Full Judgment Text
Non-Reportable
2025 INSC 497
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2731-32 OF 2024
K. Shikha Barman … Appellant
versus
State of Madhya Pradesh ... Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
th
1. By order dated 4 January 2024, the Special Leave Petition
out of which the present Criminal Appeal arises has been
dismissed as regards petitioner no.1 therein. Now, this Appeal
survives only insofar as the appellant, namely, K. Shikha Barman
(the appellant) is concerned.
2. The appellant was arraigned as accused no.2 along with three
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.04.16
19:05:09 IST
Reason:
other accused in a prosecution for the offence punishable under
Crl. Appeal Nos. 2731-32 of 2024 Page 1 of 10
Sections 8 and 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short ‘NDPS Act’).
th
3. On 4 March 2016, PW-5, Sub-Inspector Bhawna Tiwari,
who was posted at the relevant time in Hanumantal Police Station,
Jabalpur, received an information that some persons, including
three men and two women, were carrying Ganja in a WagonR car
and were trying to sell the contraband. Accordingly, necessary
preparation was made by PW-5. When PW-5 and her team reached
Footalal Ground, Hanumanatal, they found that three men and
two women were sitting in a WagonR. The women were Seema and
Preeti. On search, bags containing Ganja, totally weighing 38.200
kgs. were seized. Samples were drawn, and further procedure was
followed. The accused were arrested. In the memo of arrest, one
Seema Choudhari was shown as arrested, whose age was recorded
as 17 years in the arrest memo.
4. We may note here that, according to the case of the appellant,
in fact, one Seema Choudhari was the accused and she was shown
as arrested. The appellant’s contention is that the said Seema
Choudhari was released, and the appellant, who was begging on
the road, was caught and falsely implicated. While deciding the
Crl. Appeal Nos. 2731-32 of 2024 Page 2 of 10
th
bail application filed by the appellant, an order was passed on 6
September 2016 holding that the real name of Seema Choudhari
th
is Shikha Barman. By the order dated 6 September 2016, by
recording a finding that Seema Choudhari and Shikha Barman are
the same, the bail application of the appellant was rejected.
SUBMISSIONS
5. The submission of the learned counsel appearing for the
appellant who has been appointed to espouse the cause of the
appellant by the Supreme Court Legal Services Committee is that
there is no evidence adduced at the time of the final hearing to
show that the present appellant was Seema Choudhari who was
caught sitting in WagonR car and both the High Court and Special
th
Court have erroneously relied upon the order dated 6 September
2016 passed on the application for grant of bail. The submission
of the appellant is that only a summary inquiry was held at that
time without oral evidence being adduced by the parties.
th
Therefore, on the basis of the said order of 6 September 2016, the
argument of the appellant that she is not the accused and that one
Seema Choudhari was the real accused cannot be discarded.
Therefore, in the absence of any evidence adduced by the
prosecution to show that Seema Choudhari and the present
Crl. Appeal Nos. 2731-32 of 2024 Page 3 of 10
appellant are one and the same, the conviction of the appellant
cannot be sustained.
6. The learned counsel appearing for the State invited our
attention to statements recorded by the police and findings in the
th
order dated 6 September 2016. He submitted that the findings
are based on documents such as the Aadhar card. He submitted
that the said order was not challenged by the appellant and hence,
has become final.
CONSIDERATION OF SUBMISSIONS
7. The burden was on the prosecution to prove that the present
th
appellant was found sitting in a WagonR car on 4 March 2016,
from which contraband was recovered. Therefore, it was the duty
of the prosecution to prove that the accused Seema Choudhari, as
described in all documents, including documents of seizure, arrest
memo, etc., is the present appellant. Firstly, we deal with the
th
contentions based on the order dated 6 September 2016. A
th
perusal of the order dated 6 September 2016 shows that a
summary inquiry was conducted by the learned Special Judge
under the NDPS Act on the basis of the documents produced on
record. He has also relied on an inquiry report submitted by the
Crl. Appeal Nos. 2731-32 of 2024 Page 4 of 10
investigation officer. The officer had recorded statements of some
persons. The said order cannot be treated as a final adjudication
of the contention raised by the appellant. The reason is that there
was no oral evidence adduced at that stage. Moreover, this inquiry
was for a limited purpose of deciding the appellant’s bail
application.
