Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.828 OF 2008
RADHEY SHYAM APPELLANT
VERSUS
UNION OF INDIA RESPONDENT
O R D E R
1. Being aggrieved by the judgment and order
passed by the High Court of Judicature of Madhya
Pradesh in Criminal Appeal No. 369 of 2003, dated
05.12.2006, the appellant is before us in this
appeal. By the impugned judgment and order, the
High Court has confirmed the judgment and order
passed by the learned Special Judge (under the
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Narcotic, Drugs and Psychotropic Substances Act,
1985) in Sessions Trial No.76/2002, dated
31.01.2003.
2. The appellant-accused is alleged to have sold
10 bags of poppy husk (total quantity of about 162
Kg.) for Rs.1500/- to other two co-accused Bhuma and
Rama, who were found in possession of the said poppy
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husk. The only evidence that was led by the
Prosecution, insofar as the appellant is concerned,
is the statement made by the appellant under Section
67 of the Narcotic, Drugs and Psychotropic
Substances Act, 1985 (hereinafter, for the sake
brevity, referred to as “the NDPS Act”). Based on
the aforesaid statement so made, the learned
Sessions Judge has convicted and sentenced the
appellant to rigorous imprisonment for a period of
10 years with fine of Rs.1 lac under Section 8 read
with Section 15(c) of the NDPS Act.
3. It is the aforesaid order which was questioned
by the appellant before the High Court in Criminal
Appeal No. 369 of 2003. As we have already noticed,
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the High Court has confirmed the orders passed by
the learned Sessions Judge.
4. Shri Ranbir Singh Kundu, learned counsel
appearing for the appellant, would contend that the
learned Sessions Judge ought not to have placed
total reliance on the statement of the accused made
under Section 67 of the NDPS Act (“the statement”
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for short) and have convicted and sentenced the
appellant for the offence under Section 8 read with
Section 15(c) of the NDPS Act. Exhibit P-19, the
statement supposed to have been made by the accused,
was produced and marked in the evidence of the
Investigating Officer. According to the learned
counsel, the document is a fabricated document and,
therefore, the learned Sessions Judge ought not have
placed reliance on the said document while
convicting the appellant for the aforesaid offence.
5. In support of his contention, the learned
counsel has taken us through the evidence of the
Investigating Officer, in particular, his cross-
examination. We have carefully perused the statement
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recorded when the Investigating Officer was in the
witness box. The suggestion of the learned counsel
for the defence that all proceedings at the
appellant’s house were counter signed by two
witnesses was accepted by the Investigating Officer.
He would go to the extent of saying that the
proceedings which were conducted at the house of the
appellant and the statement of the appellant were
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counter signed by the two witnesses, namely, Radhey
Shyam and Govind. A further suggestion was made to
the Investigating Officer that since Exhibit P-19
does not bear the signatures of the two witnesses,
the said document is a forged document for which
there is denial by the Investigating Authority.
6. Shri P.K.Dey, learned counsel appearing for
the Union of India, would submit that the statement
does not require to be counter signed by witnesses
and, therefore, the learned Sessions Judge was
justified in relying upon the statement made by the
appellant under Section 67 of the NDPS Act and
thereby convicting and sentencing the appellant for
the offence stated earlier.
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7. Having considered the submissions made by
learned counsel for the parties to the lis, we are
of the opinion that in the present case, the
question that whether the statement requires to be
signed by two witnesses or not does not need any
discussion. What requires our consideration in this
case is whether the reliance placed by the learned
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Sessions Judge on the statement, Exhibit P-19,
justified or not. For that purpose the evidence of
the Investigating Officer, who had categorically
stated that the entire proceeding was recorded in
the house of the appellant, needs to be evaluated.
In the said evidence, he further states that when
the proceedings were conducted, two witnesses were
present and the statement of the appellant was
recorded in their presence and they had counter
signed the same.
8. In order to verify the correctness or
otherwise of the said document, we have looked into
the Original Records. The said document does not
bear the signatures of the two witnesses. This
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generates a doubt in the mind of this Court that the
document so produced and marked in the evidence may
not be the original statement of the appellant,
recorded under Section 67 of the NDPS Act.
9. In view of the above, in our opinion, some
doubt would arise with regard to the complicity of
the appellant for the offence under Section 8 read
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with Section 15 (c) of the NDPS Act. We are,
therefore, of the opinion that the benefit of doubt
requires to be given to the appellant. Accordingly,
we allow this appeal, set aside the conviction and
sentence awarded by the Trial Court and confirmed by
the High Court, by giving the benefit of doubt to
the appellant.
10. We further direct that the appellant be
released forthwith, if not required in any other
case and any fine amount deposited by the appellant-
accused shall be returned forthwith to the
appellant. Since the appellant is on bail, his bail
bonds are discharged.
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Ordered accordingly.
.......................J.
(H.L. DATTU)
.......................J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI;
SEPTEMBER 26, 2012
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