Recovery From Accused Must Be Established To Raise Presumption U/Sec 54 NDPS Act : Supreme Court

The Supreme Court observed that to raise a presumption under Section 54 of NDPS Act, it must first be established that a recovery was made from the accused.

The bench of Justices Indira Banerjee and V. Ramasubramanian observed thus while allowing an appeal filed by an accused who was concurrently convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 

One of the contentions raised in the appeal was that that the independent witnesses did not support the case of the prosecution, thereby leaving the testimony of investigating officer uncorroborated.  While considering this argument, the bench noticed that the independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice. The court observed:

"But if the Court has ­­ (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats."

The court, referring to evidence on record, observed that, independent witnesses who turned hostile, not only denied having witnessed anything, but also came up with a plausible explanation as to how their signatures found place in the documents. The case on hand is not a routine, run ­of ­the ­mill matter where independent witnesses are won over and they had no explanation to offer about their signatures in the Panchanama, the court observed.

"it is clear that the I.O. examined as PW­7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents.. In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW­7.", the bench added.

While allowing the appeal and acquitting the accused, the bench observed:

"It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co­accused."

Case details

Sanjeet Kumar Singh @ Munna Kumar Singh vs State of Chhattisgarh | 2022 LiveLaw (SC) 724 | CrA 871 OF 2021 | 30 August 2022 | Justices Indira Banerjee and V. Ramasubramanian

Counsel: Advocate Somnath Padhan for appellant, Deputy AG Sourav Roy for respondent- State

Headnotes

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 54 - Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. (Para 33A)

Narcotic Drugs and Psychotropic Substances Act, 1985 - Independent witness -Independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice - But if the Court has ­­ (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy - If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards - Corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. (Para 18)

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