8. A few factual aspects which emerge from the exhibited
documents are as under :
a. In the First Information Report registered by PW-5, it is
stated that one Seema, daughter of Mohan Choudhari, was
found sitting in the car along with the other accused.
Therefore, FIR mentions the name of Seema Choudhari;
b. In the memorandum sent to the medical officer for
medical examination, the name of the accused is shown as
Seema Choudhari;
c. Even in the seizure memo, the name of the accused
mentioned is Seema Choudhari;
d. In the arrest memo, the name of the accused is shown
as Seema Choudhari;
e. The arrest memo records her age as 17 years. Therefore,
she was produced before the Juvenile Justice Board,
Crl. Appeal Nos. 2731-32 of 2024 Page 5 of 10
th
Jabalpur. By a communication dated 14 March 2016, the
Juvenile Justice Board informed the Superintendent of the
Children’s Home that the age of Seema Choudhari appears to
be more than 18 years;
f. In the remand report, the name of Seema Choudhari
appears; and
g. In none of the documents, produced along with the
charge sheet, K. Shikha Barman was mentioned as an
accused;
9. Now, we turn to the evidence of PW-5. The evidence of PW-5
reveals the following factual aspects:
th
a. On 4 March 2016, PW-5 found five persons sitting in a
WagonR car. Three were men and two were women whose
names were Seema and Preeti;
b. He has referred to the signatures of Seema on the search
memo and other documents;
c. It is pertinent to note here that PW-5, in her examination-
in-chief, in paragraph 12 has stated thus:
“When we reached Footatal Ground,
Hanumantal, there were five people
sitting in a black colored WagonR vehicle
CG 010/F 5366 in the ground in front of
tank of Police Station, among them three
Crl. Appeal Nos. 2731-32 of 2024 Page 6 of 10
were boys and two women, the name of
the women were Seema and Preeti.
Both the accused have been identified
by witnesses in the court.”
(underlines supplied)
d.
In paragraphs 49 and 50, PW-5 stated thus:
“49. It is correct that the informant
informed that in the WagonR vehicle
parked at the spot, there were 05 persons
whose names were Mo. Mehboob, Ashok
Sen, Pappu Chakrawarti, Preeti
Choudhary, Seema Choudhary were
reported to be sitting. It is correct that I
did not get information about Shikha
Barman sitting in the vehicle. The
Panchnama of informant information is
Ex.P-30. I Roznamcha Sanha the
informant information at 6:13 pm (The
witness presented the correct copy of
Roznamcha Sanha No. 3 dated
04.03.2016, which was marked as Ex.P-
31C. A copy of the said Roznamcha Sanha
should be provided to the counsel for all
the accused today itself). It is correct
that in the diary number 3 also it is
written that Mo. Mehboob, Ashok Sen,
Pappu Chakrawarti, Preeti Choudhary,
Seema Choudhary were reported to be
sitting. It is correct that information
about Shikha Barman' presence was
not recorded in the Roznamcha Sanha.
50. It is correct that after reaching
to the spot of incident and while
preparing the Search Panchnama Ex.P-
4, no woman named Shikha Barman
was found in the vehicle. I am not aware
that consent of a minor is not taken. It is
incorrect to say that age of Pappu
Chakrawarti at the time of incident was
Crl. Appeal Nos. 2731-32 of 2024 Page 7 of 10
15 years it is correct that signature of
Shikha Barman is not present on any
Panchnama prepared on the spot.
Thumb impression which is on the
consent Panchnama and other
Panchnama is not of Shikha Barman. It
is correct on the front page of Ex.P-
4,5,7,8,9,10,12,13,14,15,16,17 and
Ex.P-24 signature or thumb impression of
any witness or accused is not present.
