BALWINDER SINGH @ BINDA vs. THE NARCOTICS CONTROL BUREAU

Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 2023INSC852 CRIMINAL APPEAL NO. 1136 OF 2014 BALWINDER SINGH (BINDA) ….….. APPELLANT VERSUS THE NARCOTICS CONTROL BUREAU .…….. RESPONDENT With CRIMINAL APPEAL NO. 1933 OF 2014 SATNAM SINGH ….….. APPELLANT VERSUS THE NARCOTICS CONTROL BUREAU …….. RESPONDENT J U D G E M E N T HIMA KOHLI, J. th 1. The present appeals arise from the common judgment dated 08 July, 2013 passed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh 1 deciding the Murder Reference prepared by the Judge, Special Court for confirmation of 2 3 4 death sentence, appeal preferred by Balwinder Singh and the appeal filed by Satnam 5 Singh . Signature Not Verified Digitally signed by POOJA SHARMA Date: 2023.09.22 17:27:13 IST Reason: 1 Murder Reference No. 5 of 2012 titled Narcotics Control Bureau, Chandigarh Zonal Unit v. Balwinder Singh @ Binda 2 CRA No. D-365-DB of 2012 3 Appellant in Criminal Appeal No. 1136 of 2014 4 CRA No. D-371-DB of 2012 5 Appellant in Criminal Appeal No. 1933 of 2014 Page 1 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 3 1.1 By the impugned judgment, the death sentence imposed upon Balwinder Singh was set aside under the Reference, thereby declining the Reference and imposed a sentence on him to undergo rigorous imprisonment for 14 years and to pay a fine of ₹ 1,50,000/- [Rupees one lakh fifty thousand only] and in default, to undergo rigorous imprisonment for one year for commission of offence under Section 21(c) of the Narcotic 6 Drugs and Psychotropic Substances Act, 1985 . The appeals preferred by the accused were dismissed except for the modification in the order of sentence. Both the accused are before this Court in these appeals by way of special leave. I. FACTUAL MATRIX: (a) THE INCIDENT IN QUESTION th 2. The incident in question relates back to 11 December, 2005, when as per the 7 version of the prosecution, the Narcotics Control Bureau received secret information that some persons who were indulging in the sale of contraband, were travelling in a white coloured Indica car from Amritsar to supply contraband at a bus stand at th Chandigarh. On 12 December, 2005, at 01:00 am, a naka was laid by the NCB team at 8 Chandigarh and two independent witnesses [Mukesh Kumar and Sonu ] were 9 associated in the investigation. At 03:15 am, the NCB team noticed that a car coming from Sector 25 and heading towards Sector 24, Chandigarh, stopped at a little distance from the place of naka and two persons wearing turbans alighted from the car and ran 6 For short ‘NDPS Act’ 7 For short ‘NCB’ 8 PW-1 9 White coloured Indica Car bearing registration number HR-01-J-9639 (Marked as P-1) Page 2 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 away. However, the third person, also wearing a turban who had later on disclosed his 5 name as Satnam Singh , remained seated in the car. 5 2.1. Members of the NCB team intercepted the vehicle and searched Satnam Singh in the presence of the independent witnesses. On searching the car, they found two packets wrapped in a khaki tape in the cavity of the door panel. On unzipping the seat cover of the rear back seat of the vehicle, two more similar packets wrapped in khaki 5 tape were recovered. The prosecution claims that on inquiry, Satnam Singh disclosed that the packets contained heroin that he had brought from Amritsar with the assistance 3 of Balwinder Singh and a person named Harpreet Singh alias Preet alias Sarpanch for 3 sale in Chandigarh. He further disclosed that Balwinder Singh and Sarpanch ran away when the car had stopped a few yards before the naka . The NCB officers seized all the four packets and after taking out two representative samples, sealed them. The samples 5 of the packets were signed by Satnam Singh , the two independent witnesses, 10 11 Intelligence Officer - Balwinder Kumar and O.P. Sharma, Superintendent, NCB . (b) THE INVESTIGATION 12 2.2. A panchnama in respect of the recovery made was prepared at the spot, read 5 over to Satnam Singh who signed it. So did the independent witnesses. Thereafter, 5 13 Satnam Singh was arrested and his statement was recorded after issuing him a 14 notice under Section 67 of the NDPS Act. He was also searched personally. The 10 PW-2 11 PW-5 (wrongly mentioned as PW-10 in the trial Court judgement) 12 Exhibit P-1/E 13 Exhibit PW-1/B 14 Exhibit P-5 Page 3 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 15 16 statements of the independent witnesses [Sonu and Mukesh ] were recorded. Satnam 5 17 Singh was produced before the Illaqa Magistrate with the case property and the documents. The case property was handed over to the Superintendent Incharge of the 18 19 godown and the parcels of the samples were sent to the Chemical Examiner who 20 forwarded the report later on. 5 3 2.3. Till this stage, the co-accused named by Satnam Singh , i.e., Balwinder Singh was nowhere in the picture. The prosecution claims that sometime later, the NCB 3 officers came across a newspaper report stating that Balwinder Singh had been arrested by Amritsar Police in an NDPS case and was lodged in the Central Jail, 3 21 Amritsar. Based on the said information, Balwinder Singh was arrested and a notice was served on him under Section 67 of the NDPS Act. Thereafter, his voluntary 22 statement was recorded and duly signed by him and he was arrested. 