Bahadur
Singh Vs. State of Madhya Pradesh & Anr [2001] Insc 633 (4 December 2001)
U.C.
Banerjee & Y.K. Sabharwal Y.K. Sabharwal, J.
The
appellant, Bahadur Singh and one Amreek Singh were convicted by the Special
Court constituted under the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short `the Act') having been found guilty for the offence under
Section 8 read with Section 15 of the Act. Both of them were sentenced to 10
years' rigorous imprisonment and a fine of Rs.1 lakh each. The High Court has,
however, allowed the appeal of Amreek Singh. His conviction and sentence has
been set aside. The conviction and sentence of Bahadur Singh having been
maintained, he is in appeal before us on grant of special leave.
Bahadur
Singh was a driver and Amreek Singh a cleaner of a truck. The case of the
prosecution is that information had been received that the poppy straw is being
carried in the said truck. On search of the truck four polythene bags
containing poppy straw weighing 3.900 kgs. was found. After completion of the
formalities, the accused were tried which resulted in the conviction and
sentence as aforesaid.
According
to the prosecution there were two independent witnesses in whose presence the
poppy straw was recovered and seized. The prosecution, however, examined only
one of them, namely, Pawan Kumar Sharma, PW1. PW1 did not support the
prosecution and was declared hostile. He though admitted his signatures as a
punch witness to the documents but denied that in his presence 3.900 kgs. of
poppy straw was recovered and seized from the driver, Bahadur Singh and
cleaner, Amreek Singh. The conviction was, however, based on the sole testimony
of Investigating Officer, Head Constable Gontiya, PW3.
Learned
counsel for the appellant submits that there is no reliable evidence to
establish the recovery and seizure of the contraband and on the facts and
circumstances of the case the conviction on the sole testimony of PW3 is
unwarranted. There is substance in the submission.
There
are serious material discrepancies in the evidence in respect of recovery and
seizure. PW4, a constable, stated in the cross-examination that when Pawan
Kumar Sharma reached Kabir Chowk where the truck was apprehended PW3 told him
that there is poppy straw in the truck and when they reached there, PW3 had
already taken the search of the truck. There are also serious discrepancies in
respect of the deposit of the seized poppy straw in the Maalkhana. The deposit
is shown to have been made under Entry No.68-A dated 11th October, 1997. The date of the incident is 10th October, 1997. The Entry above Entry 68-A, is
Entry No.68 dated 15th
October, 1997. The
Entry after Entry 68-A, is Entry No.69. That is also dated 15th October, 1997. The concerned police official who
made these entries was not examined by the prosecution but was examined as a defence
witness. His explanation to the aforesaid entries was that he forgot to make an
Entry of the seized material in the Maalkhana register and made the entry later
after `15th day'. The explanation is far from satisfactory. Assuming he forgot
to make the entry, that then cannot be made by interpolation as aforesaid. The
entry could be made at its appropriate place under the correct date on which it
was actually made and delay in making the entry could be explained. He further
deposed that since no cash was deposited he did not make any Entry for receipt
of Rs.27,000/- connected with the crime. In respect of this amount, PW3, the
Investigating Officer, in cross-examination stated as under:
"During
arrest, 54 currency note of Rs.500 denomination each were seized from Bahadur
Singh, which was Rs.27,000/- in all and it is true. It is wrong to say that
Rs.27,000/- were never returned to Bahadur Singh. Head Moharrir Jagat Ram of
police station has got the receipt of the refund of that money. It is wrong to
say that for harassing accused Bahadur Singh and Amreek Singh, I entered in
their truck and searched the truck unnecessarily and the accused were
unnecessarily arrested. It is wrong to say that Rs.27,000/- were not returned
to accused persons." However, on the date when the case was fixed for
judgment before the trial judge, an application was filed by PW3 stating that
he had not seized any amount from accused Bahadur Singh and was confused when
he admitted the seizure of the amount of Rs.27,000/-. According to the
appellant, PW3 had seized that amount and not returned. In respect of this
controversy, the trial judge said as under:
"I
have very carefully examined Ex. P-15, the arrest memo of accused Bahadur Singh
and also seen Ex.P-15-C, the photocopy of Ex.P-15, which was later on filed by
H.C. Gontiya. Certainly in Ex.P-15-C the entries regarding the currency notes
are not there, in both these documents a vertical line is there in the space
left for the particulars to be filled regarding the seizure. This type of line
is usually drawn when there is nothing to be entered. Although, H.C. Gontiya
has not proved that who was the person who wrote the concerning document and
made entries in the diary as R.N. Sharma PW-5 denied that he wrote the Ex.P015,
still I think that H.C. Gontiya could not be held guilty for engulfing 27,000/-
of the accused. The reasons for this are as follows :
17.
First, if one compares the writing in Ex.P-15 carefully, one would find, that the
entries regarding the description of amount and currency notes are not written
by the same person, who wrote and made rest of the entries in Ex.P-15. Figure
(4) of 54 is quite different than in figures (4) of 451/97 on the very first
column and there is no doubt that these two figures of (4) are not written by
the same persons. Apart from this, I have also carefully compared the writing
of case diary written on 10.10.97. The writing in Ex.P-15 and this appears to
be written by same person. In the case diary of 10.10.97, the fact of seizure
of 27,000/- rupees is not mentioned which in ordinary course nature should have
been mentioned. Apart from this, the said amount was seized on 10.10.97, the
date on which the accused Bahadur Singh was arrested but for the first time the
allegation was leveled against the I.O. on 29.09.98 the date on which the
accused were examined by the court under Section 313 of the Cr.P.C. for
complete one year the accused remained dormant and did not made any hue and cry
which in ordinary course of nature should have been made because the
Rs.27,000/- is not a small amount and the person to whom they belonged should
have made some effort to get the amount in supurdnama as has been done for the
truck. So far all these reasons I hold that the entries in the Ex.P-15
regarding the amount was made after the challan was completed and filed."
The appellant cannot be made to suffer on prosecution failure to prove as to
who made the entries in exhibit p-15 regarding the amount and as to when the
same were made.
Under
the aforesaid circumstances the appellant cannot be convicted on the sole
testimony of police witnesses, PW3. The question of applicability of Section 35
of the Act will not arise in the present case when the recovery itself is doubtful.
The appellant had disputed the recovery of contraband. There are serious
discrepancies in its recovery, seizure and deposit in the Maalkhana. The
prosecution has thus failed to prove its case beyond all reasonable doubts
against the appellant who is accordingly entitled to benefit of doubt.
For
the foregoing reasons, we set aside the judgment of the High Court as well as
of the Special Court and allowing the appeal, acquit the
appellant.
.........................J.
[U.C. Banerjee]
........................J.
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