(underlines supplied)
e. Even in paragraph 52, PW-5 referred to the documents in
which the name of the accused was shown as Seema
Choudhari;
f. A specific suggestion was given to the witness that the
police had let off Seema Choudhari and picked up the
appellant, who was begging near the spot. The correctness
of the suggestion was denied by PW-5;
g. PW-5 has not deposed that the appellant who was present
in the court is the same person as Seema Choudhari, who
th
was arrested on 4 March 2016.
10. Therefore, the prosecution’s evidence clearly shows that on
th
4 March 2016, one Seema Choudhari was found sitting with
another accused in a WagonR car. All the contemporary
documents, including the memo of arrest of the same date, do not
Crl. Appeal Nos. 2731-32 of 2024 Page 8 of 10
mention the name of the appellant as the accused. The accused
is described as Seema Choudhari.
11. In the examination of the appellant under Section 313 of the
Code of Criminal Procedure, 1973, it is not put to the appellant
that she is the same person as Seema Choudhari, who was
th
arrested on 4 March 2016. Therefore, the appellant was deprived
of an opportunity to deal with the prosecution case. This causes
prejudice to her.
12. Therefore, the prosecution has adduced no evidence to show
th
that the appellant is Seema Choudhari, who was arrested on 4
March 2016.
13. Hence, the guilt of the appellant has not been proved beyond
a reasonable doubt. Accordingly, the impugned judgment of the
th
Trial Court dated 9 July 2018 in Special Case No. 24 of 2016 and
the impugned judgment of the High Court of Madhya Pradesh at
th
Jabalpur dated 12 July 2022 in Criminal Appeal No.6064 of 2018
is hereby quashed and set aside only insofar as the appellant (K.
Shikha Barman) is concerned. The appellant is acquitted of the
Crl. Appeal Nos. 2731-32 of 2024 Page 9 of 10
offences alleged against her. If the appellant is still in prison, she
shall be forthwith set at liberty.
14. The Appeal, as regards appellant K. Shikha Barman, is
accordingly allowed.
...…………………………….J.
(Abhay S Oka)
..…………………………….J.
(Ujjal Bhuyan)
New Delhi;
April 16, 2025.
Crl. Appeal Nos. 2731-32 of 2024 Page 10 of 10
2025 INSC 497
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2731-32 OF 2024
K. Shikha Barman … Appellant
versus
State of Madhya Pradesh ... Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
th
1. By order dated 4 January 2024, the Special Leave Petition
out of which the present Criminal Appeal arises has been
dismissed as regards petitioner no.1 therein. Now, this Appeal
survives only insofar as the appellant, namely, K. Shikha Barman
(the appellant) is concerned.
2. The appellant was arraigned as accused no.2 along with three
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.04.16
19:05:09 IST
Reason:
other accused in a prosecution for the offence punishable under
Crl. Appeal Nos. 2731-32 of 2024 Page 1 of 10
Sections 8 and 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short ‘NDPS Act’).
th
3. On 4 March 2016, PW-5, Sub-Inspector Bhawna Tiwari,
who was posted at the relevant time in Hanumantal Police Station,
Jabalpur, received an information that some persons, including
three men and two women, were carrying Ganja in a WagonR car
and were trying to sell the contraband. Accordingly, necessary
preparation was made by PW-5. When PW-5 and her team reached
Footalal Ground, Hanumanatal, they found that three men and
two women were sitting in a WagonR. The women were Seema and
Preeti. On search, bags containing Ganja, totally weighing 38.200
kgs. were seized. Samples were drawn, and further procedure was
followed. The accused were arrested. In the memo of arrest, one
Seema Choudhari was shown as arrested, whose age was recorded
as 17 years in the arrest memo.
4. We may note here that, according to the case of the appellant,
in fact, one Seema Choudhari was the accused and she was shown
as arrested. The appellant’s contention is that the said Seema
Choudhari was released, and the appellant, who was begging on
the road, was caught and falsely implicated. While deciding the
Crl. Appeal Nos. 2731-32 of 2024 Page 2 of 10
th
bail application filed by the appellant, an order was passed on 6
September 2016 holding that the real name of Seema Choudhari
th
is Shikha Barman. By the order dated 6 September 2016, by
recording a finding that Seema Choudhari and Shikha Barman are
the same, the bail application of the appellant was rejected.