23 2.4 On conclusion of the investigation, the NCB submitted a complaint before the 5 3 Judge, Special Court, Chandigarh stating that Satnam Singh and Balwinder Singh had committed offences punishable under Sections 8, 21, 27A and 60 of the NDPS Act. Charges were framed against the two accused under Section 21 r/w Sections 8, 27A and nd 60 of the NDPS Act. On 02 July, 2007, both the accused pleaded not guilty and claimed trial. 15 Exhibit PW-1/D 16 Exhibit P-9 17 Exhibit P-1 18 Exhibit P-12 19 Chemical Examiner Shri. S.K. Mittal, PW-4 20 Exhibit P-11 21 Exhibit P - 6 22 Exhibit – P-17 23 Exhibit P-13 Page 4 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 (c) PROCEEDINGS BEFORE THE TRIAL COURT 8 2.5. On its part, the NCB examined five witnesses namely Sonu who was an th independent witness and joined the investigation when the naka was laid on 12 10 December, 2005; Constable Balwinder Singh whose deposition related to deposit of 18 24 the samples of the contraband with the Central Revenue Control Laboratory, Delhi ; 25 P.K. Sharma , the then Intelligence Officer, NCB who had received the secret 5 information based on which the naka was laid and Satnam Singh was arrested; S.K. 19 Mittal , the Chemical Examiner who deposed about receiving the sample in the Narcotic 10 20 th Section of the CRCL, New Delhi from the PW- 2 and his report dated 24 February, 2006 to the effect that on testing, the sample was found positive for heroin and 11 contained 73.5% of dialectical Morphine by weight and O.P. Sharma , Superintendent, NCB who narrated the sequence of events leading to the laying of the naka , search of 5 the Indica car being driven by the accused Satnam Singh wherefrom the contraband 26 was recovered, preparation of Recovery-cum-Seizure Memo and forwarding of the 27 seized contraband to Delhi for a chemical analysis , ending with the receipt of the 20 19 report of the Chemical Examiner . 2.6. After the prosecution closed its evidence, both the accused were examined under 28 Section 313 of the Criminal Procedure Code . They denied the charges levelled against them, pleaded not guilty and alleged false implication in the case. In their defence, the 24 For short, the CRCL, New Delhi’ 25 PW 3 26 Exhibit PW-1/C 27 Exhibit PW-1/A 28 For short ‘Cr.P.C’ Page 5 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 29 30 accused examined four witnesses, namely, Soravdeep Singh ; Naresh Kumar ; 31 32 29 30 Parkash Ram and Ravi Kant Pawar . DW-1 and DW-2 were summoned by 5 Satnam Singh to prove that a call for 27 seconds was made by him from his mobile th number at 9.45 p.m. on 11 December, 2005 to a landline number installed in the office of the Zonal Director in Chandigarh, when he was actually in police custody. 8 2.7. It was argued on behalf of the applicants that PW-1 – Sonu was the real culprit from whom recovery of heroin was made and he had managed to bribe the officers of the NCB team due to which they planted the contraband in the car driven by Satnam 5 5 Singh . It was also contended on behalf of Satnam Singh that one of the two independent witnesses, namely, Mukesh Kumar, was a stock witness of NCB and was 31 32 on its pay rolls as a daily wager. The testimonies of DW-3 and DW-4 was referred to, wherein it was deposed that Mukesh Kumar was joined in as a witness in another complaint registered by the NCB. th 2.8. After discussing the entire evidence, vide judgment dated 10 March, 2012, the learned Judge, Special Court, Chandigarh held both the accused guilty and convicted th them under Section 21 read with Section 8 of the NDPS Act. Subsequently, on 15 March, 2012, after hearing arguments on the quantum of sentence, noting that Balwinder 3 Singh had been previously convicted under Section 21(c) of the NDPS Act for the offence involving commercial quantity of narcotic drugs and applying the provisions of 29 DW 1 30 DW 2 31 DW 3 32 DW 4 Page 6 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 Section 31A of the NDPS Act, he was sentenced to death under Section 21(c) read with Section 31A(1a) of the NDPS Act. 5 2.9. Coming to the co-accused Satnam Singh , the learned Judge, Special Court, Chandigarh took note of the fact that he was a government servant working as a Warden in Punjab Jail and was posted at Sangrur at the time of committing the offence, which added to the gravity of the offence. Therefore, he was sentenced under