MANU/MP/0397/1999

Equivalent Citation: 1999C riLJ3779, 1999(2)MPJR366, 1999(2)MPLJ525

IN THE HIGH COURT OF MADHYA PRADESH

Cri. Appeal No. 1474 of 1995
Decided On: 14.05.1999
Appellants: Mohammad Akhtar and Ors.
Vs.
Respondent: State of M.P.
Hon'ble Judges/Coram:
S.P. Khare, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Rajendra Singh, Sr. Adv. and R.K. Shukla, Adv.
For Respondents/Defendant: R.K. Verma, Panel Lawyer
ORDER
S.P. Khare, J.
Appellants Mohammad Akhtar and Mohammad Ali Naved have been convicted under
Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter to be referred to as the Act) and have been sentenced to rigorous
imprisonment for 10 years and fine of Rs. 1,00,000/- each. In default of payment of
fine, they have been sentenced to rigorous imprisonment for two years each.
It is not in dispute that Fiat Car B.L.0.149 was passing through Bijawar check post on
4-10-1992 at 2 a.m. It was intercepted and checked. Appellants Mohammad Akhtar
and Mohammad Ali Naved were inside this car. There was a lady and children also in
this car. This car was coming from Bihar and it was going to Bombay.
The prosecution case is that on search of the dickey of this car, a tin box was found.
That tin box contained 10 kgs of charas wrapped in a piece of cloth. Charas was
seized as per seizure memo Ex. P.-1. There were certain other articles and the
registration certificate of the car which were seized. This car is registered in the name
of appellant Mohammad Akhtar. Charas was sealed on the spot. A sample of charas
was sent to the Forensic Science Laboratory and it was confirmed that the commodity
which was seized from this car was charas.
The accused pleaded not guilty. Their defence was that they have been falsely
implicated and the real culprit has been let off.
The trial Court on the basis of evidence of S. P. Shukla (P.W. 2), Vishwanath Jadia
(P.W. 3) and R. K. Singh (P.W. 4) the Police Inspectors, held that the appellants were
in possession of the 10 kgs of Charas. They have been convicted and sentenced as
stated at the outset.
In this appeal, Shri Rajendra Singh, Senior Advocate appearing on behalf of the
appellants has raised three points; (a) Appellant Mohammad Ali was only a passenger

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 physical custody of it, then the burden of proving that the accused was not
knowingly in possession of the article is upon him. The practical difficulty of
the prosecution to prove something within the exclusive knowledge of the
accused must have made the legislature think that if the onus is placed on
the prosecution, the object of the Act would be frustrated.
The language of Section 35 of the Act is much stronger than Section 10 of the Opium
Act. According to the Explanation to.Section 35(1) 'culpable mental state" includes
knowledge of a fact. According to Section 35(1) the Court shall presume existence of
such mental state. The burden is placed upon the accused to prove the fact that he
had no such 'mental state'. The degree of burden of proof is 'beyond a reasonable
doubt'. In view of this statutory presumption, the prosecution is required to establish
the objective facts i.e. physical control or custody. The prosecution is not initially
required to prove the 'knowledge' That is to be presumed.
Possession is made of two elements; 'corpus' and 'animus'. The prosecution is
required to prove the physical control and then the knowledge will be presumed
unless disproved by the accused. Law develops empirically to meet practical needs.
For that reason the Supreme Court has observed in Inder Sain's case that it will
practically be impossible for the prosecution to prove the 'knowledge'. The onus is
shifted from prosecution to the accused because the fact how the accused came in
physical custody of the contraband is within his knowledge. That is also provided in
Section 106 of the Evidence Act. If the burden of proving the knowledge part is also
laid on the prosecution, the presumptive cause in Section 35 of the Act would
become redundant or otiose.
In the present case the two appellants were in the car and the charas was also there.
They had the "physical custody" of the contraband. As already stated there is no
evidence to the effect that the appellant No. 2 was only a passenger in the car. As per
Section 35 of the Act, the burden is upon the accused to prove 'beyond reasonable
doubt' and not merely by 'preponderance of probability' that he was not having
knowledge that the contraband article is kept in the car.
The absence of mens-rea in such cases is to be established by the accused. It may
appear somewhat a novel phenomena to the traditional criminal jurisprudence that
the burden on the accused to prove a fact is of the degree which is generally laid on
prosecution i.e. proof beyond reasonable doubt. But that has been given a statutory
recognition. In view of this legal position it is not enough to suggest in the cross-
examination of the prosecution witnesses that appellant Mohammad Ali Naved was
only a passenger in the car. It was necessary for him to establish this fact beyond
reasonable doubt. As already stated there is no evidence on this point and therefore,
it would be presumed that appellant Mohammad Ali Naved was also in possession of
the charas which is said to have been found in this car.
Points (b) and (c)
Vishwanath Jadia (P. W. 3) has deposed that he had sealed the charas seized from
the car on the spot. He had deposited the sealed packet in the Malkhana. He did not
open the packet. It is found that Vishwanath Jadia (P. W. 3) was Station Officer of
Bijawar police station. He was called to Chhatarpur by the Superintendent of Police
and he was sent for his duty near NauDurga orchestra as there was some programme.
During the course of the checking of the vehicles under the Motor Vehicles Act, the
Fiat car was checked and then the charas was recovered. R. K. Singh (P.W. 4) was

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MANU/TN/0947/2002
IN THE HIGH COURT OF MADRAS
Criminal Appeal Nos. 734 of 1999 and 323 of 2000 and Crl. M.P. No. 1038 of 2001
Decided On: 06.06.2002
Appellants: M. Nityanandam
Vs.
Respondent: State and Ors.
Hon'ble Judges/Coram:
M. Karpaga Vinayagam, J.
Counsels:
For Appellant/Petitioner/Plaintiff: B. Kumar, Sr. Counsel for R.C. Paul Kanagaraj, Adv.
For Respondents/Defendant: P.N. Prakash, Spl. Public Prosecutor

JUDGMENT
M. Karpaga Vinayagam, J.
1 . Nithyanandan (A1) and Sadiq Mohammed (A2) were tried for the offence under
Section 8(c) r/w. 22 and 29 of the N.D.P.S. Act. The trial Court convicted A1 for the
offence under Section 8(c) r/w. 22 of the N.D.P.S. Act. Challenging the conviction
Nithyanandan (A1) has filed the appeal in C.A. No. 734 of 1999. Assailing the
acquittal in respect of A2, the Intelligence Officer, D.R.I., Chennai, the complainant,
has filed the appeal in C.A. No. 323 of 2000.
2. Both these appeals are taken together and a common judgment is being delivered.
3. The prosecution case in brief is as follows:-
"(a) On 16.5.1998, P.W.2 Paul Mohamed, the Senior Intelligence Officer,
D.R.I., Chennai, received an information about the involvement of A1 and A2
that both have indulged in trafficking of narcotic drugs and sent Ex.P-7 report
to his Superior Officer.
(b) After obtaining permission from his Superior Officer, P.W.2 Paul
Moahamed sent P.W.1 Mohammed Iqbal and P.W.4 Christy to go to Anna
Nagar in order to fetch A1 to the office of the D.R.I. at T.Nagar. Accordingly,
P.Ws.1 and 4 went to Anna Nagar along with the informant and took A1 to
D.R.I. Office for interrogation.
(c) A1 gave Ex.P-1 confession statement to P.W.1 at the D.R.I. office stating
that he had received a steel trunk box and a plastic suit case from one
Lakshmanan containing narcotic drugs and kept those two boxes in the house
of his friend P.W.11 Mahendroo at Egmore. On the basis of the above
statement, P.W.1 prepared Ex.P-2 special report and sent it to his Superior
Officer.

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were seized from P.W.11's house.
54. Even as per Ex.P-1 statement given by A1, P.W.11 did not have the knowledge
about the nature of the article contained in the boxes. This has been corroborated by
Ex.P-37, the statement of P.W.11, stating that two boxes were handed over to him in
the Ambassador Car to have custody for one day stating that the boxes contained
"crab feed". On having good faith on A1, P.W.1 kept the boxes in the balcony of his
house. So, lack of knowledge about the nature of consignment as attributed to
P.W.11 would not apply to A1, as the consignment containing the offending articles
were recovered only on the basis of the statement given by A1. Therefore, even
though the contraband articles were recovered from the house of P.W.11, the
possession of the same by P.W.11 was only at the instance of A1 without having
knowledge about the contents of the containers.
55. Under those circumstances, A1 cannot escape by merely saying that it was not
recovered from him and he had no knowledge. Once there are materials to establish
that the containers containing the contraband were handed over by A1 to P.W.11
without divulging the real nature of the offending articles to him, it would definitely
show that the possession shall be construed to be of the appellant (A1.)
5 6 . It is settled principle that the concept of possession involves two elements,
namely, (1) possessed and (2) corpus possessed Even if a person does not have
physical custody of the contraband, and if it is shown that he has constructive
possession through some other person, he cannot be let away.
57. In this case the appellant (A1) has animus possessed namely, knowledge that the
boxes contained contraband and with the said knowledge, he made a false
representation to P.W.11 about the contents of the boxes and shifted the same from
his residence to the residence of P.W.11.
58. Possession implies dominion over an object and consciousness in the mind of the
person that he can exercise it. It is not necessary that the physical power of dealing
with the thing should be retained at every moment of time. It would be enough for
the purpose of retaining possession if that physical power can be exercised at any
movement the possessor wishes it.
5 9 . Possession in order to justify a conviction need not necessarily be in one's
exclusive possession. A person can be in possession jointly with others. If the
contraband was found in the joint possession of two persons, it can be presumed that
both are in possession of the article. The prosecution, no doubt, should prove that
each of the accused had either physical or constructive possession of the property
and that one or more of them had possession thereof either physical or constructive
on behalf of themselves and the other accused to the knowledge of the latter. The
presumption can be rebutted by the accused by establishing that he did not know
about the presence of the article by showing that it was dumped there without his
knowledge.
60. The above principles have been laid down by this Court in STATE OF KERALA v.
K.GOPALAN MANU/TN/0494/1962 : 1963 M.L.J. (Crl.) 418.
61. If these principles are applied to the present facts of the case, the prosecution
has produced materials to show that A1 had alone knowledge of the contents of the
containers and not P.W.11. As a matter of fact, P.W.11 was made to believe through
false representation by A1 that the boxes contained only "crab feed".

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MANU/MH/0131/1993
Equivalent Citation: 1994(2)BomC R414, 1994C riLJ785

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 86 of 1992
Decided On: 15.06.1993
Appellants:Khan Rukhsena Banoo
Vs.
Respondent: B.S. Rawat and Ors.
Hon'ble Judges/Coram:
M.F. Saldanha and S.P. Kurdukar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: H.V. Nimbalkar and Vijay Kakade, Advs.
For Respondents/Defendant: M.U. Patwardhan, Adv. and R.Y. Mirza, Public Prosecutor

JUDGMENT
M.F. Saldanha, J.
1. The appellant, a young lady, who hails from South Africa was charged with having
committed offences under the N.D.P.S. Act and the Customs Act in so far as it was
alleged that on 20th January, 1989, she had checked in at Sahar International
Airport, Bombay, for an Air Mauritius Flight No. M.K. 745 which flight was bound for
Durban via. Mauritius. She had checked in three suit cases which are the subject-
matter of the present prosecution and which, on examination were found to contain
women's clothing, principally maxis. The defence, however, disputes this fact and
maintains that the accused only had hand-baggage, that the owner of the 3 suit cases
could not be traced and that the officers have falsely alleged that they were checked
in by the accused. Concealed within the folds of these maxis and wrapped in cotton
were as many as 49 packages, each one containing 1000 tablets of Mandrax.
2 . The Appellant had gone to the Airport on that day and was required to get the
checked in baggage examined by the security staff. On the suit-cases being scanned
through the X'ray screening machine, the Security Officer, who did not find anything
objectionable by way of weapons or explosives noticed a large number of tablets in
the baggage. He therefore proceeded to Customs Superintendent Raghvan (P.W. 1)
and informed him that the lady concerned was carrying three suit cases which
appeared to contain large number of tablets. The passenger viz. the appellant had
completed the check in formalities and the three suit cases which weighed over 49
Kgs. involved a payment of excess baggage fare. The staff at the check in counter
therefore, collected approximately 452 Dollars as excess fare and issued a separate
ticket against the said payment in the name of the appellant and setting out her
passenger ticket number. As is the practice, three luggage tags bearing the
destination Mauritius were affixed to the three suit cases and the counterfoils bearing
the same serial numbers as the tags were stuck to the passenger's ticket, as is the
normal practice. The appellant thereafter proceeded through immigration and when

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drew our attention to the provisions of Section 138-A of the Customs Act which
provides for a presumption in relation to items and persons. It is his contention that
once possession is established, the legal presumption comes into operation. As
regards the provisions of the NDPS Act, Mr. Patwardhan relied upon the provisions of
Section 64 of the Act wherein the presumption arises once the aspect of possession is
established. He also drew our attention to Section 35 of the Act. We find that there is
a specific statutory presumption in relation to contraband, that comes within the
ambit of NDPS Act. The law, therefore, makes provisions for certain legal
presumptions that arise and for good reason, as otherwise, in our considered view, it
would be a stereo-type defence raised in every case where accused are found in
possession of contraband, to contend that it was given to her by a third party, that
the accused is not concerned with the baggage but is simply an innocent carrier.
Experience shows that such statements are made in almost every case. In a large
number of instances the racketeers and dealers deliberately pick passengers whom
the authorities are east likely to suspect or persons who on the face of it may not
appear to be regular smugglers and who are carriers for a small consideration.
16. It is for this reason that the law has made specific provisions under which any
person found in possession of substances that come within the ambit of the NDPS Act
shall be presumed to have knowledge of the nature of the contraband and the law
presumes such guilty knowledge. This provision is undoubtedly harsh but it is still
very necessary because in the absence of this provision in all such cases, the defence
would be that the accused is an innocent carrier and that consequently, the Court
should go back to the principle of conscious possession. To our mind, that principle
which may apply to any other cases would not be applicable here in view of the
specific provisions of the present Act.
1 7 . Lastly, Mr. Nimbalkar drew our attention to certain decisions of this Court in
relation to offences under the NDPS Act. Normally, we would have referred to all
these decisions, but we refrain from doing so, because, the facts of this case are
entirely different and the ratio of those cases will not be of any assistance to the
appellant in this proceeding. Mr. Nimbalkar contended that the requirements of
Section 43 of the Act have not been complied with. We have examined this argument.
We find that this section is directory and not mandatory, and in any event would not
make any appreciable difference.
18. In view of this position, the findings recorded by the Special Judge are required
to be confirmed. We see no reason to interfere with the conclusions arrived at. As
regards sentence, Mr. Nimbalkar makes a plea that the appellant is a young woman
and assuming the charge is proved, considering that she is the mother of four
children one of whom is blind, this Court should show her some sympathy. We find
from the order of the learned trial Judge that she has already been awarded the
minimum sentence. In the circumstances, there is no scope whatsoever for
interference on the question of sentence also.
The appeal accordingly fails and stands dismissed.
19. Appeal dismissed.

