DW2 observing that the independent witnesses hail from the
same village to which accused belongs and the accused might
have approached the witnesses through respectables of the C
village to resile from his statement. That apart, the High Court
also observed that both the independent witnesses did not
explain the circumstances or compulsions in which they had
to sign the blank papers. The reasoning of the High Court is
based more on assumptions than on acceptable basis. When D
PW1 and DW2 have asserted that they have signed only the
blank papers, the courts below ought to have considered them
in proper perspective.

      10. For recording the conviction, the Sessions Court as E
well as the High Court mainly relied on the testimony of official
witnesses who made the recovery, i.e. H.C. Suraj Mal-PW2
and Inspector Raghbir Singh-PW6, and found them sufficiently
strengthening the recovery of the possession from the appellant.
In our considered view, the manner in which· the alleged F
recovery has been made does not inspire confidence and
undue credence has been given to the testimony of official
witnesses, who are generally interested in securing the
conviction. In peculiar circumstances of the case, it may not
be possible to find out independent witnesses at all places at G
all times. Independent witnesses who live in the same village
or nearby villages of the accused are at times afraid to come
and depose in favour of the prosecution. Though it is well-
settled that a conviction can be based solely on the testimony H
796       SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A of official witnesses, condition precedent is that the evidence
  of such official witnesses must inspire confidence. In the
  present case, it is not as if independent witnesses were not
  available. Independent witnesses PW1 and another
  independent witness examined as DW2 has spoken in one
B voice that the accused person was taken from his residence.
  In such circumstances, in our view, the High Court ought not to
  have overlooked the testimony of independent witnesses,
  especially when it casts doubt on the recovery and the
  genuineness of the prosecution version.
c
        11. It is to be pointed out that the prosecution misdirected
  itself by unnecessarily focusing on Section 50 of the NDPS
  Act, when the fact is that the recovery has been made not from
  the person of the appellant but from the fitter-rehra which was
D allegedly driven by the appellant and, thus, Section 50 of the
  NDPSAct had no application at all. The prosecution ought to
  have endeavoured to prove whether the appellant had some
  nexus with the seized fitter-rehra. Though the police has seized
  the fitter-rehra (Ext. PB), the prosecution has not adduced any
E evidence either by examining the neighbours or others to bring
  home the point that the appellant was the owner or possessor
  of the vehicle. PW6 admitted in his cross-examination that
  signature or thumb impression of the appellant was not
F obtained on the recovery memo (Ext. PB). In our opinion, courts
  below erred in attributing to the appellant the onus to prove
  that wherefrom fitter-rehra had come, especially when
  ownership/ possession of fitter-rehra has not been proved by
  the prosecution.
 G       12. Jaswant Singh, who is a Sarpanch of the village and
   was examined as DW1, has supported the defence version
   that the appellant was taken away by the police from his home
   and he was falsely implicated. When the defence hastaken
 H the specific stand that the appellant was taken from his house
        MAKHAN SINGH v. STATE OF HARYANA                          797
                [R. BANUMATHI, J.]

by the police and that stand has been corroborated by the A
testimony of DW1, the prosecution ought to have adduced
cogent evidence that the alleged fitter-rehra on which the
appellant was alleged to be carrying 120 kilograms of poppy
husk belongs to the appellant. Failure to adduce the evidence
connecting the appellant with the fitter-rehra that the ownership/ B
possession of fitter-rehra with the appellant is fatal to the
prosecution case, benefit of which ought to have been given
to the accused.

