SANJEET KUMAR SINGH @ MUNNA KUMAR SINGHversusSTATE OF CHHATTISGARH

166                      [2022]REPORTS
               SUPREME COURT   11 S.C.R. 166               [2022] 11 S.C.R.


A         SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH
                                        v.
                         STATE OF CHHATTISGARH
                       (Criminal Appeal No. 871 of 2021)
B                              AUGUST 30, 2022
       [INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
             Narcotic Drugs and Psychotropic Substances Act, 1985 –
      ss.20(b)(ii)(C), 54 Presumption u/s.54 – Appellant concurrently
      convicted u/s.20(b)(ii)(C) and sentenced, relying on the testimony
C
      of PW-7-DSP (who acted both as the informant and the IO) – On
      appeal, held: I.O. examined as PW-7 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
D     signatures found a place in the documents – Thus, a serious doubt
      is cast on the very search and seizure allegedly made by PW-7 – It is
      true that s.54 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 u/s.54 it must first be
      established that a recovery was made from the accused – The moment
E
      a doubt is cast upon the most fundamental aspect, the search and
      seizure, the appellant, will also be entitled to the same benefit as
      given by the Special Court to the co-accused – Appellant also entitled
      to the benefit of doubt – Judgments of the Special Court and the
      High Court set aside.
F
            Narcotic Drugs and Psychotropic Substances Act, 1985 –
      Evidence – Police witnesses, independent witnesses – Held: It is
      not always necessary that the evidence of the police witnesses have
      to be corroborated by independent witnesses – Also, independent
      witnesses turning hostile need not necessarily result in the acquittal
G     of the accused, when the mandatory procedure is followed and the
      other police witnesses speak in one voice – But if the Court has to
      completely disregard the lack of corroboration of the testimony of
      police witnesses by independent witnesses and 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
H
                                       166
   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                               167
              STATE OF CHHATTISGARH

official witnesses notably trustworthy – If independent witnesses           A
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 – Once the prosecution comes up with
a story that the search and seizure was conducted in the presence
of independent witnesses and they also choose to examine them
                                                                            B
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.
      Allowing the appeal, the Court
       HELD: 1.1 Some propositions of law on which there can be             C
no controversy. They are (i) that as per the decision of the
Constitution Bench of this Court in Mukesh Singh, 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, as held in                     D
Dharampal Singh and Mukesh Singh; (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; and (iv) that once it is established that the          E
contraband was recovered from the accused’s possession, a
presumption arises under Section 54. 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              F
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                    G
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 choose to examine them before Court, then the Court has
to see whether the version of the independent witnesses who
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168            SUPREME COURT REPORTS                     [2022] 11 S.C.R.


A     turned hostile is unbelievable and whether there is a possibility
      that they have become turncoats. [Paras 17, 18][174-G; 175-A-
      E]
            Mukesh Singh v. State (Narcotic Branch of Delhi) (2020)
            10 SCC 120 : [2020] 9 SCR 245; Dharampal Singh v.
B           State of Punjab (2010) 9 SCC 608 : [2010] 10 SCR
            1160; Rizwan Khan v. State of Chhattisgarh (2020) 9
            SCC 627 : [2020] 7 SCR 546 – relied on.
            1.2 The independent witnesses (CWs 1 and 2 ) who turned
      hostile, not only denied having witnessed anything, but also came
C     up with a plausible explanation as to how their signatures found
      place in the documents mentioned by PW-7. 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
D     by the Additional Public Prosecutor in cross examination.
      Therefore, the case on hand is not a routine, run-of-the-mill matter
      where independent witnesses are won over and they had no
      explanation to offer about their signatures in the Panchanama. If
      the story advanced by PW-7 is to be believed, (i) he received the
E     information at about 16:50 hrs.; (ii) he completed the formalities
      and sent notices to the independent witnesses at 17:10 hrs.; (iii)
      he left the Police Station at 17:10 hrs., and reached the place of
      incident in 5-7 minutes; and (iv) his team waited at the place of
      incident for 40 minutes for the accused to arrive. But in the said
      timeline, PW-7 is completely silent about the time when the
F     witnesses reached the Police Station or the place of incident.
      [Paras 25, 27][180-G-H; 181-G-H; 182-A]
            1.3 Further, the I.O. examined as PW-7 claims to have done
      everything only in the presence of independent witnesses. But
      those independent witnesses not merely denied their presence
G     and participation but also came up with an explanation as to how
      their signatures found a place in those documents. In such
      circumstances, a serious doubt is cast on the very search and
      seizure allegedly made by PW-7. But unfortunately, both the
      Special Court and the High Court went by the law in theory,
H     without applying the same to the facts of the case. Right from the
   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                           169
              STATE OF CHHATTISGARH