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MANU/SC/0733/2010
Equivalent Citation: 2011(1)ALD(C ri)486, 2010 (71) AC C 548, JT2010(10)SC 513, 2010(4)RC R(C riminal)504, 2010(10)SC ALE229,
(2010)9SC C 608, [2010]10SC R1160, 2010(3)UC 1774

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1479 of 2008
Decided On: 09.09.2010
Appellants: Dharampal Singh
Vs.
Respondent: State of Punjab
[Alongwith Criminal Appeal No. 1470 of 2008]
Hon'ble Judges/Coram:
H.S. Bedi and C.K. Prasad, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Nagendra Rai and Parmanand Katara, Sr. Advs., Rishi
Malhotra and Prem Malhotra, Advs.
For Respondents/Defendant: Kuldeep Singh, Adv.
Case Category:
CRIMINAL MATTERS - APPEAL UNDER SECTION 2 OF THE SUPREME COURT
(ENLARGEMENT OF JURISDICTION) ACT
JUDGMENT
C.K. Prasad, J.
1 . Appellants have preferred these appeals separately, aggrieved by the judgment
and order dated 22nd January, 2008 passed by the Punjab and Haryana High Court in
Criminal Appeal No. 686-DBA of 1997. whereby while reversing the judgment of
acquittal dated 7th May, 1997 passed by the Sessions Judge, Faridkot in Sessions
Case No. 73 of 1994 (Sessions Trial No. 71 of 1994) convicted the appellants for the
offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as the 'Act') and sentenced them to undergo rigorous
imprisonment for a period of 10 years each and to pay a fine of Rs. 1 lac each and in
default to undergo further rigorous imprisonment for a period of one year each.
2 . According to the prosecution, on 4th June, 1994 PW.3, Jagmohan Singh, Station
House Officer of Police Station, Mehna along with Assistant Sub-Inspector of Police,
Ranjit Singh and other police personnel were on a routine picket duty near the
passage leading to the various colonies from Ajitwal. While they were on duty a white
Maruti Car, bearing No. PID 6096 was seen coming from the side of village Kokri
Kalan through an unmetalled road and when signalled by Jagmohan Singh, it
stopped. On enquiry the person driving the car disclosed his name as appellant
Dharampal Singh whereas the other person sitting by his side on the front seat
disclosed his name as appellant Major Singh. According to the prosecution, the
Station House Officer apprised them that they intend to search their car and whether
they wish to be searched in the presence of a Magistrate or a Gazetted Officer. Both

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established the accused, who claims that it was not a conscious possession has to
establish it because it is within his special knowledge. Section 54 of the Act raises
presumption from possession of illicit articles. It reads as follows:
54. Presumption from possession of illicit articles. - In trials under this
Act, it may be presumed, unless and until the contrary is proved, that the
accused has committed an offence under this Act in respect of -
(a) any narcotic drug or psychotropic substance or controlled
substance;
(b) any opium poppy, cannabis plant or coca plant growing on any
land which he has cultivated;
(c) any apparatus specially designed or any group of utensils
specially adopted for the manufacture of any narcotic drug or
psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance or
controlled substance, or any residue left of the materials from which
any narcotic drug or psychotropic substance or controlled substance
has been manufactured,
From a plain reading of the aforesaid it is evident that it creates a legal fiction and
presumes the person in possession of illicit articles to have committed the offence in
case he fails to account for the possession satisfactorily. Possession is a mental state
and Section 35 of the Act gives statutory recognition to culpable mental state. It
includes knowledge of fact. The possession, therefore, has to be understood in the
context thereof and when tested on this anvil, we find that the appellants have not
been able to account for satisfactorily the possession of opium. Once possession is
established the Court can presume that the accused had culpable mental state and
have committed the offence. In somewhat similar facts this Court had the occasion to
consider this question in the case of Madan Lal and Anr. v. State of H.P.
MANU/SC/0599/2003 : 2003(7) SCC 465, wherein it has been held as follows:
26. Once possession is established, the person who claims that it was not a
conscious possession has to establish it, because how he came to be in
possession is within his special knowledge. Section 35 of the Act gives a
statutory recognition of this position because of the presumption available in
law. Similar is the position in terms of Section 54 where also presumption is
available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but
conscious possession has been established. It has not been shown by the
accused-appellants that the possession was not conscious in the logical
background of Sections 35 and 54 of the Act.
10. Now, referring to the decision of this Court in the case of Avtar Singh (supra),
the same is clearly distinguishable. In the said case, according to the prosecution
itself, the vehicle loaded with bags of poppy husk was a truck and when it was
stopped one person sitting in the cabin and another person sitting in the back of the
truck fled away. The accused in the said case were not the only occupants and in the
said background this Court held that they cannot be presumed to be in the possession

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MANU/SC/1268/2015
Equivalent Citation: 2015XII AD (S.C .) 65, 2016 (1) ALD(C rl.) 233 (SC ), 2015 (91) AC C 912, 2015ALLMR(C ri)4967, 2016 (2) ALT (C rl.) 54
(A.P.), 2016(1)BomC R(C ri)206, IV(2015)C C R212(SC ), 2016(1)C GLJ163, 2016(1)C LJ(SC )33, 2016C riLJ154, 2015(4)C rimes556(SC ),
2016(1)J.L.J.R.25, 2016(1)JKJ12[SC ], (2015) 4 MLJ(C rl) 486 (SC ), 2015(3)N.C .C .789, 2016(1)PLJR173, 2015(4)RC R(C riminal)1014,
2015(12)SC ALE308, (2015)17SC C 554, 2016 (3) SC J 29, 2015(3)UC 2102

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 167 of 2006
Decided On: 04.11.2015
Appellants: Baldev Singh
Vs.
Respondent: State of Haryana
Hon'ble Judges/Coram:
J.S. Khehar and R. Banumathi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Anmol Rattan Sidhu, Sr. Adv., Pratham Sethi,
Amandeep Mehra and Daya Krishan Sharma, Advs.
For Respondents/Defendant: Amit Kumar, AAG and Monika Gusain, Adv.
Case Category:
CRIMINAL MATTERS - APPEAL UNDER SECTION 2 OF THE SUPREME COURT
(ENLARGEMENT OF JURISDICTION) ACT
JUDGMENT
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 Appellant Under Section 15 of the Narcotic Drugs and Psychotropic
Substances Act 1985 (NDPS Act) on account of having been found in possession of
poppy husk and sentenced him to undergo rigorous imprisonment for twelve years
and to pay a fine of Rs. 1,50,000/- and in default to undergo rigorous imprisonment
for six months.
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-ASI 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 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 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-Chander Singh and as per rules Sub-Inspector
searched the trolley. Thirty three yellow coloured gunny bags containing poppy husk

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 Aher Raja Khima v. State of Saurashtra MANU/SC/0040/1955 : AIR 1956 SC
217, Venkatarama Ayyar, J. stated:
The presumption that a person acts honestly applies 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 good
to the public. It can only run down the prestige of the police
administration.
(Emphasis supplied)
[26] In Tahir v. State (Delhi) MANU/SC/0089/1996 : (1996) 3 SCC 338,
dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was)
stated:
Where the evidence 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
witness of the locality to lend corroboration to their evidence, does
not in any way affect the creditworthiness of the prosecution case.
1 2 . Testimony of Ram Singh-PW-1 and evidence on record amply establishes
physical possession of the contraband by the Appellant. The Appellant being the
driver of the vehicle by all probabilities must have been aware of the contents of the
bags transported in the trolley attached to the tractor. Once the physical possession
of the contraband by the accused has been proved, Section 35 of the NDPS Act comes
into play and the burden shifts on the Appellant-accused to prove that he was not in
conscious possession of the contraband. Section 35 of the NDPS Act reads as under:
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 that he had no such
mental state with respect to the act charged as an offence in that
prosecution.
Explanation.--In this section "culpable mental state" includes intention,
motive knowledge of a fact and belief 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 beyond a reasonable doubt and not merely when its
existence is 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 believing or reason to believe a fact. Sub-section (2) of Section 35 provides
that for the purpose of Section 35, a fact 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 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

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MANU/SC/0599/2003
Equivalent Citation: AIR2003SC 3642, 2003(2)ALD(C ri)688, 2003 (47) AC C 763, 2003(2)C GLJ395, 2003C riLJ3868, 2003(4)C rimes60(SC ),
2004(1)C TC 381, 2003(89)EC C 241, 2003(3)JKJ1[SC ], 2003(4)RC R(C riminal)100, 2003(6)SC ALE483, (2003)7SC C 465, [2003]Supp2SC R716,
2003(2)ShimLC 429

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 786 and 788 of 2002 and 905 of 2003
Decided On: 19.08.2003
Appellants:Madan Lal and Ors.
Vs.
Respondent:State of Himachal Pradesh
Hon'ble Judges/Coram:
Doraiswamy Raju and Dr. Arijit Pasayat, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Subhadra Chaturvedi (A.C.), Adv.
For Respondents/Defendant: J.S. Attri, Addl. Adv. General in Crl. A. No. 788/2002
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
Arijit Pasayat, J.
1 . Since these three appeals involve identical issues they are disposed of by this
common judgment.
2. The appellants and one other person faced trial for alleged commission of offence
punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short 'the Act').
3. All the five accused were found guilty of the alleged offence and all of them were
sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a fine
of Rs. 1 lakh with a default stipulation of a further rigorous imprisonment of 3
months in case of default to pay the fine.
4 . By the impugned judgment the High Court of Himachal Pradesh at Shimla
dismissed the appeals filed by the accused appellants.
5. In appeal Nos. 786/2002 and 788/2002 at the Special Leave Petition stage, there
were four petitioners. The special leave petition so far as petitioners Goyal Nath is
concerned was dismissed by an order dated 5.8.2002.
6 . Accusations which led to the trial of the accused appellants in a nutshell is as
follows:
On 5.10.1999, a secret telephonic message was recorded by Sunder Lal,
A.S.P. (PW-11) that charas was being transported in a Maruti Esteem blue car

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that the same was placed before the concerned Superintendent of Police. In other
words, the materials clearly establish that the information was sent without delay to
the immediate superior officer of PW-11 i.e. Superintendent of Police. That being the
position, contention regarding non-compliance of provisions of Section 42 is clearly
without substance.
15. Now comes the question whether there was non-compliance of Section 50 of the
Act.
16. A bare reading of Section 50 shows that it only applies in case of personal search
of a person. It does not extend to search of a vehicle or a container or a bag, or
premises. (See Kalama Tumba v. State of Maharashtra and Anr. MANU/SC/0662/1999
: 2000CriL J507 , The State of Punjab v . Baldev Singh MANU/SC/0981/1999 :
1999CriL J3672 , Gurbax Singh v . State of Haryana MANU/SC/0083/2001 :
2001CriL J1166 . The language of Section 50 is implicitly clear that the search has to
be in relation to a person as contrasted to search of premises, vehicles or articles.
This position was settled beyond doubt by the Constitution Bench in Baldev Singh's
case (supra). Above being the position, the contention regarding non-compliance of
Section 50 of the Act is also without any substance.
17. Coming to the plea that there was reduction in weight of the samples sent for
analysis and there was tampering, it has to be noted that this aspect has also been
considered by the trial court which has recorded the reasons for rejecting the same.
It has been noted that the seals were intact and there was no tampering. The view
has been endorsed by the High Court. On considering the reasoning indicated that
there was very minimal and almost ignorable variation in right, we find no reason to
interfere with the findings.
1 8 . The other plea which was emphasized was the alleged statement of accused
Goyal Nath that he alone was in possession of the contraband bags. The plea centers
round a statement of search witness PW-1, who stated that Goyal Nath told him that
contraband articles belonged to him. The statement was made totally out of context
and no credence can at all be attached to the statement. The accused Goyal Nath in
his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short
the 'Code') did not state that he was alone in possession of the contraband articles.
On the contrary, he stated that he did not know anything about the alleged seizure.
19. Whether there was conscious possession has to be determined with reference to
the factual backdrop. The facts which can be culled out from the evidence on record
is that all the accused persons were travelling in a vehicle and as noted by the Trial
Court they were known to each other and it has not been explained or shown as to
how they travelled together from the same destination in a vehicle which was not a
public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20
appears in Chapter IV of the Act which relates to offence for possession of such
articles. It is submitted that in order to make the possession illicit, there must be a
conscious possession.
21. It is highlighted that unless the possession was coupled with requisite mental
element, i.e. conscious possession and not mere custody without awareness of the
nature of such possession, Section 20 is not attracted.
2 2 . The expression 'possession' is a polymorphous term which assumes different

