Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. The submission made by learned counsel for the appellant – Satnam Singh5 that the prosecution failed to establish the underlying facts of possession of the contraband by Satnam Singh5 and therefore, the burden of proof could not have shifted to the accused, is found to be devoid of merits having regard to the evidence placed on record by the prosecution. The prosecution was successful in establishing the fact that it was the appellant – Satnam Singh5 who was driving the car9, when he was accosted at the spot where the naka was laid by the NCB Offi cers on the relevant date. A photocopy of the registration certifi cate of the car9 was recovered on a search of the appellant – Satnam Singh5. He was the owner of the car 9. The car9 was searched by the NCB Offi cers in the presence of two independent witnesses. The contraband was recovered from the car9 being driven by the appellant – Satnam Singh5 in the presence of the independent witnesses and P.K. Sharma, a Gazetted Offi ce25, who was part of the NCB team. Even though one of the two independent witnesses [Mukesh Kumar] had turned hostile and was dropped by the prosecution, the testimony of the other independent witness [Sonu8] was consistent and nothing material could be elicited by the accused during his cross-examination.
18. Through the deposition of the Chemical Examiner [S.K. Mittal22], the prosecution successfully proved the report20 submitted by him stating inter alia that on testing the samples18, the substances drawn from the bags recovered from the car9 of the appellant – Satnam Singh5, were heroin. The samples18 drawn and sealed were found untampered and the testimony of Constable Balwinder Kumar10 corroborated the fact that he had carried the samples18 with him and deposited them with the CRCL, New Delhi on 14th December, 2005 with all the seals intact.
19. Given the aforesaid narrative, we are of the opinion that the prosecution was able to discharge the onus cast on it to prove the foundational facts. Thus, the initial burden of proving that the appellant – Satnam Singh5 had the knowledge that the car9 owned and being driven by him at the relevant point in time was being used for transporting narcotics, stood discharged. Once it is concluded that the prosecution had produced adequate evidence to prove beyond reasonable doubt that the accused – Satnam Singh5 had the knowledge, the presumption contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had a culpable mental state for indicting him for the off ence for which he had been charged.
20. As has been observed by this Court in the case of Ram Avatar alias Rama40 (supra), that possession of the contraband is a sine qua non to secure a conviction under Section 21 of the NDPS Act and that such a contraband article should be recovered in accordance with the provisions of Section 50 of the NDPS Act, being a statutory safeguard favouring the accused; otherwise the recovery itself shall stand vitiated in law.
21. The argument advanced on behalf of the appellant – Satnam Singh5 that both the courts below have erred in discarding the defence taken by him to the eff ect that it was Sonu8 who was the real culprit and was apprehended by the NCB offi cers with the contraband, but he was let off on bribing the NCB offi cers, does not meet the test of preponderance of probability and has rightly been disbelieved by both the courts in the absence of any corroboration through cogent evidence. (f) PLEA OF THE ACCUSED BEING IN THE CUSTODY OF THE NCB MUCH BEFORE THE NAKA WAS LAID
22. Another plea taken by the appellant – Satnam Singh5 is that he was in the custody of the NCB offi cers much before the point in time when the naka was laid on 11th December, 2005. The deposition of witness produced by him, Soravdeep Singh19 [DW-1] to substantiate that a call was made from his mobile number at 09.54 PM on 11th December, 2005 when he had already been detained by the NCB offi cers, to a landline number installed BALWINDER SINGH (BINDA) v. THE NARCOTICS CONTROL BUREAU [HIMA KOHLI, J.] in the Offi ce of the Zonal Director at Chandigarh, was not of any assistance as the mobile phone bills summoned by the appellant were not proved in accordance with law. The trial Court observed that the bill in question46 was only a computer-generated one. The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant – Satnam Singh5 as belonging to him, stood in his name. We see no reason to take a diff erent view.
23. Reliance placed by learned counsel on the decisions in Dudh Nath Pandey v. State of Uttar Pradesh47, State of Haryana v. Ram Singh48, Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat49 and Jumi and Others v. State of Haryana50 to urge that defence witnesses are entitled to equal treatment with those produced by the prosecution and diff erent yardsticks cannot be prescribed for prosecution witnesses as compared to defence witnesses is a well-settled principle of criminal jurisprudence, but cannot take the case of the appellant – Satnam Singh5 any further inasmuch as the trial Court has carefully analysed the testimonies of the defence witnesses before drawing an adverse presumption against the accused. The High Court has also taken pains to go through the entire testimonies of the defence witnesses and only thereafter endorsed the view taken by the trial Court. There has been no arbitrariness or undue favour shown to the prosecution witnesses from the appellant-Satnam Singh5 to claim any bias. (g) PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT WITNESS, SONU
24. As for the contention of learned counsel for the appellant – Satnam Singh5 that the testimony of Sonu8 cannot be treated as that of an independent witness in view of the provisions under Section 100 (4) of the Cr.P.C., we are of the view that the said plea does not hold any water. Section 100 (4) of the Cr.P.C. that falls under Chapter VII titled “Process to Compel the Production of Things”, states as follows : 46 Ex.DW-1/A 47 (1981) 2 SCC 166 48 (2002) 2 SCC 426 49 (2014) 7 SCC 716 50 (2014) 11 SCC 355 “100. Persons in charge of closed place to allow search – (4). Before making a search under this Chapter, the offi cer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”
25. It can be discerned from a bare reading of the aforesaid provision that it is a general provision relating to search and applies to a closed place, as for example, a residence, offi ce, shop, a built-up premises etc, where a search is required to be conducted by the investigation. It is in this context that sub-section (4) of Section 100 Cr.P.C. provides that to maintain the purity of the process, before undertaking a search, a couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search.
26. In the case at hand, the naka was laid by the offi cials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12th December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were fl agged down by the NCB offi cers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu8 by claiming that he was the real culprit, is clearly a trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not examine him. As a consequence, the two defence witnesses, Parkash Ram31 and Ravi Kant Pawar32 produced by the appellant – Satnam Singh5 to demonstrate that Mukesh Kumar was a stock witness, would hardly be of any assistance. The other procedural discrepancies sought to be pointed out by learned counsel for the appellant – Satnam Singh5 and referred to in paras 4.3 and 4.4 above, are not considered so vital in nature as to unsettle or demolish the entire case set up by the prosecution against the appellant – Satnam Singh5. BALWINDER SINGH (BINDA) v. THE NARCOTICS CONTROL BUREAU [HIMA KOHLI, J.] (IV) CONCLUSION
27. In view of the aforesaid discussion, we are of the opinion that the appellant – Satnam Singh5 has failed to make out a case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh5 is maintained. Criminal Appeal No. 1933 of 2014 is accordingly dismissed and the order of conviction and the sentence imposed on Satnam Singh5 by trial Court and upheld by the High Court is affi rmed. However, Criminal Appeal No.1136 of 2014 is allowed and the appellant, Balwinder Singh3 is acquitted. Headnotes prepared by: Appeals disposed of. Nidhi Jain