beginning, the co-accused (A-2) was implicated at every stage.          A
Admittedly, the information received by PW-7 at 16:50 hrs. on
31.05.2014 contained a reference to the appellant as well as the
co-accused. But for some strange reason, PW-7 chose to serve a
notice under Section 50 of the Act only on the appellant and not
on the co--accused. PW-7 also omitted deliberately or otherwise,
                                                                        B
to record, (i) the consent Panchnama of co-accused; (ii) the
search Panchnama of the co-accused; and (iii) the recovery
Panchnama in relation to the co-accused. This led to the Special
Court acquitting the co-accused. It is quite strange that, (i) the
information received by PW-7, (ii) the FIR; and (iii) the charge-
sheet implicated the co--accused, but the prosecution accepted          C
the finding of the Special Court that there could have been no
recovery from the co--accused despite the fact that she was also
travelling in the same car. [Paras 31-33][182-E-H; 183-A-B]
       1.4 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            D
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 will also be entitled to the
same benefit as given by the Special Court to the co--accused.          E
The appellant is also entitled to the benefit of doubt. 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. [Paras 33A, 34][183-        F
A-D]
      Ajmer Singh v. State of Haryana (2010) 3 SCC 746 :
      [2010] 2 SCR 785; Mohinder Singh v. State of Punjab
      (2018) 11 SCC 570; State of Punjab v. Baljinder Singh
      and Ors. (2019) 10 SCC 473 : [2019] 13 SCR 520 –                  G
      referred to.
                       Case Law Reference
[2010] 2 SCR 785               referred to             Para 12

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170            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A     (2018) 11 SCC 570                referred to               Para 12
      [2020] 9 SCR 245                 relied on                 Para 15
      [2010] 10 SCR 1160               relied on                 Para 15
      [2020] 7 SCR 546                 relied on                 Para 15
B     [2019] 13 SCR 520                referred to               Para 15
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      871 of 2021.
            From the Judgment and Order dated 01.10.2019 of the High Court
      of Chhattisgarh at Bilaspur in Criminal Appeal No. 790 of 2017.
C
            Somanatha Padhan, Abhas Parimal, Ashok Anand, Rakesh Kr.
      Singh, Akash Kakade, Mukul Dev Mishra, Ms. Sujata Kumari Muni,
      Advs. for the Appellant.
             Sourav Roy, Dy. AG, Mahesh Kumar, Prabudh Singh, Zakir Husain,
D     Ms. Devika Khanna, Mrs. V. D. Khanna for VMZ Chambers, Advs.
      for the Respondent.
            The Judgment of the Court was delivered by
            V. RAMASUBRAMANIAN, J.

E           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.
F
             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
G
      a secret information that the appellant and his friend Reena Das, were
      carrying ganja in the dickey of a car bearing registration no.CG-04HA-
      4850 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
H     to the spot, stopped the car, served a notice under Section 50 of the Act,
   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                  171
  STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

conducted a search and found 47.370 Kgs. of ganja kept in three bags           A
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 charge-sheet against the appellant as well
as his friend Reena Das for an offence punishable under Section 20(b)
                                                                               B
of the Act.
      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       C
imposed a sentence of rigorous imprisonment of 10 years. However, the
co-accused Reena Das was acquitted by the Special Court.
      6. The State did not file any appeal against the acquittal of Reena
Das, who was A-2. But the appellant filed an appeal on the file of the
High Court of Chhattisgarh, Bilaspur. The appeal was dismissed by a            D
judgment dated 01.10.2019. Therefore, A-1 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            E
the informant and as the Investigating Officer (‘I.O.’ for short) and
who was examined as PW-7. The Special Court found that PW-7 had
followed the procedure prescribed in Sections 43 and 49 of the Act and
that his testimony remained unshaken.
      8. Though PW-7 claimed that the search and the seizure was               F
conducted in the presence of two independent witnesses examined as
CW-1 and CW-2, these two witnesses claimed ignorance of the entire
operation. Therefore, the Special Court came to the conclusion that the
testimony of PW-7 was not corroborated by the evidence of independent
witnesses.
                                                                               G
       9. However, the Special Court came to the conclusion that the
entries made by PW-7 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.
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172               SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A           10. But, interestingly, the Special Court acquitted A-2 namely Reena
      Das on the ground, (i) that though in the Daily Register of Exhibit P-12
      and the Memo of Information, the name of A-2 was mentioned, PW-7
      did not mention her name in his testimony; (ii) that the notice under
      Section 50 was not served on A-2; and (iii) that there was no proof
      beyond doubt to show that the seized contraband was under the
B
      possession and the knowledge of A-2.
             11. As we have stated earlier, the State did not file an appeal
      against the acquittal of A-2. But the High Court held that the evidence
      of PW-7 remained unshaken even during cross-examination and that
      there was no reason to disbelieve his version. The High Court also held
C     that the Head Constable and the Constable examined as PWs 3 and 4
      corroborated the statement of PW-7 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
D     rejected by the High Court on the basis of the cogent testimony of PW-
      7. 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,
E     (i) that the informant and the I.O. happened to be the same person; (ii)
      that the independent witnesses namely CW-1 and CW-2 did not support
      the case of the prosecution, thereby leaving the testimony of PW-7
      uncorroborated; (iii) that when the appellant and the co-accused were
      alleged in the charge-sheet to be travelling in the same car from which
      ganja was seized, the acquittal of one of them and the conviction of the
F     other, on the basis of the very same testimony of PW-7 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
G     and Mohinder Singh vs. State of Punjab2.
            13. As regards the testimony of PW-7, 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:-
      1
          (2010) 3 SCC 746
      2
H         (2018) 11 SCC 570
   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                  173
  STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