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MANU/SC/0680/2020
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 580 of 2020 (Arising out of S.L.P. (Criminal) No. 4422/2019)
Decided On: 10.09.2020
Appellants: Rizwan Khan
Vs.
Respondent: The State of Chhattisgarh
Hon'ble Judges/Coram:
Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ.
JUDGMENT
M.R. Shah, J.
1. Leave granted.
2 . Feeling aggrieved and dissatisfied with the impugned judgment and Order dated
01.10.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal
No. 881/2012, by which the High Court has dismissed the said appeal preferred by
the Appellant herein-original Accused No. 1 and has confirmed the judgment and
Order of Conviction and Sentence passed by the learned Special Court convicting the
Accused-Appellant No. 1 for the offence Under Section 20(b)(ii)(B) of Narcotic Drugs
& Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') and
sentencing him to undergo five years rigorous imprisonment and fine of Rs. 25,000/-,
in default, to undergo further one year's rigorous imprisonment, original Accused No.
1 has preferred the present appeal.
3. The facts leading to the present appeal are, that the Appellant - Accused No. 1 and
one another - Pukhraj were charged for the offence Under Section 20(b)(ii)(B) of the
NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance -
Ganja. As per the case of the prosecution, 20 kg of Ganja was recovered from the
possession of the Appellant from the motor cycle. Nothing objectionable was found
from the person of the Accused. Accused were informed about Section 50 of the
NDPS Act through a notice and were also told about their legal rights that if they
want their search was to be done either by a Gazetted Officer or Judicial Magistrate of
First Class or any other investigating officer. After giving permission that the search
can be conducted by any investigating officer, Accused was asked to open the sack
kept on his motor cycle and on opening the same, a bag of Ganja weighing 20 kg
was found. Panchnama was made of seizure. Samples of narcotics recovered from the
Accused were tested by smelling, burning and tasting it and was found to be Ganja.
An identification panchnama was prepared. The Ganja recovered from the Accused
was about 20 kg, out of which two packets each of about 100 gm were made for
sampling and then the weight panchnama was made. The samples were sealed and
an entry was made in the seizure list on which sample seal was marked. Samples
were marked as 'B1' and 'B2' and rest of the seized substance was marked as 'B'. The
Accused was arrested along with the other Accused from whom also the contraband
narcotic substance was found. At this stage, it is required to be noted that ASI J.K.
Sen (PW4) received the information and it was recorded by him in Dehati Nalsi and
FIR in the police station. However, subsequently, all further investigation was carried

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articles in the vehicle. To prove the case under the NDPS Act, the ownership of the
vehicle is not required to be established and proved. It is enough to establish and
prove that the contraband articles were found from the Accused from the vehicle
purchased by the Accused. Ownership of the vehicle is immaterial. What is required
to be established and proved is the recovery of the contraband articles and the
commission of an offence under the NDPS Act? Therefore, merely because of the
ownership of the vehicle is not established and proved and/or the vehicle is not
recovered subsequently, trial is not vitiated, while the prosecution has been
successful in proving and establishing the recovery of the contraband articles from
the Accused on the spot.
12. Now so far as the prayer on behalf of the Accused to take a lenient view and to
impose the lesser punishment than the sentence imposed by the learned Special
Court, confirmed by the High Court, is concerned, considering the object and purpose
of the enactment of the NDPS Act and the fact that the sentence provided under the
Act for the offence in question is rigorous imprisonment for a term which may extend
to 10 years and with fine which may extend to one lakh rupees and the Court has
imposed sentence of five years rigorous imprisonment only, the prayer to take a
lenient view is rejected as the learned Special Court itself has taken a lenient view.
13. In view of the above and for the reasons stated above, we are of the firm view
that both the courts below have rightly convicted the Accused for the offence Under
Section 20(b)(ii)(B) of the NDPS Act. We are in complete agreement with the findings
recorded by the learned Special Court and confirmed by the High Court and the
conviction recorded by both the courts below. We see no reason to interfere with the
conviction of the Accused for the offence Under Section 20(b)(ii)(B) of the NDPS Act.
In the circumstances, the present appeal fails and the same deserves to be dismissed
and is accordingly dismissed.
© Manupatra Information Solutions Pvt. Ltd.

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MANU/SC/8543/2006
Equivalent Citation: 2006(3)AC R3150(SC ), 2006(2)ALD(C ri)872, 2006 (Suppl.) AC C 141, 2009 (Suppl.) AC C 563, 2007(1)ALT(C ri)84,
C LT(2007)Supplement471, 2007C riLJ20, II(2006)DMC 757SC , [2007(1)JC R293(SC )], JT2006(9)SC 50, 2006(10)SC ALE190, (2006)10SC C 681,
[2006]Supp(8)SC R156, [2006]148STC 638(SC )

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1341 of 2005
Decided On: 11.10.2006
Appellants: Trimukh Maroti Kirkan
Vs.
Respondent: State of Maharashtra
Hon'ble Judges/Coram:
G.P. Mathur and R.V. Raveendran, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sudhanshu S. Choudhari and Naresh Kumar, Advs
For Respondents/Defendant: V.N. Raghupathy, Adv.
Case Category:
CRIMINAL MATTERS - APPEAL UNDER SECTION 2 OF THE SUPREME COURT
(ENLARGEMENT OF JURISDICTION) ACT
JUDGMENT
G.P. Mathur, J.
1. Trimukh Maroti Kirkan has filed this appeal against the judgment and order dated
27.7.2005 of Aurangabad Bench of Bombay High Court by which the appeal filed by
State of Maharashtra was allowed and the order dated 21.4.1997 passed by the
learned Additional Sessions Judge, Nanded was set aside and the appellant was
convicted under Section 302 IPC and was sentenced to imprisonment for life and a
fine of Rs.2,000/- and in default to undergo six months RI. By the same judgment
and order, the appeal filed by the appellant challenging his conviction under Section
498A IPC and the sentence of two years RI and a fine of Rs.1,000/- and in default to
undergo RI for three months was dismissed.
2. The case of the prosecution, in brief, is that the deceased Revata @ Tai daughter
of Dattarao resident of village Umatwadi was married to the appellant Trimukh Maroti
Kirkan (for short 'Trimukh') nearly seven years before the incident which took place
on 4.11.1996 in village Kikki. Maroti Kamaji Kirkan (for short 'Maroti') is the father
and Nilawatibhai Maroti Kirkan (for short 'Nilawati') is the mother of the appellant
Trimukh and they are residents of village Kikki. The appellant who is the husband and
Maroti and Nilawati used to ill-treat the deceased Revata and used to harass her on
account of non- payment of Rs.25,000/- by her parents for the purpose of purchasing
a tempo for the appellant. Whenever, the deceased Revata came to her parental
home, she used to disclose to her family members the ill- treatment and harassment
meted out to her. She came to her parental home at the time of Panchami festival in
the year 1996 and stayed there for about 15 days. During this period also she
disclosed that on account of non-fulfilment of demand of Rs.25,000/- by her father,

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 also told about the said fact to her neighbour PW.5 Girjabai of village Kikki.
V. After the death of Revata the appellant and his parents informed some
persons in the village as also the family members of the deceased that she
had died on account of snake bite.
VI. When PW.1, PW.2, PW.3 and PW.4 reached the house of the accused in
village Kikki, they found the body of the deceased in a sitting posture with
her back taking support from the wall. PW.14 Devichand, Assistant Sub-
Inspector of Police also found the body in the same position.
VII. The post-mortem examination revealed that Revata had died due to
asphyxia as a result of strangulation and not on account of snake bite.
VIII. Certain recoveries like chappal of the deceased, broken pieces of
bangles were made at the pointing out of the appellant. A shoe was also
recovered at his pointing out.
9. In the case in hand there is no eye-witness of the occurrence and the case of the
prosecution rests on circumstantial evidence. The normal principle in a case based on
circumstantial evidence is that the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly pointing towards the guilt
of the accused; that the circumstances taken cumulatively should form a chain so
complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and they should be incapable of
explanation on any hypothesis other than that of the guilt of the accused and
inconsistent with his innocence.
1 0 . The demand for dowry or money from the parents of the bride has shown a
phenomenal increase in last few years. Cases are frequently coming before the
Courts, where the husband or in-laws have gone to the extent of killing the bride if
the demand is not met. These crimes are generally committed in complete secrecy
inside the house and it becomes very difficult for the prosecution to lead evidence.
No member of the family, even if he is a witness of the crime, would come forward to
depose against another family member. The neighbours, whose evidence may be of
some assistance, are generally reluctant to depose in Court as they want to keep
aloof and do not want to antagonize a neighbourhood family. The parents or other
family members of the bride being away from the scene of commission of crime are
not in a position to give direct evidence which may inculpate the real accused except
regarding the demand of money or dowry and harassment caused to the bride. But, it
does not mean that a crime committed in secrecy or inside the house should go
unpunished.
11. If an offence takes place inside the privacy of a house and in such circumstances
where the assailants have all the opportunity to plan and commit the offence at the
time and in circumstances of their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of the accused if the strict principle
of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge
does not preside over a criminal trial merely to see that no innocent man is punished.
A Judge also presides to see that a guilty man does not escape. Both are public
duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with
approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003
: 2003CriL J3892 ). The law does not enjoin a duty on the prosecution to lead

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MANU/SC/2913/2008
Equivalent Citation: 2010 (71) AC C 575, 2008(56)BLJR2254, 2008GLH(3)43, JT2008(7)SC 409, 2008(3)RC R(C riminal)633, (2008)16SC C 417

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1034 of 2008 (Arising out of SLP (Crl.) No. 5597 of 2006)
Decided On: 09.07.2008
Appellants: Noor Aga
Vs.
Respondent: State of Punjab and Ors.
Hon'ble Judges/Coram:
S.B. Sinha and V.S. Sirpurkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Tanu Bedi, D.P. Singh, Sanjay Jain, Rajat Vohra,
Prayanat Singh, Rachna Golchha and Sunil Roy, Advs
For Respondents/Defendant: Vikas Sharma and B.V. Balaram Das, Advs for B. Krishna
Prasad, Kuldeep Singh and A.K. Mehta Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
S.B. Sinha, J
1. Leave granted.
INTRODUCTION
2 . Several questions of grave importance including the constitutional validity of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"), the
standard and extent of burden of proof on the prosecution vis-a-vis accused are in
question in this appeal which arises out of a judgment and order dated 9.06.2006
passed by the High Court of Punjab and Haryana in Criminal Appeal No. 810-SB of
2000 whereby and whereunder an appeal filed by the applicant against the judgment
of conviction and sentence dated 7.6.2000 under Section 22 and 23 of the Act has
been dismissed.
PROSECUTION CASE
3. Appellant is an Afghan national.
4 . He was arrested and later on prosecuted under Sections 22 and 23 of the Act
allegedly for carrying 1 kg 400 grams of heroin as a member of crew of Ariana
Afghan Airlines.
5. Appellant arrived at Raja Sansi Airport at about 6 p.m. on 1.08.1997. He presented
himself before the authorities under the Customs Act, 1962 (for short "the Customs
Act") for customs clearance. He was carrying a carton with him said to be containing

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reasonable doubt' would be more onerous. A heightened scrutiny test would be
necessary to be invoked. It is so because whereas, on the one hand, the court must
strive towards giving effect to the parliamentary object and intent in the light of the
international conventions, but, on the other, it is also necessary to uphold the
individual human rights and dignity as provided for under the UN Declaration of
Human Rights by insisting upon scrupulous compliance of the provisions of the Act
for the purpose of upholding the democratic values. It is necessary for giving effect
to the concept of 'wider civilization'. The courts must always remind itself that it is a
well settled principle of criminal jurisprudence that more serious the offence, the
stricter is the degree of proof. A higher degree of assurance, thus, would be
necessary to convict an accused. In State of Punjab v. Baldev Singh
MANU/SC/0981/1999 : 1999CriLJ3672 , it was stated:
It must be borne in mind that severer the punishment, greater has to be the
care taken to see that all the safeguards provided in a statute are
scrupulously followed.
[See also Ritesh Chakravarty v. State of Madhya Pradesh MANU/SC/4301/2006 :
2006(9)SCALE644 ]
83. It is also necessary to bear in mind that superficially a case may have an ugly
look and thereby, prima facie, shaking the conscience of any court but it is well
settled that suspicion, however high may be, can under no circumstances, be held to
be a substitute for legal evidence.
84. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the
culpable mental state on the part of the accused as also place burden of proof in this
behalf on the accused; but a bare perusal the said provision would clearly show that
presumption would operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An initial burden exists upon the
prosecution and only when it stands satisfied, the legal burden would shift. Even
then, the standard of proof required for the accused to prove his innocence is not as
high as that of the prosecution. Whereas the standard of proof required to prove the
guilt of accused on the prosecution is "beyond all reasonable doubt" but it is
'preponderance of probability' on the accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus
which is possession of contraband by the accused cannot be said to have been
established.
85. With a view to bring within its purview the requirements of Section 54 of the Act,
element of possession of the contraband was essential so as to shift the burden on
the accused. The provisions being exceptions to the general rule, the generality
thereof would continue to be operative, namely, the element of possession will have
to be proved beyond reasonable doubt.
86. Whether the burden on the accused is a legal burden or an evidentiary burden
would depend on the statute in question. The purport and object thereof must also be
taken into consideration in determining the said question. It must pass the test of
doctrine of proportionality. The difficulties faced by the prosecution in certain cases
may be held to be sufficient to arrive at an opinion that the burden on the accused is
an evidentiary burden and not merely a legal burden. The trial must be fair. The
accused must be provided with opportunities to effectively defend himself. In
Sheldrake v. Director of Public Prosecutions (2005) 1 All ER 237 in the following

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MANU/SC/0744/2013
Equivalent Citation: AIR2013SC 3395, 2014(1)ALD(C ri)11, 2013(3)ALT(C ri)158, 2013BomC R(C ri)687, 2013(3)BomC R(C ri)687, 2013C riLJ4058,
2013(4)C rimes4(SC ), 2013(3)J.L.J.R.476, 2013(4)JC C 137, JT2013(10)SC 515, 2013(2)N.C .C .670, 2013(4)PLJR7, 2013(3)RC R(C riminal)916,
2013(3)RLW2663(SC ), 2013(9)SC ALE544, (2013)14SC C 420

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2302 of 2010
Decided On: 23.07.2013
Appellants: Gian Chand and Ors.
Vs.
Respondent: State of Haryana
Hon'ble Judges/Coram:
B.S. Chauhan and S.A. Bobde, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: J.P. Dhanda and N.A. Usmani, Advs.
For Respondents/Defendant: Brijender Chahar, Sr. Adv., R.K. Shokeen and Kamal
Mohan Gupta, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
B.S. Chauhan, J.
1. This appeal has been filed against the judgment and order dated 4.11.2008 passed
by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 392-
SB of 2001, by which it has affirmed the judgment and order dated 2.2.2001 passed
by the trial Court, Sirsa by which the Appellants were convicted under the provisions
of Section 15 of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as the 'Act'). By that order, they were sentenced to undergo RI for a
period of 10 years each and to pay a fine of rupees 1 lakh each, and in default of
payment of fine, to undergo further RI for a period of one year.
2. Facts and circumstances giving rise to this appeal are that:
A. On 5.9.1996, at about 2.15 a.m., Bhan Singh, ASI of Police Station, Rania
alongwith other police officials was present in the village Chakka Bhuna in an
official jeep. The police party saw a jeep coming at high speed from the
opposite direction and asked the said jeep to stop. However, instead of
stopping, the driver accelerated the speed of the jeep. This created suspicion
in the minds of the police officials. Thus, they chased the jeep. The
occupants of the jeep took a U-turn and in that process the jeep struck the
wall of a house in the village. The three occupants of the jeep tried to run
away but they were caught by the police. The said three occupants were later
identified as the Appellants. They were asked whether they would like to be
searched before a Gazetted officer or a Magistrate, however, they chose the