SUBMISSIONS
5. The submission of the learned counsel appearing for the
appellant who has been appointed to espouse the cause of the
appellant by the Supreme Court Legal Services Committee is that
there is no evidence adduced at the time of the final hearing to
show that the present appellant was Seema Choudhari who was
caught sitting in WagonR car and both the High Court and Special
th
Court have erroneously relied upon the order dated 6 September
2016 passed on the application for grant of bail. The submission
of the appellant is that only a summary inquiry was held at that
time without oral evidence being adduced by the parties.
th
Therefore, on the basis of the said order of 6 September 2016, the
argument of the appellant that she is not the accused and that one
Seema Choudhari was the real accused cannot be discarded.
Therefore, in the absence of any evidence adduced by the
prosecution to show that Seema Choudhari and the present
Crl. Appeal Nos. 2731-32 of 2024 Page 3 of 10
appellant are one and the same, the conviction of the appellant
cannot be sustained.
6. The learned counsel appearing for the State invited our
attention to statements recorded by the police and findings in the
th
order dated 6 September 2016. He submitted that the findings
are based on documents such as the Aadhar card. He submitted
that the said order was not challenged by the appellant and hence,
has become final.
CONSIDERATION OF SUBMISSIONS
7. The burden was on the prosecution to prove that the present
th
appellant was found sitting in a WagonR car on 4 March 2016,
from which contraband was recovered. Therefore, it was the duty
of the prosecution to prove that the accused Seema Choudhari, as
described in all documents, including documents of seizure, arrest
memo, etc., is the present appellant. Firstly, we deal with the
th
contentions based on the order dated 6 September 2016. A
th
perusal of the order dated 6 September 2016 shows that a
summary inquiry was conducted by the learned Special Judge
under the NDPS Act on the basis of the documents produced on
record. He has also relied on an inquiry report submitted by the
Crl. Appeal Nos. 2731-32 of 2024 Page 4 of 10
investigation officer. The officer had recorded statements of some
persons. The said order cannot be treated as a final adjudication
of the contention raised by the appellant. The reason is that there
was no oral evidence adduced at that stage. Moreover, this inquiry
was for a limited purpose of deciding the appellant’s bail
application.
8. A few factual aspects which emerge from the exhibited
documents are as under :
a. In the First Information Report registered by PW-5, it is
stated that one Seema, daughter of Mohan Choudhari, was
found sitting in the car along with the other accused.
Therefore, FIR mentions the name of Seema Choudhari;
b. In the memorandum sent to the medical officer for
medical examination, the name of the accused is shown as
Seema Choudhari;
c. Even in the seizure memo, the name of the accused
mentioned is Seema Choudhari;
d. In the arrest memo, the name of the accused is shown
as Seema Choudhari;
e. The arrest memo records her age as 17 years. Therefore,
she was produced before the Juvenile Justice Board,
Crl. Appeal Nos. 2731-32 of 2024 Page 5 of 10
th
Jabalpur. By a communication dated 14 March 2016, the
Juvenile Justice Board informed the Superintendent of the
Children’s Home that the age of Seema Choudhari appears to
be more than 18 years;
f. In the remand report, the name of Seema Choudhari
appears; and
g. In none of the documents, produced along with the
charge sheet, K. Shikha Barman was mentioned as an
accused;
9. Now, we turn to the evidence of PW-5. The evidence of PW-5
reveals the following factual aspects:
th
a. On 4 March 2016, PW-5 found five persons sitting in a
WagonR car. Three were men and two were women whose
names were Seema and Preeti;
b. He has referred to the signatures of Seema on the search
memo and other documents;
c. It is pertinent to note here that PW-5, in her examination-
in-chief, in paragraph 12 has stated thus:
“When we reached Footatal Ground,
Hanumantal, there were five people
sitting in a black colored WagonR vehicle
CG 010/F 5366 in the ground in front of
tank of Police Station, among them three
Crl. Appeal Nos. 2731-32 of 2024 Page 6 of 10
were boys and two women, the name of
the women were Seema and Preeti.
