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Bhola Ram Kushwaha v. State Of M.P .
Factual and Procedural Background
The appellant was prosecuted for allegedly being in possession of one gram of “brown sugar” and was convicted for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The trial court sentenced him to rigorous imprisonment for 10 years and a fine of Rs 1 lakh. His appeal before the High Court was dismissed, following which he appealed to the Supreme Court (leave granted).
As per the prosecution version, S.N. Tripathi (PW 4) received information that the appellant had brown sugar in his trouser pocket, informed higher officers telephonically, searched the appellant after informing him of his right to be searched before a gazetted officer or a Magistrate, and recovered one gram of powder from the back pocket in the presence of purported panch witnesses Raju Khanna (PW 1) and Arjun Kumar (PW 2). The appellant denied the charge and alleged false implication due to enmity. At trial, PW 1 and PW 2 did not support the prosecution.
Legal Issues Presented
- Whether the appellant’s conviction under Section 21 of the NDPS Act could be sustained when the alleged independent panch witnesses (PWs 1 and 2) did not support the prosecution and the remaining evidence contained material contradictions.
- Whether the prosecution proved its case beyond reasonable doubt in light of discrepancies regarding the alleged recording of prior information (Exhibit P/13) and non-association of other potential witnesses (three accompanying constables).
Arguments of the Parties
Appellant's Arguments
- Since the allegedly independent witnesses to the search and recovery (PWs 1 and 2) had turned hostile, the trial court ought to have acquitted the accused.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court declined to accept the appellant’s submission as a “general” proposition that hostility of independent witnesses necessarily requires acquittal, and instead undertook its own scrutiny of the prosecution evidence to assess whether it inspired confidence.
On appraisal of the evidence, the Court found “glaring discrepancies” and held that the prosecution failed to prove guilt beyond reasonable doubt. In particular:
- PWs 1 and 2 (the admitted panch witnesses) contradicted PW 4 in all material particulars. Both stated that they did not know the appellant, that no recovery was made in their presence, and that their signatures were obtained by police on papers.
- The prosecution did not associate the three constables who accompanied PW 4 as witnesses, a factor the Court noted while evaluating the reliability of the prosecution case.
- PW 4 claimed in court that he recorded the information in the “Sanha” (Exhibit P/13). However, on examining Exhibit P/13, the Court found that it contained no entry regarding information that the appellant had brown sugar in his pocket. This undermined PW 4’s version on a material aspect.
- The trial court was found to have omitted to notice the “glaring contradictions” in the prosecution evidence, having convicted the appellant solely on PW 4’s testimony despite the unreliability found on appellate scrutiny.
Given these contradictions and the lack of reliable corroboration, the Court concluded that conviction could not be sustained on such evidence.
Holding and Implications
APPEAL ALLOWED; CONVICTION AND SENTENCE SET ASIDE; ACQUITTAL.
The Supreme Court set aside the conviction and sentence imposed by the trial court and affirmed by the High Court, acquitted the appellant of the charge under Section 21 of the NDPS Act, and directed that he be set at liberty forthwith if not required in any other case. The opinion does not indicate any broader precedential implication beyond granting relief on the specific evidentiary deficiencies identified.
R.P Sethi, J.— Leave granted.
2. For allegedly being in possession of one gram of brown sugar, the appellant was found guilty and convicted for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). He was sentenced to undergo rigorous imprisonment for 10 years besides paying a fine of Rs 1 lakh. Appeal filed against the judgment of the trial court was dismissed by the High Court vide the judgment impugned in this appeal.
3. According to the prosecution Shri S.N Tripathi (PW 4), after having received an information that the appellant was having brown sugar in his pants' pocket, the appellant was caught hold of and searched in presence of the witnesses Raju Khanna (PW 1) and Arjun Kumar (PW 2). Before searching the appellant, PW 4 had telephonically informed his higher officers about the information received by him. After the appellant consented to be searched by PW 4, the recovery of one gram of powder was made from his back pocket in the presence of witnesses PWs 1 and 2. After procedural formalities the prosecution was launched against the appellant. The appellant denied the charge against him and submitted that he was falsely implicated on account of enmity. Solely relying upon the testimony of PW 4, the appellant was convicted and sentenced as noticed earlier. Witnesses Raju Khanna and Arjun Kumar have admittedly not supported the prosecution story.
4. Learned counsel appearing for the appellant submitted that as both the witnesses who were stated to be independent witnesses have turned hostile, the trial court should have acquitted the accused. We are not impressed with such a general submission. In order to satisfy ourselves we have perused the statements of all the prosecution witnesses and ascertained as to whether their testimonies inspire confidence for holding the appellant guilty of the offence for which he has been convicted and sentenced.
5. Raju Khanna (PW 1) in his statement, recorded in the trial court on 5-11-1997 stated that he did not know the accused. Police had not recovered any material from the person of Bhola Ram Kushwaha on 20-5-1997. He had signed some documents at the instance of police. Some case was pending against him in Ambikapur Court and in connection with that the police called him and obtained signatures on the papers. The witness was declared hostile by the prosecution and cross-examined. Similarly Arjun Kumar (PW 2) categorically stated that he did not know the appellant. His signatures were also obtained on some papers at the instance of police. The appellant was never interrogated or searched in his presence. Jitender Singh (PW 3) Head Constable of Police is stated to have received on 20-5-1997 as sealed packet allegedly containing brown sugar for keeping in safe custody. He made entry of deposit of the material in the confiscation register and issued receipt therefor. S.N Tripathi (PW 4) stated that he was on round in the town on 20-5-1997 when he got an information that the appellant was moving around having brown sugar in his pants' pocket. The appellant was encircled by the witness along with his staff and informed that he was to be searched. He was intimated of his right as to whether he wanted himself to be searched in the presence of a gazetted officer or the Magistrate. With his consent search was made by the witness and one gram of brown sugar was seized. He did not deny the suggestion that between Raju and Arjun some disputes were pending in the court.
6. Upon analysis of the evidence led in the case and finding glaring discrepancies in the statements of the prosecution witnesses we feel that the prosecution has failed to prove its case against the appellant beyond all reasonable doubts. In all material particulars PW 4 stands contradicted by PWs 1 and 2 who are admittedly the panch witnesses. The prosecution also failed to associate three constables who accompanied S.N Tripathi (PW 4) as witnesses. The trial court appears to have omitted to note the glaring contradictions in the testimony of prosecution witnesses. PW 4 in his testimony in the court submitted that:
“ … he received the information that accused Bholaram Kushwaha was having brown sugar in the pocket of his trouser. He recorded that information in the Sanha. That is Ext. P/13”.
7. However, a perusal of Exhibit P/13 showed that no entry was made therein regarding the appellant having brown sugar in his pocket. We feel that the appellant cannot be convicted on the basis of evidence led, which in this case, we have found to be contradictory and not reliable.
8. Under the circumstances, the appeal is allowed by setting aside the conviction and sentence as passed by the trial court and confirmed by the High Court. The appellant is acquitted of the charges framed against him under Section 21 of the NDPS Act. He shall be set at liberty forthwith if not required in any other case.
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