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 provide adequate opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair play and fairness
in dealing with witnesses.
(Emphasis supplied)
(See also: Ravinder Kumar Sharma v. State of Assam and Ors.
MANU/SC/0561/1999 : AIR 1999 SC 3571;Ghasita Sahu v. State of Madhya
Pradesh MANU/SC/7014/2008 : AIR 2008 SC 1425; andRohtash Kumar v. State
of Haryana MANU/SC/0573/2013 : JT 2013 (8) SC 181)
12. The defence did not put any question to the Investigating Officer in his cross-
examination in respect of missing chits from the bags containing the case
property/contraband articles. Thus, no grievance could be raised by the Appellants in
this regard.
13. The Appellants were found travelling in a jeep at odd hours in the night and the
contraband material was found. Therefore, the question arises whether they can be
held to have conscious possession of the contraband substances.
This Court dealt with this issue in Madan Lal and Anr. v. State of Himachal
Pradesh MANU/SC/0599/2003 : AIR 2003 SC 3642, observing that Section 20(b)
makes possession of contraband articles an offence. Section 20 appears in Chapter IV
of the Act which relates to offences and penalties for possession of such articles.
Undoubtedly, in order to bring home the charge of illicit possession, there must be
conscious possession. The expression 'possession' has been held to be a
polymorphous term having different meanings in contextually different backgrounds.
Therefore, its definition cannot be put in a straitjacket formula. The word 'conscious'
means awareness about a particular fact. It is a state of mind which is deliberate or
intended. Possession in a given case need not be actual physical possession and may
be constructive i.e. Having power and control over the article in case in question,
while the person to whom physical possession is given holds it subject to that power
or control. The Court further held as under:
Once possession is established the person who claims that it was
not a conscious possession has to establish it, because how he came to
be in possession is within his special knowledge. Section 35 of the Act gives a
statutory recognition of this position because of presumption available in law.
Similar is the position in terms of Section 54 where also presumption is
available to be drawn from possession of illicit articles...
It has not been shown by the Accused-Appellants that the possession was not
conscious in the logical background of Sections 35 and 54 of the Act.
(Emphasis added)
14. From the conjoint reading of the provisions of Section 35 and 54 of the Act, it
becomes clear that if the Accused is found to be in possession of the contraband
article, he is presumed to have committed the offence under the relevant provisions
of the Act until the contrary is proved. According to Section 35 of the Act, the court
shall presume the existence of mental state for the commission of an offence and it is
for the Accused to prove otherwise.
Thus, in view of the above, it is a settled legal proposition that once possession of
the contraband articles is established, the burden shifts on the Accused to establish

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MANU/SC/0535/2000
Equivalent Citation: 2000(3)AC R2200(SC ), AIR2000SC 2988, 2000(2)ALD(C ri)718, 2000 (41) AC C 598, 2001(1)ALT(C ri)74, 2000C riLJ4047,
2000(4)C rimes1(SC ), JT2000(9)SC 467, 2000(4)RC R(C riminal)147, 2000(6)SC ALE148, (2000)8SC C 382, [2000]Supp2SC R712

IN THE SUPREME COURT OF INDIA

Crl.A. Nos. 785 of 1991 With Crl.A. Nos. 786, 787, 788, 789/91 and 638-645/2000)
Decided On: 29.08.2000
Appellants:State of West Bengal
Vs.
Respondent:Mir Mohammad Omar and Ors.
Hon'ble Judges/Coram:
K.T. Thomas and R.P. Sethi, JJ.
JUDGMENT
K.T. Thomas, J.
1 . A young businessman of Calcutta was abducted and killed. The kingpin of the
abductors and some of his henchmen were later nabbed and were tried for the
offences. The trial court convicted them under Section 364 read with Section 34 of
the Indian Penal Code, but not for murder, and sentenced them each to rigorous
imprisonment for 10 years. A Division Bench of the Calcutta High Court rejected the
State appeal against the acquittal for murder and reduced the sentence to a short
term imprisonment restricting it to the period which the convicted persons had
already undergone. The State of West Bengal as well as the convicted persons filed
these appeals against the said decision of the Calcutta High Court, the former mainly
challenging the acquittal for murder charge and the latter challenging the very
conviction entered against them.
2 . Narration of material facts of this case, in a brief manner, is necessary before
considering the contentions raised. The victim of the offence was one Mahesh Kumar
Aggarwal ('Mahesh' for short). He was doing some small business at Bow Bazar area
(Calcutta). He was a bachelor aged 29 and he was residing with his sister Anushila
Devi (PW-9) in an apartment situated on the Western Street which was re-christened
as Banbuk Gali. First accused Mir Mohammad @ Omar and 7th accused Sajid Ali were
friends and associates in many activities indulged in at Bow Bazar area and the other
accused were all the henchmen of Omar.
3. Sajid Ali (7th accused) wanted Mahesh to part with a sum of Rs. 50,000/- almost
as a ransom, for allowing him to deal with his business unobstructed. But the
deceased did not capitulate to the demand and such refusal led to a dig between the
two. It seems Mahesh scored an upper hand in the dig. The above episode happened
about 10-12 days before the death of Mahesh.
4 . The night of 4.11.1984 became horrendously eventful for Mahesh. The events
started with the gate-crashing made by some assailants led by A-7 Sajid Ali, into the
apartment of Anushila Devi (PW-9) in search of her brother Mahesh. Having failed to
see him there the assailants left the apartment after hurling threatening words at the
housewife. About an hour later, Mahesh reached the apartment and was told by his
sister of what happened. Mahesh got frightened and left the house lest the assailants

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have happened. In that process court shall have regard to the common course of
natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by
the accused and they took him out of that area, the accused alone knew what
happened to him until he was with them. If he was found murdered within a short
time after the abduction the permitted reasoning process would enable the court to
draw the presumption that the accused have murdered him. Such inference can be
disrupted if accused would tell the court what else happened to Mahesh at least until
he was in their custody.
3 5 . During arguments we put a question to learned senior counsel for the
respondents based on a hypothetical illustration. If a boy is kidnapped from the
lawful custody of his guardian in the sight of his people and the kidnappers
disappeared with the prey, what would be the normal inference if the mangled dead
body of the boy is recovered within a couple of hours from elsewhere. The query was
made whether upon proof of the above facts an inference could be drawn that the
kidnappers would have killed the boy. Learned senior counsel finally conceded that in
such a case the inference is reasonably certain that the boy was killed by the
kidnappers unless they explain otherwise.
36. In this context we may profitably utilise the legal principle embodied in Section
106 of the Evidence Act which reads as follows: "When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him."
37. The section is not intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt. But the Section would apply to cases
where the prosecution has succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of certain other facts, unless the
accused by virtue of his special knowledge regarding such facts, failed to offer any
explanation which might drive the court to draw a different inference.
38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to
meet certain exceptional cases in which it would be impossible for the prosecution to
establish certain facts which are particularly within the knowledge of the accused. In
Shambu Nath Mehra v. The State of Ajmer MANU/SC/0023/1956 : 1956CriL J794 the
learned Judge has stated the legal principle thus:
This lays down the general rule that in a criminal case the burden of proof is
on the prosecution and Section 106 is certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately difficult for
the prosecution to establish facts which are 'especially' within the knowledge
of the accused and which he could prove without difficulty or inconvenience.
The word 'especially' stresses that. It means facts that are pre-eminently or
exceptionally within his knowledge.
39. In the present case, the facts which prosecution proved including the proclaimed
intention of the accused, when considered in the light of the proximity of time within
which the victim sustained fatal injuries and the proximity of the place within which
the dead body was found are enough to draw an inference that victim's death was
caused by the same abductors. If any deviation from the aforesaid course would have
been factually correct only the abductors would know about it, because such
deviation would have been especially within their knowledge. As they refused to state

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MANU/SC/0981/1999
Equivalent Citation: 1999(2)AC R1694(SC ), AIR1999SC 2378, 1999(2)ALD(C ri)279, 1999 (39) AC C 349, 1999 (3) AWC 2546 (SC ),
1999C riLJ3672, (1999)157C TR(SC )3, 1999(65)EC C 695, 1999(84)EC R545(SC ), [1999(81)FLR303], (1999)3GLR2483, JT1999(4)SC 595,
(1999)ILLJ254SC , 1999(II)OLR474, 1999(II)OLR(SC )474, 1994(4)SC ALE144

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 396 of 1990 With SLP (Cri.) Nos. 2187, 2141 & 2137 etc. etc. of
1990, Cri. Appeal Nos. 483 of 1990, 573 of 1989, SLP (Cri.) No. 2496 of 1989, Cri.
M.P. No. 6675 of 1997 and Cri. Appeal Nos. 1185, 744, 745 & 815 of 1998
Decided On: 21.07.1999
Appellants: State of Punjab
Vs.
Respondent: Baldev Singh and Ors.
Hon'ble Judges/Coram:
Dr. A.S. Anand, C.J., S.B. Majmudar, S.V. Manohar, K. Venkataswami and V.N. Khare,
JJ.
Counsels:
For Respondents/Defendant: V.A. Mohta, N.N. Goswami, M.S. Nargolkar, Sr. Advs.,
R.S. Sodhi, Lokesh Kumar, Kuldeep Singh, V.B. Saharya, K.K. Mehrotra, Advs. Amicus
Curiae, S.M. Walawaikar, S.V. Deshpande, Vimal Dave, Shailendra Narayan Singh,
Kamini Jaiswal, K. Sarada Devi, A.L. Trehan, Debasis Misra, N.S. Bisht, Sudhir
Nandrajog, N.K. Aggarwal, Advs. Amicus Curiae, Rajiv Dawar, D.S. Mehra, K.C.
Kaushik, Sanjeev Malhotra, R.C. Kohli, Harjinder Singh, Priya Saxena, Chandra
Prakash Pandey, S.S. Shinde, D.M. Nargolkar, Yashank Adhyaru, Hemantika Wahi, A.
Subhashini and K.M.K. Nair, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
A.S. Anand, C.J.
1. On 15.7.1997 when this batch of appeals/special leave petitions was placed before
a two-Judge Bench, it was noticed that there was divergence of opinion between
different Benches of this Court with regard to the ambit and scope of Section 50 of
Narcotic Drugs and - Psychotropic Substances Act, 1985 (hereinafter 'NDPS Act') and
in particular with regard to the admissibility of the evidence collected by an
investigating officer during search and seizure conducted in violation of the
provisions of Section 50 of NDPS Act. In the cases of State of Punjab v. Balbir Singh
MANU/SC/0436/1994 : 1994 CriL J 3702. Ali Mustaffa Abdul Rahman Moosa v. State
of Kerala MANU/SC/0050/1995 : AIR1995SC244. Saiyad Mohd. Saiyad Umar Saiyad
and Ors. v. State of Gujarat, MANU/SC/0695/1995 : 1995CriL J2662 and a number of
other cases, it was laid down that failure to observe the safeguards, while conducting
search and seizure, as provided by Section 50 would render the conviction and
sentence of an accused illegal. In AH Mustaffa's case (supra), the judgment in Pooran
Mal v. The Director of Inspection (Investigation), New Delhi and Ors.

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brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down
that when the person to be searched is brought before such a Gazetted Officer or the
Magistrate and such Gazetted Officer or the Magistrate finds that there are no
reasonable grounds for search, he shall forthwith discharge the person to be
searched, otherwise he shall direct that the search be made.
1 3 . On its plain reading, Section 50 would come into play only in the case of a
search of a person as distinguished from search of any premises etc. However, if the
empowered officer, without any prior information as contemplated by Section 42 of
the Act makes a search or causes arrest of person during the normal course of
investigation into an offence or suspected offence and on completion of that search, a
contraband under the NDPS Act is also recovered, the requirements of Section 50 of
the Act are not attracted.
14. Vide Section 51, the provisions of the CrPC, 1973, shall apply, insofar as they are
not inconsistent with the provisions of the NDPS Act, to all warrants issued and
arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985
after incorporating the board principles regarding search, seizure and arrest etc. in
Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the
CrPC shall apply insofar as they are not inconsistent with the provisions of the NDPS
Act. The expression "insofar as they are not inconsistent with the provisions of this
Act" occurring in Section 51 of the NDPS Act is of significance. This expression
implies that the provisions of the CrPC relating to search, seizure or arrest apply to
search, seizure and arrest under NDPS Act also except to the extent they are
"inconsistent with the provisions of the Act". Thus, while conducting search and
seizure, in addition to the safeguards provided under the CrPC, the safeguards
provided, under the NDPS Act are also required to be followed. Section 50(4) of the
NDPS Act lays down that no female shall be searched by anyone excepting a female.
This provision is similar to the one contained in Section 52 of the CrPC, 1898 and
Section 51(2) of the CrPC, 1973 relating to search of females. Section 51(2) of the
CrPC, 1973 lays down that whenever it is necessary to cause a female to be searched,
the search shall be made by another female with strict regard to decency. The
empowered officer must, therefore, act in the manner provided by Section 50(4) of
the NDPS Act read with Section 51(2) of the CrPC, 1973 whenever it is found
necessary to cause a female to be searched. The document prepared by the
Investigating Officer at the spot must invariably disclose that the search was
conducted in the aforesaid manner and the name of the female official who carried
out the personal search of the concerned female should also be disclosed. The
personal search memo of the female concerned should indicate compliance with the
aforesaid provisions. Failure to do so may not only affect the credibility of the
prosecution case but may also be found as violative of the basic right of a female to
be treated with decency and proper dignity.
15. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the
provisions of the NDPS Act and are applicable for affecting search, seizure or arrest
under the NDPS Act also. However, when an empowered officer carrying on the
investigation including search, seizure or arrest under the provisions of the CrPC,
comes across a person bring in possession of the narcotic drugs or the psychotropic
substance, then he must follow from that stage onwards the provisions of the NDPS
Act and continue the investigation as provided thereunder. If the investigating officer
is not an empowered officer then it is expected of him that he must inform the
empowered officer under the NDPS Act, who should thereafter proceed from that
stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after