Section 21(c) of the NDPS Act to undergo rigorous imprisonment for a period of twelve years and to pay a fine of ₹ 1,50,000/- (Rupees One lakh and fifty thousand) and in default thereof to further undergo rigorous imprisonment for a period of three years. (d) PROCEEDINGS BEFORE THE HIGH COURT 3. Aggrieved by the aforesaid judgment, both the appellants approached the High Court. A Murder Reference under Section 366 Cr.P.C. was also forwarded to the High Court in view of the death sentence awarded by the Special Court, Chandigarh to the 3 appellant – Balwinder Singh . The entire evidence was analysed afresh by the High 33 Court and relying on the decisions of this Court in Kanhaiyalal vs. Union of India , 34 Ram Singh vs. Central Bureau of Narcotics and Raj Kumar Karwal vs. Union of 35 India wherein, it was held that an order of conviction can be passed solely on the basis of the confession made by the accused under Section 67 of the NDPS Act and that such a confession before the officer of the NCB was admissible in evidence since the NCB officer is not considered as a “police officer” within the meaning of Section 25 of the 33 2008 (4) SCC 668 34 ( 2011) 11 SCC 347 35 ( 1990) 2 SCC 409 Page 7 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 Indian Evidence Act, 1872, both the appellants were convicted under the NDPS Act. For arriving at the said conclusion, the High Court took into consideration the statements 3 5 of Balwinder Singh and Satnam Singh recorded under Section 67 of the Act and held them to be admissible in evidence for being used as confession against them. The 8 10 11 deposition of the prosecution witnesses, namely, PW-1 , PW-2 and PW-5 , who had 5 searched the car of Satnam Singh that had resulted in the recovery of 4 kgs. of heroin, 5 was also relied on by the High Court and it was observed that Satnam Singh was apprehended by the NCB Officers in the vehicle in question and there was sufficient evidence to hold that he was guilty of possession of 4 kgs. of heroin. 3 3.1. Similarly, in the case of Balwinder Singh , the High Court held that his 19 confession recorded under Section 67 of the NDPS Act was admissible in view of the 33 law laid down by this Court in Kanhaiyalal (supra) . The Court noted that neither 5 3 Satnam Singh nor Balwinder Singh had moved any formal application for retracting the confessions made and there was no reason to discard their confessional statements or 8 10 11 to reject the testimonies of the prosecution witnesses [PW-1 , PW-2 and PW-5 ]. Even 3 25 11 22 though Balwinder Singh was not identified by PW-3 and PW-5 , his statement was 5 duly recorded under Section 67 of the NDPS Act and the co-accused, Satnam Singh 3 had also stated in his confessional statement that Balwinder Singh was involved in the crime. Both the confessional statements when read together, were held to be sufficient 3 to hold that Balwinder Singh was guilty of the offence committed. Added to this was the 3 fact that Balwinder Singh had already been convicted and sentenced in a case under the NDPS Act and his appeal against the said conviction was pending at that time in the Page 8 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 High Court. Therefore, he had a propensity towards committing such crimes. The High 3 Court opined that merely because Balwinder Singh had escaped from the car just naka before the point where the had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of heroin. 3.2. The High Court went on to reject the defence version sought to be projected by 5 8 Satnam Singh that Sonu [PW-1] was the real culprit and it was from him that the contraband was recovered but he got away by bribing the NCB team who cleverly 5 planted the contraband in the car driven by Satnam Singh . The plea taken that the other independent witness, Mukesh Kumar though arrayed as a prosecution witness and not produced, was a stock witness of the NCB, was also found to be meritless. The High Court observed that Mukesh Kumar was not examined during the trial since he had been won over by the appellants. As a result of the aforesaid discussion, both, Balwinder 3 5 Singh and Satnam Singh were found to be in conscious possession of commercial quantity of heroin on the relevant date and the findings returned by the trial Court holding them guilty of the commission of offences punishable under Section 21(c) read with Section 8 of the NDPS Act, were upheld. The order of sentence imposed on Satnam 5 Singh of rigorous imprisonment for a period of 12 years was affirmed by the High Court. 