Conviction can be based solely on the testimony of inspiring testimony of official witness

The legal position settled provides that a conviction can be based solely on the testimony of official witnesses subject to a condition that the evidence of such official witnesses must inspire confidence.

High Court vide its impugned finding affirmed the conviction of Appellant in the instant petition before Supreme Court under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

It was the prosecution version that the police officials during patrolling got suspicious of ‘fitter-rehra’ (a vehicle) driven by the Appellant and after intercepting the same questioned the Appellant about his whereabouts and found some dubious bags lying in the vehicle. Before searching the bags, police asked the appellant if he instead of being searched by police whether would wish to be searched by a Gazetted Officer or a Magistrate and the appellant declined to be searched by them and a consent memo was drawn. Police, then in the presence of independent witnesses conducted the search and recovered three bags containing commercial quantity of poppy husk (120 kgms.) from the Appellant’s vehicle. The bags were seized and samples were taken for chemical testing. After the completion of investigation, police laid the charge-sheet against the Appellant under Section 15 of NDPS Act. Sessions Court, after considering the evidence held the Appellant guilty beyond all reasonable doubt and convicted him under Section 15 of the NDPS Act. High Court in appeal held that the evidence of police officials was unimpeachable and vide impugned judgment confirmed the conviction of the appellant

Appellant on the other hand contended that he has been falsely implicated in the case and infact he was brought from his house and was put behind the bars apart from the fact that prosecution case was based solely on the testimony of official witnesses on which much weightage ought not to have been attached more so by discarding the testimony of the concerned defence witnesses who did not supported the prosecution story and accordingly it cannot be held that the prosecution proved its case beyond reasonable doubt. Mandatory provisions under Sections 50 and 52 of the NDPS Act were also stated to be not complied with.

The Supreme Court observed that 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 and found them sufficiently strengthening the recovery of the possession from the Appellant. It was held that the manner in which the alleged recovery was made does not inspire confidence and undue credence was given to the testimony of official witnesses, who are generally interested in securing the conviction. Independent witnesses may not be available at all places at all times and they 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. It was reiterated that the legal position settled provides that a conviction can be based solely on the testimony of official witnesses subject to a condition that the evidence of such official witnesses must inspire confidence. In the present case independent witnesses were available and it was stated by them that the accused person was taken from his residence. In such circumstances, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casted doubt on the recovery and the genuineness of the prosecution version.

Further, the prosecution misdirected itself by unnecessarily focusing on Section 50 of the NDPS Act, when the fact was that the recovery has been made not from the person of the appellant but from the vehicle 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 vehicle. Despite the fact that vehicle in question was seized, the prosecution did not adduce 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. The Courts below erred in attributing to the appellant the onus to prove that wherefrom the vehicle had come, especially when its ownership/ possession was not proved by the prosecution.

When the defence also has taken a specific stand that the appellant was taken from his house by the police and that stand was corroborated by the testimony of other defence witness, the prosecution ought to have adduced cogent evidence to prove that the vehicle in question failure whereof would favour the appellant.

The question whether or not the safeguards provided in Section 50 were observed would be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial. Compliance with Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying ought to be searched.

In the present case, since the vehicle was searched and the contraband was seized from the vehicle, compliance with Section 50 of the NDPS Act was not required. In the absence of independent evidence connecting the appellant with the vehicle in question, mere compliance with Section 50 of the NDPS Act by itself would not be sufficient to establish the guilt of the appellant.

It was accordingly held that when the independent witnesses did not supported the prosecution case and the recovery of the contraband could not be satisfactorily proved, conviction of the appellant under Section 15 of the NDPS Act was not sustainable.

[Makhan Singh vs. State of Haryana]
(SC, 21.04.2015 – Criminal Appeal No. 682 of 2015)