     13. Both the Sessions Court and the High Court C
concurrently held that the mandatory provisions of Section 50
of the NDPS Act have been duly complied with. Sessions
Court observed that it is not necessary that in each and every
case the accused should be produced before the Gazetted
Officer or the Magistrate and if the accused so desires, then D
only he is to be produced before either of them. In Ext.PA/1,
Investigating Officer used the word 'Nyayadeesh' instead of
'Magistrate' does not mean that the Investigating Officer meant
something else.
                                                                      E
     14. A Constitution Bench of this Court in State of Punjab
v. Baldev Singh, (1999) 6 SCC 172, while dealing with the
scope of Section 50 of the NDPSAct, had emphasized upon
the aspect of availability of right of an accused to have 'personal
search' conducted before a Gazetted Officer or a Magistrate           F
and held as under:

      "32 ... The protection provided in the section to an
      accused to be intimated that he has the right to have his
      personal search conducted before a Gazetted Officer G
      or a Magistrate, if he so requires, is sacrosanct and
      indefeasible- it cannot be disregarded by the prosecution
      except at its own peril.

     33. The question whether or not the safeguards provided          H
798       SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A in Section 50 were observed would have, however, to be
  determined by the court on the basis of the evidence led at the
  trial and the finding on that issue, one way or the other, would
  be relevant for recording an order of conviction or acquittal.
  Without giving an opportunity to the prosecution to estc::blish
B at the trial that the provisions of Section 50, and particularly,
  the safeguards provided in that section were complied with, it
  would not be advisable to cut short a criminal trial."

       15. Compliance with Section 50 of the NDPSActwill come
C into play only in the case of personal search of the accused
  and not of some baggage like a bag, article or container, etc.
  which the accused may be carrying ought to be searched. In
  State of H. P v. Pawan Kumar, (2005) 4 SCC 350, this Court
  in Para (11) has held as under:
D
        "11. A bag, briefcase or any such article or container,
        etc. can, under no circumstances, be treated as body of
        a human being. They are given a separate name and
        are identifiable as such. They cannot even remotely be
E       treated to be part of the body of a human being.
        Depending upon the physical capacity of a person, he
        may carry any number of items like a bag, a briefcase, a
        suitcase, a tin box, a thaila, ajho/a, a gathri, a holdall, a
        carton, etc. of varying size, dimension or weight.
F       However, while carrying or moving along with them, some
        extra effort or energy would be required. They would have
        to be carried either by the hand or hung on the shoulder
        or back or placed on the head. In common parlance it
        would be said that a person is carrying a particular article,
G       specifying the manner in which it was carried like hand,
        shoulder, back or head, etc. Therefore, it is not possible
        to include these articles within the ambit of the word
        "person" occurring in Section 50 of the Act."

H       Same view was reiterated in Ajmer Singh v. State of
         MAKHAN SINGH v. STATE OF HARYANA                        799
                 [R. BANUMATHI, J.]

Haryana, (2010) 3 SCC 746.                                        A

     16. In the present case, since the vehicle was searched
and the contraband was seized from the vehicle, compliance
with Section 50 of the NDPS Act was not required. In the
absence of independent evidence connecting the appellant B
with the fitter-rehra, mere compliance with Section 50 of the
NDPSAct by itself would not be sufficient to establish the guilt
of the appellant. It is a well-settled principle of the criminal
jurisprudence that more stringent the punishment, the more
heavy is the burden upon the prosecution to prove the offence. C
When the independent witnesses PW1 and DW2 have not
supported the prosecution case and the recovery of the
contraband has not been satisfactorily proved, the conviction
of the appellant under Section 15 of the NDPS Act cannot be
sustained.                                                       D

      17. Section 15 provides for punishment for contravention
in relation to poppy straw. The maximum punishment provided
in the section is imprisonment of twenty years and fine of two
lakh rupees and minimum sentence of imprisonment of ten E
years and a fine of one lakh rupee. Since in the cases of NDPS
Act the punishment is severe, therefore strict proof is required
for proving the search, seizure and the recovery.

     18. The conviction of the appellant and the sentence F
imposed on him is set aside and this appeal is allowed. Fine
amount of Rs.1,00,000/-, if paid, is ordered to be refunded to
the appellant. The appellant is ordered to be set at liberty
forthwith unless required in any other case.
Kalpana K. Tripathy                            Appeal allowed.    G