         There are several omissions in his evidence;                          A
        He arrested both the accused and also charge-sheeted 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;                                                                        B

        He was silent about presence of CWs i.e. independent witnesses
and those independent witnesses pleaded ignorance;
        Even property seizure memo was not signed by accused and
witnesses and there was no stamping. This is also admitted by him;             C
       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 (A-2).
Except in the FIR and Charge Sheet, name of Reena Das was not
mentioned anywhere i.e. consent letter, memo of consent, memo of               D
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       E
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 (PW-4) was not even interrogated. But we do              F
not think the ownership of the car was of any material significance.
Therefore, we are not dealing with the same elaborately.
       15. In response to the contentions raised on behalf of the appellant,
it was argued by the learned Deputy AG for the State:-
                                                                               G
        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;
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174             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A              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
B     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
C     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;
               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 co-
D     accused 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
E
      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
F     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),
G     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

      3
        (2020) 10 SCC 120
      4
        (2010) 9 SCC 608
      5
        (2020) 9 SCC 627
      6
H       (2019) 10 SCC 473
   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                  175
  STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

always necessary that the evidence of the police witnesses have to be          A
corroborated by independent witnesses, 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
                                                                               B
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   C
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           D
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 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.                                                         E

       19. Let us see in the case on hand what PW-7 stated about the
manner in which the witnesses were roped in. The relevant portion of
the testimony (Chief Examination) of PW-7, where a reference is made
to independent witnesses, is extracted as follows:
                                                                               F
      “(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.-04-HA-4850 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              G
             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          H
176         SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A             Register with me. The Serial No.1283 entered in the Daily
              Register is Exhibit P-12 and its certified copy is Exhibit P-
              12 “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 P-13 and I had
B
              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 C-14,
              where my signatures on B to B parts and the notice sent
              to the witness Firturam Banware for appearing/
C             presenting at the time of proceedings is Exhibit C-1, 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
D             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 in-charge namely A.S.I.,
              Sharma of Police Assistant Center, Sakri was informed and
E             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 P-17 and the certified copy
              of the same is Exhibit P-17 “C”.

F     (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 C-2 and
              on which, my signatures at C to C parts.
      (9)     Contraband substance in three plastic bags was recovered
G             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 cross-examination, PW-7 stated as follows:
H
   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                 177
  STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

      “(22) Both the witnesses belong to Chakarbhata. I know previously       A
            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
                                                                              B
            in Police Station.
                            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     C
           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            D
           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     E
           substances identified by the witnesses in memo of
           identification Exhibit C-7.
                            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    F
           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.”
                                                                              G
      21. Having seen what PW-7 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 CW-1 reads as follows:
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178         SUPREME COURT REPORTS                        [2022] 11 S.C.R.


A     “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.
      2.      I was not called by Police of Police station Chakarbhata in
B             relation to Mukhbir information of Ganja in the year 2014
              or at another time, I was never called at Police-station, 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
C             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 Police-station Chakarbhata
              in relation to the dispute between some Sindhis and at that
              time Police took my signature on some documents. I did
D             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
E             to B of Ex.P/9 bears my signature. Police did not took my
              statement.
              //Cross-examination by Shri Kundan Singh, Public
              Prosecutor for Prosecution//
      4.      I had studied up to Eighth Class. It is correct to say that as
F             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
G             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 Police-station, witness himself states that
              because there was dispute between Sindhis he went to
              the Police-station. It is correct to say that at that day Sunil
              Maghlani also went there with me. It is correct to say that
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  SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                  179
 STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

           upon saying of someone document must not be signed                 A
           without reading it…
                           xxx             xxx             xxx
           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              B
           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 CW-2 reads as follows:                                  C