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MANU/SC/0193/2014
Equivalent Citation: 2014(1)AC R977, AIR2014SC 2564, 2014 (85) AC C 307, 2014ALLMR(C ri)3363(SC ), III(2014)C C R564(SC ),
2014(2)C LJ(SC )14, 2014C riLJ3532, JT2014(4)SC 236, 2014-2-LW(C rl)541, 2014(4)MPHT383(SC ), 2014(2)RC R(C riminal)139,
2014(4)RLW2937(SC ), 2014(3)SC ALE407, (2014)4SC C 780, 2015 (5) SC J 58

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1101 of 2005
Decided On: 05.03.2014
Appellants: State of H.P.
Vs.
Respondent: Sunil Kumar
Hon'ble Judges/Coram:
Ranjana Prakash Desai and Madan B. Lokur, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Suryanarayana Singh, Addl. AG and Pragati Neekhra,
Adv.
For Respondents/Defendant: Debasis Misra and R.P. Vyas (AC), Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
Madan B. Lokur, J.
1 . The question before us is whether the accidental or chance recovery of narcotic
drugs during a personal or body search would attract the provisions of Section 50 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act). In our
opinion, the issue is no longer res integra having been answered in the negative by
the Constitution Bench in State of Punjab v. Baldev Singh MANU/SC/0981/1999 :
(1999) 6 SCC 172.
The facts:
2. The Respondent Sunil Kumar was travelling in a bus on 9th December, 2000 away
from Chamba in Himachal Pradesh. The bus was stopped at Dhundiara Bungalow at
about 1.15 p.m. for a 'traffic check' by ASI Joga Singh (PW-13), in-charge of Police
Post Banikhet, accompanied by Head Constable Pritam Singh (PW-3), Constable Mazid
Mohammad (PW-2) and Constable Des Raj (PW-5) all of whom were acting under the
supervision of Gulab Singh (PW-12) the Deputy Superintendent of Police, Dalhousie.
A 'traffic check', we were told, means a check for ticketless passengers etc. We were
also told that narcotic substances are quite easily available in the Chamba area, but
the bus was not stopped for checking the carriage or transportation of any narcotics.
3 . Be that as it may, during the check, Constable Mazid Mohammad noticed the
passenger occupying seat No. 20 (Sunil Kumar) concealing something under his
clothes. Therefore, Sunil Kumar was asked to disembark from the bus and then asked

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MANU/SC/0436/1994 : (1994) 3 SCC 299 the personal search of Sunil Kumar
resulting in the recovery of contraband did not violate Section 50 of the Act. Reliance
was placed by learned Counsel on paragraph 25 in Balbir Singh which was also
endorsed by the Constitution Bench. It was submitted that it is only after a chance or
accidental recovery of any narcotic drug or psychotropic substance by any police
officer that the provisions of the Act would come into play. It is then that the
empowered officer should be informed and that empowered officer should thereafter
proceed to investigate the matter in accordance with the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated under
the provisions of the NDPS Act makes a search or arrests a person in the
normal course of investigation into an offence or suspected offences as
provided under the provisions of Code of Criminal Procedure and when such
search is completed at that stage Section 50 of the NDPS Act would not be
attracted and the question of complying with the requirements thereunder
would not arise. If during such search or arrest there is a chance recovery of
any narcotic drug or psychotropic substance then the police officer, who is
not empowered, should inform the empowered officer who should thereafter
proceed in accordance with the provisions of the NDPS Act. If he happens to
be an empowered officer also, then from that stage onwards, he should carry
out the investigation in accordance with the other provisions of the NDPS
Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we need
to firstly understand what a 'chance recovery' is. The next question would be whether
the provisions of Section 50 of the Act would apply when there is a chance recovery.
14. The expression 'chance recovery' has not been defined anywhere and its plain
and simple meaning seems to be a recovery made by chance or by accident or
unexpectedly. In Mohinder Kumar v. State, Panaji, Goa MANU/SC/0230/1995 :
(1998) 8 SCC 655 this Court considered a chance recovery as one when a police
officer "stumbles on" narcotic drugs when he makes a search. In Sorabkhan
Gandhkhan Pathan v. State of Gujarat MANU/SC/1234/2003 : (2004) 13 SCC
608 the police officer, while searching for illicit liquor, accidentally found some
charas. This was treated as a 'chance recovery'.
15. Applying this to the facts of the present appeal, it is clear that the police officers
were looking for passengers who were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried by a passenger. This can only
be described as a recovery by chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.
1 6 . It is not possible to accept the view of the High Court that since the police
officers conducted a random search and had a "positive suspicion" that Sunil Kumar
was carrying contraband, the recovery of charas from his person was not a chance
recovery. The recovery of contraband may not have been unexpected, but the
recovery of charas certainly was unexpected notwithstanding the submission that
drugs are easily available in the Chamba area. The police officers had no reason to
believe that Sunil Kumar was carrying any drugs and indeed that is also not the case
set up in this appeal. It was plainly a chance or accidental or unexpected recovery of
charas-Sunil Kumar could well have been carrying any other contraband such as,

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MANU/SC/1461/2019
Equivalent Citation: AIR2019SC 5298, 2020 (1) ALD(C rl.) 194 (SC ), 2020 (110) AC C 933, 2020C riLJ751, 2019(4)JKJ314[SC ],
2020(1)RC R(C riminal)58, 2019(14)SC ALE226, (2019)10SC C 473

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1565-66 of 2019 (Arising out of SLP (Crl.) Nos. 5659-
5660/2019)
Decided On: 15.10.2019
Appellants: State of Punjab
Vs.
Respondent: Baljinder Singh and Ors.
Hon'ble Judges/Coram:
U.U. Lalit, Indu Malhotra and Krishna Murari, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Jaspreet Gogia and Tanu Priya Gupta, Advs.
For Respondents/Defendant: Naresh Dilawari, Mahesh Thakur, Sheffali Chaudhary,
Vipasha Singh, Pallavi Singh, Vriti Gujral and G. Balaji, Advs.
Case Category:
CRIMINAL MATTERS - MATTERS FILED BY STATE AGAINST ACQUITTAL
JUDGMENT
U.U. Lalit, J.
1. Leave granted.
2 . These appeals arise out of the judgment1 of the High Court2 setting aside the
order of conviction and sentence recorded by the Trial Court against the present
Respondents, namely, Baljinder Singh and Khushi Khan.
3. The case of the prosecution as set out in the judgment of the High Court was as
under:
3. The case of the prosecution in a nutshell is that on 19.8.2009 ASI Rakesh
Kumar along with other police officials in connection with patrolling duty
were present at Sirhind bye-pass, Rajpura. Lachhman Singh son of Sarwan
Singh came on the spot. When Rakesh Kumar was talking with Lachhman
Singh, a Qualis bearing registration No. PB-13-D-7000 was seen coming
from Ambala side. On seeing the police party, the driver of the vehicle tried
to reverse the vehicle. On suspicion, the vehicle was stopped. One lady was
sitting with the driver. On enquiry, the driver and passenger disclosed their
identities. ASI Rakesh Kumar suspected them to be carrying some contraband
in the bags lying in the vehicle. He wanted to search them. He apprised the
Accused of their right to get the search conducted in the presence of
Magistrate or gazetted Police Officer. However, Accused reposed confidence
in him. Joint consent statement of Accused was reduced into writing. On
search, 7 bags containing poppy husk were recovered. Two samples of 250

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 non-compliance with Section 50 of the NDPS Act is relevant only where
search of a person is involved and the said Section is not applicable nor
attracted where no search of a person is involved. Search and recovery from
a bag, briefcase, container, etc. does not come within the ambit of Section
50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of
person only. Secondly, the Section speaks of taking of the person to be
searched by the gazetted officer or a Magistrate for the purpose of search.
Thirdly, this issue in our considered opinion is no more res Integra in view of
the observations made by this Court in Madan Lal v. State of H.P.
[MANU/SC/0599/2003 : (2003) 7 SCC 465]. The Court has observed: (SCC
p. 471, para 16)
16. A bare reading of Section 50 shows that it only applies in case
of personal search of a person. It does not extend to search of a
vehicle or a container or a bag or premises (see Kalema Tumba v.
State of Maharashtra [MANU/SC/0662/1999 : (1999) 8 SCC 257],
State of Punjab v. Baldev Singh-[MANU/SC/0981/1999 : (1999) 6
SCC 172] and Gurbax Singh v. State of Haryana
[MANU/SC/0083/2001 : (2001) 3 SCC 28]). The language of Section
50 is implicitly clear that the search has to be in relation to a person
as contrasted to search of premises, vehicles or articles. This
position was settled beyond doubt by the Constitution Bench in
Baldev Singh case MANU/SC/0981/1999 : (1999) 6 SCC 172 Above
being the position, the contention regarding non-compliance with
Section 50 of the Act is also without any substance.
1 6 . As regards applicability of the requirements Under Section 50 of the Act are
concerned, it is well settled that the mandate of Section 50 of the Act is confined to
"personal search" and not to search of a vehicle or a container or premises.
1 7 . The conclusion (3) as recorded by the Constitution Bench in Para 57 of its
judgment in Baldev Singh clearly states that the conviction may not be based "only"
on the basis of possession of an illicit Article recovered from personal search in
violation of the requirements Under Section 50 of the Act but if there be other
evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of
any contraband. Even if there was any such recovery, the same could not be relied
upon for want of compliance of the requirements of Section 50 of the Act. But the
search of the vehicle and recovery of contraband pursuant thereto having stood
proved, merely because there was non-compliance of Section 50 of the Act as far as
"personal search" was concerned, no benefit can be extended so as to invalidate the
effect of recovery from the search of the vehicle. Any such idea would be directly in
the teeth of conclusion (3) as aforesaid.
1 8 . The decision of this Court in Dilip's case, however, has not adverted to the
distinction as discussed hereinabove and proceeded to confer advantage upon the
Accused even in respect of recovery from the vehicle, on the ground that the
requirements of Section 50 relating to personal search were not complied with. In our
view, the decision of this Court in said judgment in Dilip's case is not correct and is
opposed to the law laid down by this Court in Baldev Singh and other judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs.

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MANU/SC/0857/2018
Equivalent Citation: AIR2018SC 3853, 2019 (1) ALD(C rl.) 696 (SC ), 2018 (104) AC C 977, 2018(4)BomC R(C ri)644, IV(2018)C C R543(SC ),
2019C riLJ420, 2018(3)C rimes218(SC ), 2018(3)J.L.J.R.393, 2018(4)JC C 228, 2018(3)JKJ3[SC ], 2018 (4) KHC 387, 2018(3)KLT852, 2018-2-
LW(C rl)596, 2018(4)MLJ(C rl)244, 2018(3)N.C .C .220, 2018(II)OLR485, 2018(3)PLJR419, (2018)192PLR450, 2018(4)RC R(C riminal)101,
2018(9)SC ALE663, 2018 (10) SC J 540, 2018(3)UC 1611

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1880 of 2011
Decided On: 16.08.2018
Appellants: Mohan Lal
Vs.
Respondent: The State of Punjab
Hon'ble Judges/Coram:
Ranjan Gogoi, R. Banumathi and Navin Sinha, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Chanchal Kumar Ganguli, Sujoy Mandal, Karunesh
Kumar Shukla and Narmada Singh, Advs.
For Respondents/Defendant: Jaspreet Gogia and Mandakini Singh, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
Navin Sinha, J.
1 . The Appellant assails his conviction Under Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred as "the NDPS Act"),
sentencing him to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-
(Rupees one lakh only), with a default stipulation.
2 . An F.I.R. was lodged on 03.02.1997 by PW-1, Chand Singh, Sub-Inspector of
Balianwali Police Station, that while on patrol duty, he was accompanied by Darshan
Singh, Sarpanch and Assistant Sub-Inspector Balwinder Singh. The witness
entertained doubts about the Appellant upon seeing him. PW-4, Shri Rajinder N.
Dhoke, IPS, a gazetted officer, was called and the Appellant was searched, leading to
recovery of 4 kg of opium in a bag carried by him. The consent memo, Exhibit-PB
was signed by Darshan Singh and PW-1. The seized opium was separated into a
sample of 20 gm. and 3kg 980 gm. The specimen seal was prepared by PW-1 and
after use, the seal was handed over to ASI, Balwinder Singh. "Ruqa" was prepared by
PW-1 and forwarded to Balianwali Police Station. PW-3, Assistant Sub-Inspector,
Darshan Singh registered the formal F.I.R. and handed over investigation to PW-1.
Upon conclusion of investigation, the Appellant was charge-sheeted, put on trial, and
convicted.
3. Sh. Chanchal Kumar Ganguli, learned Counsel for the Appellant submitted that the
NDPS Act being a stringent law carrying a reverse burden of proof, there had to be

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 the Malkhana-in-Charge?
2 9 . Were the samples sent to the designated laboratory for analysis and
report within 72 hours of seizure?
In Noor Aga v. State of Punjab, MANU/SC/2913/2008 : (2008) 16 SCC 417, under
the NDPS Act, it was held:
91. The logical corollary of these discussions is that the guidelines such as
those present in the Standing Order cannot be blatantly flouted and
substantial compliance therewith must be insisted upon for so that sanctity of
physical evidence in such cases remains intact. Clearly, there has been no
substantial compliance with these guidelines by the investigating authority
which leads to drawing of an adverse inference against them to the effect
that had such evidence been produced, the same would have gone against
the prosecution.
1 0 . Unlike the general principle of criminal jurisprudence that an Accused is
presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of
proof Under Sections 35 and 54. But that cannot be understood to mean that the
moment an allegation is made and the F.I.R. recites compliance with statutory
procedures leading to recovery, the burden of proof from the very inception of the
prosecution shifts to the Accused, without the prosecution having to establish or
prove anything more. The presumption is rebuttable. Section 35 (2) provides that a
fact can be said to have been proved if it is established beyond reasonable doubt and
not on preponderance of probability. The stringent provisions of the NDPS Act, such
as Section 37, the minimum sentence of ten years, absence of any provision for
remission, do not dispense with the requirement of the prosecution to establish a
prima facie case beyond reasonable doubt after investigation, only after which the
burden of proof shall shift to the Accused. The case of the prosecution cannot be
allowed to rest on a preponderance of probabilities.
1 1 . A fair trial to an Accused, a constitutional guarantee Under Article 21 of the
Constitution, would be a hollow promise if the investigation in a NDPS case were not
to be fair or raises serious questions about its fairness apparent on the face of the
investigation. In the nature of the reverse burden of proof, the onus will lie on the
prosecution to demonstrate on the face of it that the investigation was fair, judicious
with no circumstances that may raise doubts about its veracity. The obligation of
proof beyond reasonable doubt will take within its ambit a fair investigation, in
absence of which there can be no fair trial. If the investigation itself is unfair, to
require the Accused to demonstrate prejudice will be fraught with danger vesting
arbitrary powers in the police which may well lead to false implication also.
Investigation in such a case would then become an empty formality and a farce. Such
an interpretation therefore naturally has to be avoided.
12. That investigation in a criminal offence must be free from objectionable features
or infirmities which may legitimately lead to a grievance on part of the Accused was
noticed in Babubhai v. State of Gujarat, MANU/SC/0643/2010 : (2010) 12 SCC
254 as follows:
32. The investigation into a criminal offence must be free from objectionable
features or infirmities which may legitimately lead to a grievance on the part
of the Accused that investigation was unfair and carried out with an ulterior
motive. It is also the duty of the investigating officer to conduct the

