2015 (5) TMI 1135 - SC - Indian Laws

Offence punishable u/s 15 the NDPS Act - sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ₹ 1 lakh each and, in default of payment of fine, to suffer rigorous imprisonment for a further period of one year - Held that - At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence.

Issues Involved:
1. Test Identification Parade
2. Conscious Possession
3. Compliance with Section 50 of the NDPS Act
4. Examination of Independent Witnesses

Issue-Wise Detailed Analysis:

1. Test Identification Parade:
The appellants argued that no test identification parade was conducted, which was crucial for establishing their identity. The court noted that the witnesses, PW-2 and PW-3, had identified the accused in court and had seen them in torchlight during the incident. The court referenced several precedents, including *Matru v. State of U.P.* and *Malkhan Singh v. State of M.P.*, emphasizing that identification parades are not substantive evidence but merely assist the investigation. The court concluded that the in-court identification by witnesses, despite the absence of a test identification parade, was credible and sufficient.

2. Conscious Possession:
The appellants contended they were unaware of the contents of the bags in the truck. The court observed that the accused were present in the truck carrying 110 bags of poppy husk and fled when the police stopped the vehicle, indicating their awareness of the illegal contents. The court cited *Madan Lal v. State of H.P.* and *Dharampal Singh v. State of Punjab*, explaining that "possession" includes both physical and constructive control with awareness (animus). The court held that the appellants' actions and presence demonstrated conscious possession of the narcotics.

3. Compliance with Section 50 of the NDPS Act:
The appellants argued non-compliance with Section 50, which mandates informing the accused of their right to be searched before a magistrate or gazetted officer. The court clarified that Section 50 applies to personal searches, not to searches of vehicles or containers, referencing *Megh Singh v. State of Punjab* and *State of H.P. v. Pawan Kumar*. Since the narcotics were found in a truck, the court ruled that Section 50 was not applicable, and thus, there was no violation.

4. Examination of Independent Witnesses:
The appellants highlighted the non-examination of independent witnesses, Labh Singh and Harvinder Singh, by the prosecution. The court noted that these witnesses were examined as defense witnesses, indicating they might have been influenced by the defense. The court cited *State (Govt. of NCT of Delhi) v. Sunil*, asserting that the reliability of police officers' testimony should not be dismissed solely due to the absence of independent witnesses. The court found the prosecution's evidence credible and trustworthy despite the non-examination of the said witnesses.

Conclusion:
The Supreme Court dismissed the appeal, affirming the conviction and sentence. The court found no merit in the appellants' arguments regarding the test identification parade, conscious possession, compliance with Section 50 of the NDPS Act, and the non-examination of independent witnesses. The evidence presented by the prosecution was deemed credible and sufficient to uphold the conviction.

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