     “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 Police-station Chakarbhata. We
           went there for compromise for the dispute between our              D
           people. Police took our signature on 4-5 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        E
           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.
           //Cross-examination by Shri Kundan Singh, Public
           Prosecutor for Prosecution//                                       F
     3.    It is correct to say that I and Firturam Banware went to
           Police-station Chakarbhata in the evening at 5.00 hours of
           31.05.2014. It is incorrect to say that notice was given to
           me by Police-station Chakarbhata to be present for the
           investigation of Ganja case. It is incorrect to that with Police   G
           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            H
180            SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A                  white color plastic bags and it’s Panchnama was done in
                   my presence.”
             23. CWs 1 and 2 were cross-examined 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
B     regard CW-1 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
C           family of accused persons. It is incorrect to say that today family
            of accused persons came in the Court and met me.”
             24. Similarly, CW-2 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:-
D           “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
E           reason I signed on documents.
            //Cross-examination 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
F           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.”
             25. The independent witnesses who turned hostile, not only denied
      having witnessed anything, but also came up with a plausible explanation
G     as to how their signatures found place in the documents mentioned by
      PW-7. 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.
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   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                181
  STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

Therefore, the case on hand is not a routine, run-of-the-mill matter where   A
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 PW-7, he received information from one Mukhbir        B
      at 16:50 hrs. on 31.05.2014;
           PW-7 claims that upon receipt of information, he prepared
      Exhibit P-5 and completed the other formalities. Thereafter PW-
      7 sent notices to the independent witnesses at 17:10 hrs.;
                                                                             C
          PW-7 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 7-8
      Kms.;
         PW-7 stated that the houses of the independent witnesses Sunil      D
      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 PW-7 that when asked about the time of
      arrival of the independent witnesses at the Police Station, the
                                                                             E
      witness (PW-7) remained silent;
         In Paragraph 25 of the testimony of PW-7 (cross-examination)
      it is recorded that PW-7 reached the place of incident in 5-7
      minutes approximately. This is despite the fact that even according
      to PW-7, the distance between the Police Station and the place of
                                                                             F
      incident was approximately 7-8 Kms.; and
          PW-7 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 PW-7 is to be believed,      G
(i) he received the information at about 16:50 hrs.; (ii) he completed the
formalities and sent notices to the independent witnesses at 17:10 hrs.;
(iii) he left the Police Station at 17:10 hrs., and reached the place of
incident in 5-7 minutes; and (iv) his team waited at the place of incident
for 40 minutes for the accused to arrive.
                                                                             H
182            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A           28. But in the above timeline, PW-7 is completely silent about the
      time when the witnesses reached the Police Station or the place of
      incident.
             29. Exhibit C-1 is the notice purportedly served on the independent
      witness Firuturam Banware. This notice directs the said witness to appear
B     at 17:10 hrs. at the place indicated therein namely, “Saida Tiwari Para
      By-pass Main Road”. Even according to PW-7 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 PW-7 could
      have expected the witness to be available at the place of incident at
      17:10 hrs.
C
            30. Exhibit C-2 is the notice served on the appellant herein (A-1)
      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 in the
D     presence of witnesses. Exhibit C-3 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
      C-4 refers to the presence of CWs 1 and 2 at the time of search.
E            31. Therefore, it is clear that the I.O. examined as PW-7 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.
F           32. In such circumstances, a serious doubt is cast on the very
      search and seizure allegedly made by PW-7. 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 co-accused Reena Das (A-2)
G     was implicated at every stage. Admittedly, the information received by
      PW-7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellant
      as well as the co-accused Reena Das. But for some strange reason,
      PW-7 chose to serve a notice under Section 50 of the Act only on the
      appellant and not on the co-accused. PW-7 also omitted deliberately or
      otherwise, to record, (i) the consent Panchnama of co-accused; (ii) the
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   SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH v.                                   183
  STATE OF CHHATTISGARH [V. RAMASUBRAMANIAN, J.]

search Panchnama of the co-accused; and (iii) the recovery                      A
Panchnama in relation to the co-accused. This led to the Special Court
acquitting the co-accused. It is quite strange that, (i) the information
received by PW-7, (ii) the FIR; and (iii) the charge-sheet implicated the
co-accused, but the prosecution accepted the finding of the Special Court
that there could have been no recovery from the co-accused despite the
                                                                                B
fact that she was also travelling in the same car.
       33-A. 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               C
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 co-accused.
       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    D
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.
                                                                                E

Divya Pandey                                                  Appeal allowed.




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