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14. In a criminal prosecution, there is an obligation cast on the investigator not only
to be fair, judicious and just during investigation, but also that the investigation on
the very face of it must appear to be so, eschewing any conduct or impression which
may give rise to a real and genuine apprehension in the mind of an Accused and not
mere fanciful, that the investigation was not fair. In the circumstances, if an
informant police official in a criminal prosecution, especially when carrying a reverse
burden of proof, makes the allegations, is himself asked to investigate, serious
doubts will naturally arise with regard to his fairness and impartiality. It is not
necessary that bias must actually be proved. It would be illogical to presume and
contrary to normal human conduct, that he would himself at the end of the
investigation submit a closure report to conclude false implication with all its
attendant consequences for the complainant himself. The result of the investigation
would therefore be a foregone conclusion.
15. The discussion in the present case may not be understood as confined to the
requirements of a fair investigation under the NDPS Act only carrying a reverse
burden of proof. Baldev Singh (supra) related to a prosecution Under Section 165A
of the Indian Penal Code. Nonetheless, it observed that if the informant were to be
made the investigating officer, it was bound to reflect on the credibility of the
prosecution case. Megha Singh (supra) concerned a prosecution under the Terrorist
and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable
being the complainant himself could not have proceeded with the investigation and it
was a practice, to say the least, which should not be resorted to so that there may
not be any occasion to suspect fair and impartial investigation. Rajangam (supra)
was a prosecution under the NDPS Act, an objection was taken that PW-6 who
apprehended the Accused could not have investigated the case. Upholding the
objection, relying on Megha Singh (supra) the Accused was acquitted. The view
taken by the Madras High Court in Balasundaran v. State, MANU/TN/0675/1999 :
1999 (113) ELT 785 (Mad.), was also noticed as follows:
1 6 . Learned Counsel for the Appellants also stated that P.W. 5 being the
Inspector of Police who was present at the time of search and he was the
investigating officer and as such it is fatal to the case of the prosecution.
P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the
time of search. In fact, P.W. 5 alone took up investigation in the case and he
had examined the witnesses. No doubt the successor to P.W. 5 alone had
filed the charge sheet. But there is no material to show that he had examined
any other witness. It therefore follows that P.W. 5 was the person who really
investigated the case. P.W. 5 was the person who had searched the
Appellants in question and he being the investigation officer, certainly it is
not proper and correct. The investigation ought to have been done by any
other investigating agency. On this score also, the investigation is bound to
suffer and as such the entire proceedings will be vitiated.
1 6 . Bhaskar Ramappa Madar (supra) concerned a prosecution Under Section
304B, Indian Penal Code which also carries a reverse burden of proof. The Trial Court
held that the investigating officer who was also the complainant could not have
investigated, and on that ground, held the prosecution to be tainted. The acquittal
was reversed by the High Court. In appeal, this Court declined to interfere with the
conviction. After referring to Bhagwan Singh (supra) and Megha Singh (supra), it
was observed that the principles laid down therein had to be confined to the facts of
the said cases and that the matter would have to be decided on the facts of each case
without any universal generalisation.

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 1

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(CRIMINAL) DIARY NO.39528/2018

Mukesh Singh …Petitioner

Versus
State (Narcotic Branch of Delhi) …Respondent

WITH
SPECIAL LEAVE PETITION(CRIMINAL) NO. 5648/2019
SPECIAL LEAVE PETITION(CRIMINAL) NO. 5894/2019
SPECIAL LEAVE PETITION(CRIMINAL) NO. 8499/2019

JUDGMENT

M.R. SHAH, J.

Having doubted the correctness of the decision of this Court in the case of

Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627 taking the view

that in case the investigation is conducted by the police officer who himself is

the complainant, the trial is vitiated and the accused is entitled to acquittal,
Signature Not Verified

Digitally signed by

initially by order dated 17.01.2019 the matter was referred to a larger Bench
Charanjeet kaur
Date: 2020.08.31
18:19:25 IST
Reason:

consisting of three Judges. A three Judge Bench vide order dated 12.09.2019
 58

the prosecution is satisfied. At this stage, it is required to be noted that the

reverse burden does not merely exist in special enactments like the NDPS Act

and the Prevention of Corruption Act, but is also a part of the IPC – Section

304B and all such offences under the Penal Code are to be investigated in

accordance with the provisions of the Cr.P.C. and consequently the informant

can himself investigate the said offences under Section 157 Cr.P.C.

11. Therefore, as such, there is no reason to doubt the credibility of the

informant and doubt the entire case of the prosecution solely on the ground that

the informant has investigated the case. Solely on the basis of some

apprehension or the doubts, the entire prosecution version cannot be discarded

and the accused is not to be straightway acquitted unless and until the accused

is able to establish and prove the bias and the prejudice. As held by this Court

in the case of Ram Chandra (supra) the question of prejudice or bias has to be

established and not inferred. The question of bias will have to be decided on

the facts of each case [See Vipan Kumar Jain (supra)]. At this stage, it is

required to be noted and as observed hereinabove, NDPS Act is a Special Act

with the special purpose and with special provisions including Section 68

which provides that no officer acting in exercise of powers vested in him under

any provision of the NDPS Act or any rule or order made thereunder shall be

compelled to say from where he got any information as to the commission of

 59

any offence. Therefore, considering the NDPS Act being a special Act with

special procedure to be followed under Chapter V, and as observed

hereinabove, there is no specific bar against conducting the investigation by the

informant himself and in view of the safeguard provided under the Act itself,

namely, Section 58, we are of the opinion that there cannot be any general

proposition of law to be laid down that in every case where the informant is the

investigator, the trial is vitiated and the accused is entitled to acquittal.

Similarly, even with respect to offences under the IPC, as observed

hereinabove, there is no specific bar against the informant/complainant

investigating the case. Only in a case where the accused has been able to

establish and prove the bias and/or unfair investigation by the informant-cum-

investigator and the case of the prosecution is merely based upon the

deposition of the informant-cum-investigator, meaning thereby prosecution

does not rely upon other witnesses, more particularly the independent

witnesses, in that case, where the complainant himself had conducted the

investigation, such aspect of the matter can certainly be given due weightage

while assessing the evidence on record. Therefore, as rightly observed by this

Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be

decided on a case to case basis without any universal generalisation. As rightly

held by this Court in the case of V. Jayapaul (supra), there is no bar against the

informant police officer to investigate the case. As rightly observed, if at all,

such investigation could only be assailed on the ground of bias or real

 60

likelihood of bias on the part of the investigating officer the question of bias

would depend on the facts and circumstances of each case and therefore it is

not proper to lay down a broad and unqualified proposition that in every case

where the police officer who registered the case by lodging the first

information, conducts the investigation that itself had caused prejudice to the

accused and thereby it vitiates the entire prosecution case and the accused is

entitled to acquittal.

12. From the above discussion and for the reasons stated above, we conclude

and answer the reference as under:

I. That the observations of this Court in the cases of Bhagwan Singh v.

State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996)

11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam

(2010) 15 SCC 369 and the acquittal of the accused by this Court on the ground

that as the informant and the investigator was the same, it has vitiated the trial

and the accused is entitled to acquittal are to be treated to be confined to their

own facts. It cannot be said that in the aforesaid decisions, this Court laid

down any general proposition of law that in each and every case where the

informant is the investigator there is a bias caused to the accused and the entire

prosecution case is to be disbelieved and the accused is entitled to acquittal;

II. In a case where the informant himself is the investigator, by that itself

cannot be said that the investigation is vitiated on the ground of bias or the like
 61

factor. The question of bias or prejudice would depend upon the facts and

circumstances of each case. Therefore, merely because the informant is the

investigator, by that itself the investigation would not suffer the vice of

unfairness or bias and therefore on the sole ground that informant is the

investigator, the accused is not entitled to acquittal. The matter has to be

decided on a case to case basis. A contrary decision of this Court in the case of

Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking

a contrary view that the informant cannot be the investigator and in such a case

the accused is entitled to acquittal are not good law and they are specifically

overruled.

13. The Reference is answered accordingly.

14. Now, respective petitions be placed before the appropriate Court taking

up such matters for deciding the petitions in accordance with law and on merits

and in light of the observations made hereinabove and our answer to the

Reference, as above.

…………………………………..J.
[ARUN MISHRA]

………………………………….J.
[INDIRA BANERJEE]

………………………………….J.
[VINEET SARAN]
MANU/SC/0283/2005
Equivalent Citation: 2005(2)AC R1440(SC ), AIR2005SC 2221, 2005 (52) AC C 896, 2005(2)ALT(C ri)154, 2005(5)ALT13(SC ),
(2006)1C ALLT20(SC ), 2006(1)C GLJ44, 2005C riLJ2201, 2005(2)C rimes79(SC ), 2005(100)EC C 83, 2005(121)EC R381(SC ), JT2005(4)SC 390,
2005(3)KLT601(SC ), 2005(3)PLJR17, 2005(2)RC R(C riminal)586, RLW2005(2)SC 224, (2005)5SC C 151, [2005]1SC R496, 2005(2)UJ848

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 541 of 2005 (Arising out of SLP (Crl.) No. 3316/2003)
Decided On: 12.04.2005
Appellants: State of Rajasthan
Vs.
Respondent: Ram Chandra
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Aruneshwar Gupta, Additional Solicitor General,
Naveen Kumar Singh, Shivangi and Ashok Kumar Mahajan, Advs
For Respondents/Defendant: Lakhan Singh Chauhan and Kailash Chand, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
Arijit Pasayat, J.
1. Leave granted.
2. The State of Rajasthan is in appeal against the judgment of learned Single Judge,
Rajasthan High Court, Jaipur Bench, Jaipur holding that there was non-compliance
with the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short the 'Act'). The said conclusion was arrived at on the
ground that though the accused respondent had been given the option of being
searched in the presence of Shri Satyendra Singh (PW-3), the Deputy Superintendent
of Police, he was in essence a member of the raiding party and, therefore, the search
in his presence cannot at all be said to be in consonance with Section 50 of the Act,
though he was a Gazetted Officer.
3. Background facts in a nutshell are as under:
On 8.9.1995 Prem Shaker Meena (PW-2), SHO Police Station, Kotwali, Baran
having received information about illicit trafficking in narcotic substances,
rushed to the place pointed out by the informant and apprehended the
accused respondent. Satyendra Singh, Dy. S.P. (PW-3) also reached there.
Subsequently, being of the suspicion that accused respondent was in
possession of contraband, the SHO informed him of his right to have his
search conducted either in presence of Shri Satyendra Singh, Dy. S.P. (PW-3)
who was a Gazetted Officer and happened to be present there or in the

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presence of PW-3 was not in compliance with the requirements of Section 50. Stress
is on the search being conducted in the presence of any of the enumerated categories
of the officers. In S. Jeevanatham v. State through Inspector of Police, T.N.
MANU/SC/0494/2004 : 2004CriL J3834, it was contended by the accused that
investigation having been conducted by the complainant-police officer, the conviction
in terms of Section 8(c) read with Section 20(b)(ii) of the Act was vitiated. The plea
was repelled relying on the decision of this Court in State represented by Inspector of
Police, Vigilance and Anti-corruption, Tiruchirapalli, T.N. v. Jayapaul
MANU/SC/0256/2004 : 2004CriL J1819. It was observed that nothing was pointed out
to show that the investigation had caused prejudice or was biased against the
accused. In the instant case, the accused was informed of his rights and options to be
exercised. He consented to be searched in the presence of PW-3. Therefore, it was
not open to him even to urge non-compliance of Section 50.
24. In fact in S. Jeevanatham's case (supra) this Court did not accept the plea that an
officer who was the complainant cannot be the investigating officer. The question of
prejudice or bias has to be established and not inferred. In any event, there cannot
be any legal presumption in that regard. At this juncture, it is to be noted that under
Sub-section (3) of Section 50, the Gazetted Officer or the Magistrate before whom
the person who is to be searched is brought can, in a given case, come to hold that
there is no reasonable ground for the search and shall forthwith "discharge" the
person. Otherwise, he shall direct the search to be made. The expression 'discharge'
used in Sub-section (3) of Section 50 is used in the sense that the detention is
terminated.
25. The powers to detain, search and arrest have been conferred by Sections 41(2),
42 and 43. Under Section 42(1)(d) the officer authorized may between sunrise and
sunset detain and search and if he thinks proper arrest any person who he has reason
to believe has committed an offence punishable under Chapter IV relating to the
notified drug or substance. The question of arrest comes after a person is detained
and searched and thereafter if the officer thinks proper arrest can be effected on the
foundation that the officer has reason to believe that the person so detained and
searched has committed an offence punishable under Chapter IV. It cannot be said
that the person accompanying the officer authorized cannot say 'No' to the proposed
search even if he sees no reasonable ground for search. It is the legislative trust
imposed on a superior officer to act fairly and reasonably. Therefore, it is for the
accused to establish prejudice which is to be done at the trial. On the facts of the
case, actually these questions do not arise. The object of requiring the search to be
conducted if so required before the specified Gazetted officer or nearest Magistrate is
to ensure that the officers who are charged with a duty of conducting search conduct
them properly and do no harm or wrong such as planting of an offending drug by any
interested party and preventing fabrication of any false evidence. The provision in
essence intends to act as a safeguard against vexatious search, unfair dealings and to
protect and safeguard the interest of innocent persons. In order to avoid arrest and
nip the investigation in the bud thereby protecting the liberty of a person, a statutory
safeguard is provided in Sub-section (3) of Section 50. Power has been vested in the
Magistrate or the Gazetted Officer before whom the concerned person is brought on
his requisition made under Sub-section (2) to forthwith discharge the person without
formal proceedings on his satisfaction that there is no reasonable ground for search.
As a consequence, search takes place only when he declines to discharge such a
person.
26. Firstly, as noted above PW-3 arrived at the spot after the person was detained