Both the accused have been identified
by witnesses in the court.”
(underlines supplied)
d.
In paragraphs 49 and 50, PW-5 stated thus:
“49. It is correct that the informant
informed that in the WagonR vehicle
parked at the spot, there were 05 persons
whose names were Mo. Mehboob, Ashok
Sen, Pappu Chakrawarti, Preeti
Choudhary, Seema Choudhary were
reported to be sitting. It is correct that I
did not get information about Shikha
Barman sitting in the vehicle. The
Panchnama of informant information is
Ex.P-30. I Roznamcha Sanha the
informant information at 6:13 pm (The
witness presented the correct copy of
Roznamcha Sanha No. 3 dated
04.03.2016, which was marked as Ex.P-
31C. A copy of the said Roznamcha Sanha
should be provided to the counsel for all
the accused today itself). It is correct
that in the diary number 3 also it is
written that Mo. Mehboob, Ashok Sen,
Pappu Chakrawarti, Preeti Choudhary,
Seema Choudhary were reported to be
sitting. It is correct that information
about Shikha Barman' presence was
not recorded in the Roznamcha Sanha.
50. It is correct that after reaching
to the spot of incident and while
preparing the Search Panchnama Ex.P-
4, no woman named Shikha Barman
was found in the vehicle. I am not aware
that consent of a minor is not taken. It is
incorrect to say that age of Pappu
Chakrawarti at the time of incident was
Crl. Appeal Nos. 2731-32 of 2024 Page 7 of 10
15 years it is correct that signature of
Shikha Barman is not present on any
Panchnama prepared on the spot.
Thumb impression which is on the
consent Panchnama and other
Panchnama is not of Shikha Barman. It
is correct on the front page of Ex.P-
4,5,7,8,9,10,12,13,14,15,16,17 and
Ex.P-24 signature or thumb impression of
any witness or accused is not present.
(underlines supplied)
e. Even in paragraph 52, PW-5 referred to the documents in
which the name of the accused was shown as Seema
Choudhari;
f. A specific suggestion was given to the witness that the
police had let off Seema Choudhari and picked up the
appellant, who was begging near the spot. The correctness
of the suggestion was denied by PW-5;
g. PW-5 has not deposed that the appellant who was present
in the court is the same person as Seema Choudhari, who
th
was arrested on 4 March 2016.
10. Therefore, the prosecution’s evidence clearly shows that on
th
4 March 2016, one Seema Choudhari was found sitting with
another accused in a WagonR car. All the contemporary
documents, including the memo of arrest of the same date, do not
Crl. Appeal Nos. 2731-32 of 2024 Page 8 of 10
mention the name of the appellant as the accused. The accused
is described as Seema Choudhari.
11. In the examination of the appellant under Section 313 of the
Code of Criminal Procedure, 1973, it is not put to the appellant
that she is the same person as Seema Choudhari, who was
th
arrested on 4 March 2016. Therefore, the appellant was deprived
of an opportunity to deal with the prosecution case. This causes
prejudice to her.
12. Therefore, the prosecution has adduced no evidence to show
th
that the appellant is Seema Choudhari, who was arrested on 4
March 2016.
13. Hence, the guilt of the appellant has not been proved beyond
a reasonable doubt. Accordingly, the impugned judgment of the
th
Trial Court dated 9 July 2018 in Special Case No. 24 of 2016 and
the impugned judgment of the High Court of Madhya Pradesh at
th
Jabalpur dated 12 July 2022 in Criminal Appeal No.6064 of 2018
is hereby quashed and set aside only insofar as the appellant (K.
Shikha Barman) is concerned. The appellant is acquitted of the
Crl. Appeal Nos. 2731-32 of 2024 Page 9 of 10
offences alleged against her. If the appellant is still in prison, she
shall be forthwith set at liberty.
14. The Appeal, as regards appellant K. Shikha Barman, is
accordingly allowed.
...…………………………….J.
(Abhay S Oka)
..…………………………….J.
(Ujjal Bhuyan)
New Delhi;
April 16, 2025.
Crl. Appeal Nos. 2731-32 of 2024 Page 10 of 10