2015 (11) TMI 695 - SC - Indian Laws

Conviction of appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 - Appellant found in possession of poppy husk - Held that - There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. - no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad (dead) by LRs. vs. State of M.P., 2007 (8) TMI 727 - SUPREME COURT 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 the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in the prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence. From the evidence led by the prosecution, it has been proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of the thirty three bags of poppy husk in the trolley attached to the tractor. Upon appreciation of evidence, High Court rightly reversed the acquittal and convicted the appellant under Section 15 of the NDPS Act. The occurrence was in the year 1990 and the appellant has suffered a protracted proceeding of about twenty five years. In the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant is reduced from twelve years to ten years. - Decided partly in favour of Appellant.

Summary

Issues Involved:
1. Credibility of the sole witness (Ram Singh-ASI).
2. Non-examination of Chander Singh-SI.
3. Conscious possession of the contraband by the appellant.
4. Presumption under Section 35 of the NDPS Act.
5. Appellant's defense and alleged false implication.

Issue-Wise Detailed Analysis:

1. Credibility of the Sole Witness (Ram Singh-ASI):
The prosecution's case relied heavily on the testimony of Ram Singh-ASI, the sole witness. Despite rigorous cross-examination, his evidence remained consistent and unshaken. The High Court found his testimony credible, noting that the absence of independent witnesses at odd hours of the night was satisfactorily explained. The Supreme Court upheld this view, emphasizing that the testimony of police officials can be sufficient for conviction if it inspires confidence and is found trustworthy. The court referenced previous judgments to assert that the credibility of police witnesses should not be discounted merely due to their official status.

2. Non-examination of Chander Singh-SI:
The defense argued that the non-examination of Chander Singh-SI, who led the Nakabandi and prepared the rukka, was detrimental to the prosecution's case. The Supreme Court acknowledged that while it is preferable to examine the investigating officer, the non-examination does not automatically prejudice the accused or undermine the prosecution's case. Since Ram Singh-PW-1 was part of the police party and signed all recovery memos, his testimony was deemed sufficient. The court found no prejudice caused to the appellant due to the non-examination of Chander Singh-SI.

3. Conscious Possession of the Contraband by the Appellant:
The appellant was found in possession of thirty-three bags of poppy husk, each weighing forty kilograms. The court noted that the appellant, being the driver of the tractor, must have been aware of the contents of the bags. The physical possession of the contraband was established, shifting the burden to the appellant to prove that he was not in conscious possession, as per Section 35 of the NDPS Act.

4. Presumption under Section 35 of the NDPS Act:
Section 35 of the NDPS Act presumes the existence of a culpable mental state unless the accused can prove otherwise. The court explained that the burden of proof on the accused can be discharged through various means, including relying on prosecution evidence or presenting additional evidence. The appellant failed to provide any satisfactory explanation or evidence to rebut the presumption of conscious possession.

5. Appellant's Defense and Alleged False Implication:
The appellant claimed false implication and pointed to another case (FIR No.235) involving Bhoop Singh, which resulted in acquittal. The Supreme Court found that the acquittal of Bhoop Singh did not affect the credibility of the prosecution's case against the appellant. The court noted that the appellant did not provide any plausible reason for the police to falsely implicate him, especially given the large quantity of contraband involved.

Conclusion:
The Supreme Court upheld the conviction of the appellant under Section 15 of the NDPS Act but reduced the sentence from twelve years to ten years, considering the protracted legal proceedings. The appellant's bail was canceled, and he was ordered to be taken into custody to serve the remaining sentence.