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MANU/SC/0221/2003
Equivalent Citation: (2003)181C TR(SC )24, [2003]260ITR1(SC ), (2005)9SC C 579, [2003]129TAXMAN59(SC )

IN THE SUPREME COURT OF INDIA

Decided On: 23.01.2003
Appellants: Union of India (UOI) and Ors.
Vs.
Respondent: Vipan Kumar Jain and Ors.
Hon'ble Judges/Coram:
Ruma Pal and B.N. Srikrishna, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.L. Verma, Sr. Adv., Preetesh Kapur, Neera Gupta
and B.V. Balaram Das, Advs
ORDER
1. Between September 30, 1998, and October 15, 1998, the premises of the
respondents was searched under Section 132 of the Income-tax Act, 1961
(hereinafter referred to as the "Act"). The search party was headed by one Harinder
Kumar who had been appointed as the authorised officer for the purposes of Section
132 of the Act by the Commissioner of Income-tax.
2 . Almost two years after the search was carried out when the assessments of the
respondents were sought to be completed, the respondents filed a writ petition in the
High Court of Punjab and Haryana impugning not only the search which had been
carried out but also assailing the authority of the Assessing Officer to carry out the
assessments. The High Court did not accept the submissions of the respondents in so
far as they had challenged the validity of the search. The only issue on which the writ
petition was allowed and the assessments made in favour of two of the respondents
herein were quashed was that the Assessing Officer was the same Harinder Kumar
who conducted the search.
3. The High Court invoked the principle that a person could not be a judge in his own
cause to hold that the assessments could not have been carried out in respect of
respondents Nos. 2 and 4. It said (p. 748) :
"Herein the witness who had headed the raiding party for search in the house
of petitioners Nos. 2 and 4 acted not only as the Investigating Officer but a
quasi-judicial officer determining the liability to pay the income-tax. To that
extent we are convinced that the assessment order qua petitioners Nos. 2 and
4 and proceedings of assessment are liable to be quashed."
4 . As far as the other respondents are concerned the High Court noted that their
apprehension was unfounded since the Assessing Officer was not the authorised
person who carried out the search in respect of their premises. The Revenue
authorities have impugned the decision of the High Court before us. Nobody appeared
on behalf of the respondents when the matter has been argued by the Revenue
authorities yesterday and today.
5. According to the appellants the decision of the High Court should not be sustained

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gather the information and to assess the value of the information himself. The issue
as to the constitutional validity of a provision which permitted an examining board
not only to hold an inquiry but also to take action against doctors was raised before
the Supreme Court of United States in Harold Withrow v. Duane Larkin (43 L. Ed. 2d
712). In negating the challenge the court said;
"The contention that the combination of investigative and adjudicative
functions necessarily creates an unconstitutional risk of bias in administrative
adjudication has a much more difficult burden of persuasion to carry. It must
over come a presumption of honesty and integrity in those serving as
adjudicators; and it must convince that, under a realistic appraisal of
psychological tendencies and human weakness, conferring investigative and
adjudicative powers on the same individual poses such a risk of actual bias
or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented."
9 . It is true that there may be cases where the outcome of the assessment may be
influenced by the fact that the raiding Assessing Officer had himself in the course of
the raid been witness to any incriminating material against the assessee. The
Assessing Officer's decision on the basis of such material is not the final word in the
matter. The assessment order is appealable under the provisions of the statute itself
and ultimately by way of judicial review.
10. Finally, the courts cannot read in limitations to the jurisdiction conferred by the
statutes, in the absence of a challenge to the provision itself when the language of
the Act clearly allows for an ostensible violation of the principles of natural justice
including the principle that a person cannot be a judge in his own cause. In Union of
India v. Tulsiram Patel MANU/SC/0373/1985 : (1985)IILL J206SC , in recognition of
this principle this court held (page 1462 of AIR 1985 SC):
"Not only, therefore, can the principles of natural justice be modified but in
exceptional cases they can even be excluded. There are well-defined
exceptions to the nemo judex in causa sua rule as also to the audi alteram
partem rule. The nemo judex in causa sua rule is subject to the doctrine of
necessity and yields to it as pointed out by this court in J. Mohapatra and Co.
v. State of Orissa MANU/SC/0008/1984 : [1985]1SCR322 ."
11. Learned counsel also drew our attention to the fact that the assessments on the
basis of material recovered under Section 132 had to be completed within a period of
limitation prescribed under Section 158BE(1)(b). The last date for completion of the
assessments in the present case was October 31, 2000. The prayer of the
respondents for transfer of the case from the Assessing Officer on October 11, 2000,
to a new Assessing Officer in the circumstances was unacceptable and the assessment
by the said Harinder Kumar was unavoidable given the limited period left for
completing the assessment proceedings. The High Court has observed that this plea
had not been raised by the appellant. Perhaps the appellants are correct in submitting
that the fact speaks for itself. However, it is not necessary for us to give any final
view in the matter having held that the sections in the Act impose no limitation on
the Assessing Officer on the authorised officer being the same person and that it
could not be said that action taken pursuant to such statutory empowerment was
coloured, only by reason thereof, by any bias.
12. Ultimately, the question of bias will have to be decided on the facts of each case.

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MANU/SC/0495/2009
Equivalent Citation: 2009(1)ALD(C ri)773, 2009(2)ALT(C ri)364, 2009((2))ALT(C ri)364, 2009C riLJ2422, 2009(2)C rimes80(SC ),
JT2009(4)SC 640, 2009(4)KC C R2273, 2009(5)SC ALE100, (2009)11SC C 690, [2009]5SC R256

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 415 of 2002
Decided On: 31.03.2009
Appellants: Bhaskar Ramappa Madar and Ors.
Vs.
Respondent: State of Karnataka
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and A.K. Ganguly, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.B. Sanyal, Sr. Adv., Shanthakumar Mahale, Rajesh
Mahale and Harish, Advs
For Respondents/Defendant: Sanjay R. Hegde, A. Rohen Singh, Vikrant Yadav and
Nishant Mishra, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS IN WHICH SENTENCE AWARDED IS UPTO
FIVE YEARS
JUDGMENT
Arijit Pasayat, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Karnataka
High Court allowing the appeal filed by the respondent-State of Karnataka. Said
Criminal appeal was filed under Section 378(1) and (3) of the Code of Criminal
Procedure, 1973 (in short the 'Code'). The learned 3rd Additional Sessions Judge,
Dharwad, directed acquittal of the present appellants who faced trial for alleged
commission of offences punishable under Sections 304B, 306, 498A read with
Section 34 of the Indian Penal Code, 1860 (in short the 'IPC').
2. The prosecution version in a nutshell is as follows:
The accused No. 1 is the husband of Ratnavva (hereinafter referred to as the
'deceased') who was given in marriage to the accused No. 1 about 1 1/2
years prior to her death and during their marriage, the accused No. 1 was
given 11 tolas of gold and a cash of Rs. 10,000/- alongwith other utensils. In
spite of all this, the accused were ill-treating and harassing the deceased
Ratnavva coercing her to bring more dowry and accordingly a cheque of Rs.
10,000/- was given to the accused No. 1 by the mother of the deceased. But
in spite of that the accused did not stop the ill-treatment, and harassment to
the deceased Ratnavva. On account of constant harassment and ill treatment
to the deceased, they made the life of the deceased a miserable one which
abetted the deceased to commit suicide. The accused No. 1 is the husband of
the deceased, the accused Nos. 2 and 3 are the parents in law, the accused

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 Nos. 4 and 5 are the sisters in law and the accused N0.6 is the brother in law
of the deceased.
On the basis of information lodged, investigation was undertaken and on completion
thereof chargesheet was filed. As accused persons pleaded innocence, trial was held.
In order to substantiate its case, the prosecution has examined at the trial PWs.1 to
18 and got marked in evidence Ex.P1 to P15 and Mos.1 to 12. Investigation was
undertaken.
The trial Court held that the Investigating Officer should not have proceeded with the
investigation as he was the complainant and on that ground held the prosecution
version to be tainted. It also found that the evidence of the witnesses did not inspire
confidence.
Acquittal was challenged before the High Court, which on the other hand held that the
conclusions of the trial Court are erroneous.
3 . Learned Counsel for the appellants submitted that the High Court nowhere
recorded a finding that the conclusions of the trial Court were either perverse or not
supported by reasons.
4 . Learned Counsel for the respondent-State on the other hand supported the
judgment of the High Court.
5. So far as the desirability of the complainant undertaking investigation is concerned
there is no legal bar. The decisions of this Court in Bhagwan Singh v. The State of
Rajasthan MANU/SC/0094/1975 : 1976CriL J713 at para 18 andMegha Singh v. State
of Haryana MANU/SC/0466/1995 : 1995CriL J3988 at para 4 have to be confined to
the facts of the said cases. Merely because the complainant conducted the
investigation, that would not be sufficient to cast doubt on the prosecution version to
hold that the same makes the prosecution version vulnerable. The matter has to be
decided on case to case basis without any universal generalization.
6 . On the facts of the present case A-1 went to lodge the report. The S.I. (PW-17)
registered the case and on completion of investigation charge sheet was filed by
D.S.P.
7 . So far as appeals against acquittals are concerned, Chapter XXIX (Sections 372-
394) of the Code deals with appeals. Section 372 expressly declares that no appeal
shall lie from any judgment or order of a criminal court except as provided by the
Code or by any other law for the time being in force. Section 373 provides for filing
of appeals in certain cases. Section 374 allows appeals from convictions. Section 375
bars appeals in cases where the accused pleads guilty. Likewise, no appeal is
maintainable in petty cases (Section 376). Section 377 permits appeals by the State
for enhancement of sentence. Section 378 confers power on the State to present an
appeal to the High Court from an order of acquittal. The said section is material and
may be quoted in extenso:
378. Appeal in case of acquittal.--(1) Save as otherwise provided in Sub-
section (2) and subject to the provisions of Sub-sections (3) and (5), the
State Government may, in any case, direct the Public Prosecutor to present
an appeal to the High Court from an original or appellate order of acquittal
passed by any court other than a High Court, or an order of acquittal passed

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MANU/SC/0256/2004
Equivalent Citation: 2005(2)AC R1656(SC ), 2004(1)ALD(C ri)1006, 2004(4)ALT21(SC ), 2004(1)C LJ(SC )320, 2004C riLJ1819, JT2004(3)SC 633,
2004(2)RC R(C riminal)317, RLW2004(2)SC 248, 2004(3)SC ALE507, (2004)5SC C 223, [2004]1SC R330

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 359 of 2004 (Arising out of SLP (Crl.) No. 426 of 2002)
Decided On: 22.03.2004
Appellants:State rep. by Inspector of Police, Vigilance and Anti-Corruption,
Tiruchirapalli, Tamil Nadu
Vs.
Respondent:V. Jayapaul
Hon'ble Judges/Coram:
Ruma Pal and P. Venkatarama Reddi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R. Venkataramani, Sr. Adv., Ashok and P.N.
Ramalingam, Advs
For Respondents/Defendant: A.T.M. Rangaramanujam, Sr. Adv., V. Balaji, T.S. Santhi
and Rakesh K. Sharma, Advs.
JUDGMENT
P. Venkatarama Reddi, J.
1. Leave granted.
2. Whether the High Court was justified in quashing the criminal proceedings on the
ground that the police officer, who laid/recorded the FIR regarding the suspected
commission of certain cognizable offences by the respondent should not have
investigated the case and submitted the final report? That is the question which arises
for consideration in this appeal filed by the State.
3. On 9.9.1996, the Inspector of Police (Vigilance & Anti-Corruption), Tirucharapalli
on the basis of the information received that the respondent-accused was indulging in
corrupt practices by extracting money from the drivers and owners of the motor
vehicles while conducting check of the vehicles and making use of certain bogus
notice forms in the process, prepared the First Information Report, registered the
crime under Sections 420, 201 IPC and Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act. A copy of the FIR was submitted to the Court of
CJM-cum-Special Judge, Tirucharapalli. He then proceeded to take up investigation,
gathered information, examined the witnesses and filed the charge-sheet in the Court
together with a list of documents including the police notice books and hand-writing
experts' reports. The respondent was implicated for the offences under Sections 465,
468 IPC and Section 7 and 13(2) read with 13(1)(d) of P.C Act. The respondent-
accused then moved the High Court of Madras to quash the proceedings. The learned
Judge of the High Court, relying on the decision of this Court in Megha Singh v.
State of Haryana MANU/SC/0466/1995 : 1995CriL J3988 and two other decisions of
the Madras High Court, allowed the application and quashed the proceedings. This is
what the learned Judge observed:

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 "In view of the consistent rulings of the Supreme Court and of this Court, I
am obliged to hold that the very same police officer who registered the case
by lodging a first information ought not to have investigated the case and
that itself had caused prejudice to the accused."
4. We have no hesitation in holding that the approach of the High Court is erroneous
and its conclusion legally unsustainable. There is nothing in the provisions of the
Criminal Procedure Code which precluded the appellant (Inspector of Police,
Vigilance) from taking up the investigation. The fact that the said police officer
prepared the FIR on the basis of the information received by him and registered the
suspected crime does not, in our view, disqualify him from taking up the
investigation of the cognizable offence. A sup motu move on the part of the police
officer to investigate a cognizable offence impelled by the information received from
some sources is not outside the purview of the provisions contained in Sections 154
to 157 of the Code or any other provisions of the Code. The scheme of Sections 154,
156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in State of
U.P. v. Bhagwant Kishore MANU/SC/0066/1963 : 1964CriLJ140 .
"Section 154 of the Code prescribes the mode of recording the information
received orally or in writing by an officer in charge of a police station in
respect of the commission of a cognizable offence. Section 156 thereof
authorizes such an officer to investigate any cognizable offence prescribed
therein. Though ordinarily investigation is undertaken on information
received by a police officer; the receipt of information is not a condition
precedent for investigation. Section 157 prescribes the procedure in the
matter of such an investigation which can be initiated either on information
or otherwise. It is clear from the said provisions that an officer in charge of a
police station can start investigation either on information or otherwise."
5. In fact, neither the High Court found nor any argument was addressed to the effect
that there is a statutory bar against the police officer who registered the FIR on the
basis of the information received taking up the investigation.
6 . Though there is no such statutory bar the premise on which the High Court
quashed the proceedings was that the investigation by the same officer who 'lodged'
the FIR would prejudice the accused inasmuch as the investigating officer cannot be
expected to act fairly and objectively. We find no principle or binding authority to
hold that the moment the competent police officer, on the basis of information
received, makes out an FIR incorporating his name as the informant, he forfeits his
right to investigate. If at all, such investigation could only be assailed on the ground
of bias or real likelihood of bias on the part of the investigating officer. The question
of bias would depend on the facts and circumstances of each case and it is not proper
to lay down a broad and unqualified proposition, in the manner in which it has been
done
by the High Court, that whenever a police officer proceeds to investigate after
registering the FIR on his own, the investigation would necessarily be unfair or
biased. In the present case, the police officer received certain discreet information,
which, according to his assessment, warranted a probe and therefore made up his
mind to investigate. The formality of preparing the FIR in which he records the
factum of having received the information about the suspected commission of the
offence and then taking up the investigation after registering the crime, does not, by
any semblance of reasoning, vitiate the investigation on the ground of bias or the like

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MANU/SC/0001/2020
Equivalent Citation: AIR2020SC 303, 2020 (2) ALD(C rl.) 14 (SC ), 2020 (110) AC C 613, 2020(1)C GLJ353, 2020(1)J.L.J.R.337, 2020(1)PLJR381,
2020(1)RC R(C riminal)576, (2020)2SC C 563

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 512 of 2009
Decided On: 06.01.2020
Appellants: Surinder Kumar
Vs.
Respondent: State of Punjab
Hon'ble Judges/Coram:
N.V. Ramana, R. Subhash Reddy and B.R. Gavai, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mahabir Singh, Sr. Adv., Preeti Singh, D. Mahesh
Babu, Gagan Deep Sharma, Swati Jindal and Amit K. Nair, Advs.
For Respondents/Defendant: Ranjeeta Rohatgi, Adv.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
R. Subhash Reddy, J.
1. This Criminal Appeal is filed by the sole Accused, aggrieved by the judgment dated
22.04.2008 passed in Criminal Appeal No. 706-SB of 1999 passed by the High Court
of Punjab and Haryana at Chandigarh.
2. The Appellant herein was convicted for the offence punishable Under Section 18 of
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act, 1985'),
vide the judgment dated 20.05.1999, passed by the Special Judge, Ferozepur, for
offence Under Section 18 of NDPS, 1985 and was sentenced to undergo rigorous
imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- (Rupees
One Lakh) in default of payment of the same, to undergo rigorous imprisonment for
another period of one year.
3. The case of the prosecution, in brief, is that on 12.09.1996, Devi Lal, HC (PW-1),
Darbara Singh, S.I.(PW-2), along with other police officials were going from Dalbir
Khera towards Waryam Khera, in a private jeep, on patrol duty, and when they
reached near the bridge of Canal minor, the Appellant-Accused was seen coming from
the opposite direction, carrying a bag in his right hand. On seeing the police party,
the Appellant-Accused turned towards the Southern bank of the canal, but was
apprehended on suspicion. The search of the bag, carried by the Accused, in the
presence of ASP, Abohar, who was called to the spot, in accordance with the
provisions of the law, resulted into recovery of 1 kg 750 grams of opium. Upon
seizure, 2 samples of 10 grams each, were separated and the remaining opium was
put into the same bag. The samples were duly sealed and taken into possession.

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summoned number of times but either service was not effected or as and when he
was served, he sent a request for exemption from personal attendance stating valid
reasons. Further, it appears that the High Court has issued directions to the Trial
Court to decide the case before 30.04.1999. As much as S.K. Asthana, ASP was not
examined by 30.04.1999, a request for an extension was sought by the Special
Judge, Ferozepur and it was adjourned to 17.05.1999. Even by 17.05.1999, the ASP
could not be served as he was on leave. In view of such reasoning assigned by the
Trial Court, as well as the High Court, merely because S.K. Asthana, ASP was not
examined, it cannot be said that prosecution has failed to prove its case. It is clear
from the evidence on record that he was summoned at the time of search and seizure
and only in his presence search was conducted, as such, there is no violation of
Section 50 of the NDPS Act.
14. Further, it is contended by learned senior Counsel appearing for the Appellant
that no independent witness was examined, despite the fact they were available. In
this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-
1), during the course of cross-examination, has stated that efforts were made to join
independent witnesses, but none were available. The mere fact that the case of the
prosecution is based on the evidence of official witnesses, does not mean that same
should not be believed.
1 5 . The judgment in the case of Jarnail Singh v. State of Punjab
MANU/SC/0480/2011 : (2011)3 SCC 521, relied on by the counsel for the
Respondent-State also supports the case of the prosecution. In the aforesaid
judgment, this Court has held that merely because prosecution did not examine any
independent witness, would not necessarily lead to conclusion that Accused was
falsely implicated. The evidence of official witnesses cannot be distrusted and
disbelieved, merely on account of their official status. In the case of State, Govt. of
NCT of Delhi v. Sunil and Anr. MANU/SC/0735/2000 : (2001)1 SCC 652 it was
held as under:
It is an archaic notion that actions of the Police Officer, should be
approached with initial distrust. It is time now to start placing at least initial
trust on the actions and the documents made by the Police. At any rate, the
Courts cannot start with the presumption that the police records are
untrustworthy. AS a presumption of law, the presumption would be the other
way round. The official acts of the Police have been regularly performed is a
wise principle of presumption and recognized even by the Legislature.
16. Learned Counsel also placed reliance on the judgment of this Court in the case of
Mohan Lal MANU/SC/0857/2018 : (2018)17 SCC 627 to support his argument that
informant and investigator cannot be the same person. But in the subsequent
judgment, in the case of Varinder Kumar MANU/SC/0173/2019 this Court held that
all pending criminal prosecutions, trials and appeals prior to law laid down in Mohan
Lal MANU/SC/0857/2018 : (2018)17 SCC 627, shall continue to be governed by
individual facts of the case.
17. Having regard to oral and documentary evidence placed on record, we are in
agreement with the findings recorded by the Trial Court and High Court. From the
evidence on record in this case the prosecution has proved the guilt of the Appellant
beyond reasonable doubt. The conviction recorded and the sentence imposed is in
conformity with the provisions of law and evidence on record, thus no interference is
called for. Accordingly, this appeal is devoid of merits, and the same is dismissed.

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MANU/SC/0111/2010
Equivalent Citation: 2010(2)AC R1327(SC ), 2010(2)ALD(C ri)339, 2010 (69) AC C 299, 2010ALLMR(C ri)1323(SC ), 2010C riLJ1899,
JT2010(2)SC 185, 2010(1)N.C .C .651, 2010(2)RC R(C riminal)132, 2010(2)SC ALE362, (2010)3SC C 746, [2010]2SC R785

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 436 of 2009
Decided On: 15.02.2010
Appellants: Ajmer Singh
Vs.
Respondent: State of Haryana
Hon'ble Judges/Coram:
P. Sathasivam and H.L. Dattu, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R.S. Dhull, Sanjay Jha and Dharam Bir Raj Vohra,
Advs
For Respondents/Defendant: Manjit Singh, AAG and Kamal Mohan Gupta, Adv.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
H.L. Dattu, J.
1 . This appeal, is directed against the judgment and order of the High Court of
Punjab and Haryana in Criminal Appeal No. 926-SB of 1997 dated 7.12.2007,
whereby and where under, the High Court has upheld the conviction of the appellant
by the Additional Sessions Judge, Kurukhestra, vide judgment and order dated
5.11.1997/6.11.1997 in Sessions Case No. 14 of 1996, for offences punishable under
Section 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985.
2 . The factual matrix of the case is as under: That on 24.1.1996, ASI Maya Ram
accompanied by other police officials, namely, Head Constable Raja Ram and
Constables Gian Chand and Shyam Singh was on patrol duty. The said police party
was present near the Markanda Bridge when the accused along with another person
Randhir Singh were seen coming from the side of Ismailabad. On seeing the police
party, the appellant and other person Randhir Singh made an attempt to turn back
and escape. However, the police over-powered them as their activities were found
suspicious. Thereafter, they were served with a notice under Section 50 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the
Act') vide memo (Ex. PD) giving an option to them to be searched either by the
Gazetted officer or the Magistrate. They signed the memo by making the choice to be
searched by the Gazetted officer and they were arrested by the Head Constable Raja
Ram and C-1 Gian Chand. Both of them were produced before the then D.S.P.,
Pehowa, Shri Paramjit Singh Ahalawat who is a Gazetted Officer, and on his direction,
the bag that they were carrying was searched before him. The bag that was carried by
the appellant on his shoulder was found to be containing 500 grams of charas

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decision mentioned above, to facts of present case, it is clear that the compliance of
Section 50 of the Act is not required. Therefore, the search conducted by the
investigation officer and the evidence collected thereby, is not illegal. Consequently,
we do not find any merit in the contention of the learned Counsel of the appellant as
regards the non-compliance of Section 50 of the Act.
16. The learned Counsel for the appellant has submitted that the evidence of the
official witness cannot be relied upon as their testimony, has not been corroborated
by any independent witness. We are unable to agree with the said submission of the
learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3
Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5
Maya Ram, which is on record, that efforts were made by the investigating party to
include independent witness at the time of recovery, but none was willing. It is true
that a charge under the Act is serious and carries onerous consequences. The
minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In
this situation, it is normally expected that there should be independent evidence to
support the case of the prosecution. However, it is not an inviolable rule. Therefore,
in the peculiar circumstances of this case, we are satisfied that it would be travesty of
justice, if the appellant is acquitted merely because no independent witness has been
produced. We cannot forget that it may not be possible to find independent witness
at all places, at all times. The obligation to take public witnesses is not absolute. If
after making efforts which the court considered in the circumstances of the case
reasonable, the police officer is not able to get public witnesses to associate with the
raid or arrest of the culprit, the arrest and the recovery made would not be
necessarily vitiated. The court will have to appreciate the relevant evidence and will
have to determine whether the evidence of the police officer was believable after
taking due care and caution in evaluating their evidence. In the present case, both
the trial court and the High Court by applying recognized principle of evaluation of
evidence of witnesses has rightly come to the conclusion that the appellant was
arrested and Charas was recovered from the possession of the appellant for which he
had no licence. We find no good reason to differ from that finding.
17. The learned Counsel for the appellant further contends that the sentence of ten
years rigorous imprisonment deserves to be modified and the accused deserves to be
acquitted on the ground of parity as the sentence of other accused Randhir Singh,
who was searched on 24.1.1996 and convicted by the additional Session Judge for
being in possession of one Kilogram of charas, without any permit or license, has
been reduced to that already suffered by him.
18. The principle of parity in criminal case is that, where the case of the accused is
similar in all respects as that of the co-accused then the benefit extended to one
accused should be extended to the co-accused. With regard to this principle, it is
important to mention the observation of this Court in the case of Harbans Singh v.
State of Uttar Pradesh and Ors. MANU/SC/0072/1982 : (1982) 2 SCC 101. In that
case it was held, that, in view of commutation of death sentence of one of the
accused, who was similarly placed as that of appellant, award of death sentence to
appellant was unjustified and, hence, the death sentence of the appellant was stayed
till the decision of the President on commutation of sentence. An important
observation of this Court on the point need to be noticed at this stage:
it will be a sheer travesty of justice and the course of justice will be
perverted, if for the very same offence, the petitioner has to swing and pay
the extreme penalty of death whereas the death sentence imposed on his co-

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MANU/SC/0479/2015
Equivalent Citation: 2015V AD (S.C .) 417, 2015(3)AJR689, 2015 (2) ALD(C rl.) 392 (SC ), 2015 (90) AC C 712, 2015 (3) ALT (C rl.) 236 (A.P.),
2015(3)BomC R(C ri)296, II(2015)C C R232(SC ), 2015C riLJ3282, 2015(2)C rimes346(SC ), 2015(3)J.L.J.R.84, 2015 [3] JC C [Narcotics] 100, 2016-1-
LW(C rl)508, (2015) 2 MLJ(C rl) 631 (SC ), 2016(1)N.C .C .680, 2015(II)OLR(SC )448, 2015(3)PLJR268, 2015(2)RC R(C riminal)834,
2015(5)SC ALE430, (2015)12SC C 247, 2015 (9) SC J 184, 2015(2)UC 927

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 682 of 2015 (Arising out of S.L.P. (Crl.) No. 458 of 2013)
Decided On: 21.04.2015
Appellants: Makhan Singh
Vs.
Respondent: State of Haryana
Hon'ble Judges/Coram:
T.S. Thakur and R. Banumathi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Chanchal Kumar Ganguli and Naramada, Advs.
For Respondents/Defendant: Rahul Verma, AAG and Vishwa Pal Singh, Adv.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO DRUGS AND COSMETICS,
NDPS ACT
JUDGMENT
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,
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 NDPS Act')
and also the sentence of imprisonment of ten years along with a fine of 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-PW 1 and Gamdur Singh-DW 2, saw
the suspicious 'fitter-rehra' (a vehicle) driven by the Appellant. Police intercepted the
vehicle and questioned the Appellant 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 Magistrate and the Appellant declined to be searched by
them and a 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 seized the bags, took
sample of 200 grams from each of the bag and sealed them separately, and then
sealed the remaining quantity in separate parcels and deposited the same with MHC.

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assumptions than on acceptable basis. When PW 1 and DW 2 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 well as the High Court mainly
relied on the testimony of official witnesses who made the recovery, i.e. H.C. Suraj
Mal-PW 2 and Inspector Raghbir Singh-PW 6, and found them sufficiently
strengthening the recovery of the possession from the Appellant. In our considered
view, the manner in 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 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 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 PW 1 and another independent witness examined as
DW 2 has spoken in one 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.
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
allegedly driven by the Appellant and, thus, Section 50 of the NDPS Act 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 evidence either by
examining the neighbours or others to bring home the point that the Appellant was
the owner or possessor of the vehicle. PW 6 admitted in his cross-examination that
signature or thumb impression of the Appellant was not 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.
12. Jaswant Singh, who is a Sarpanch of the village and was examined as DW 1, 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 has taken the specific
stand that the Appellant was taken from his house by the police and that stand has
been corroborated by the testimony of DW 1, 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/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 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 only he is to be produced before either of them. In Ext. PA/1,

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