3 However, the death penalty awarded to the appellant – Balwinder Singh for being a repeat offender under Section 31A of the NDPS Act, was held to be too harsh a 3 punishment. Resultantly, the death sentence awarded to Balwinder Singh was set aside and the High Court sentenced him to undergo rigorous imprisonment for a period of 14 Page 9 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 years along with fine of ₹ 1,50,000/- [Rupees one lakh fifty thousand only] and in default of payment of fine, suffer imprisonment for one year. Dissatisfied by the aforesaid decision, the appellants have preferred the present appeals. II ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE PARTIES 3 (a) SUBMISSIONS MADE BY COUNSEL FOR BALWINDER SINGH AND 5 SATNAM SINGH 3 4. Mr. Mayank Dahiya, learned counsel for the appellant – Balwinder Singh , argued that his client had been convicted solely on the basis of the purported statement of 5 confession made by the co-accused, Satnam Singh before the NCB officials which is no longer admissible in law, in the light of the decision of this Court in the case of Tofan 36 Singh v. State of Tamil Nadu . It was stated that the High Court was swayed by the 3 fact that at that time, Balwinder Singh was facing three other cases for offences under the NDPS Act but subsequently, he has been acquitted in all the said cases on being extended benefit of doubt. However, in the instant case, he has already undergone the sentence awarded by the High Court during the pendency of the present appeal. 3 4.1. Besides a similar argument advanced by learned counsel for Balwinder Singh 5 that the statement of confession made by Satnam Singh before the NCB officials is not admissible in law and could not be read in evidence against him in view of the recent 36 decision of this Court in Tofan Singh (supra), Mr. Akshay Nagarajan, learned counsel for the said appellant has assailed the impugned judgement primarily on five counts. Firstly, that an offence committed under the NDPS Act being a grave one, all the 36 (2021) 4 SCC 1 Page 10 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 procedural safeguards provided under the Statute to the accused require strict compliance and strict scrutiny and in the instant case, as the prosecution failed to prima facie establish a case, the burden did not shift to the accused. To buttress the said 37 submission, learned counsel has cited Ritesh Chakarvarti v. State of M.P. ; Noor Aga 38 39 v. State of Punjab and Another ; Bhola Singh v. State of Punjab ; State of Delhi v. 40 41 Ram Avatar alias Rama ; and Gorak Nath Prasad v. State of Bihar . 4.2 The second plea taken is that the entire story setup by the prosecution is shaky inasmuch as the independent witnesses who were joined in, have a murky background 8 and their testimonies ought to be disbelieved. The testimony of Sonu has been questioned as untrustworthy and it is stated that he could not be treated as an independent witness in terms of Section 100(4) of the Cr.P.C. It was contended that the High Court has erred in failing to re-evaluate the credibility of the said witness and satisfy itself as to whether he was in fact an independent witness. Thirdly, it was argued that the other independent witness, Mukesh Kumar was arrayed in the list of witnesses but not examined by the prosecution for the reason that he was a stock witness, as would 31 32 emerge from the deposition of DW-3 and DW-4 . Next, it was argued that the case 17 property , mainly the contraband that was allegedly recovered, was not handled 12 properly which is apparent from the fact that in the panchnama the contraband was described as a substance that was white in colour but in his testimony, the Chemical 37 (2006) 12 SCC 321 38 (2008) 16 SCC 417 39 (2011) 11 SCC 653 40 (2011) 12 SCC 207 41 (2018) 2 SCC 305 Page 11 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 19 Examiner , described the contraband to be of light brown colour with lumps. This discrepancy in the contraband pointed out by the defence goes to the root of the matter. 5 4.3 Lastly, it was argued on behalf of Satnam Singh that the High Court ought not to 8 have discarded outright the defence version that it was Sonu [PW-1] who was found to be in possession of the contraband and on his bribing the NCB officers, he was let off 5 whereas Satnam Singh , who was innocent, was framed. Learned counsel submitted 30 that the deposition of DW-2 proved that the landline number on which a phone call was 5 th made by the NCB officers from the mobile phone of Satnam Singh at 09.45 pm on 11 December, 2005, was the official number belonging to the Zonal Director, NCB, Chandigarh and the said evidence once brought on record, was sufficient for the High 5 Court to have discounted the version of the NCB that they had met Satnam Singh for th the first time at the naka on 12 December, 2005, at 03.00 am. Learned counsel 5 concluded by submitting that though Satnam Singh has already undergone the sentence imposed on him, he is pressing the appeal for an acquittal on merits because the appellant was a Government servant who was dismissed from service on having been convicted which order, if reversed, would entitle him to relief in relation to his service benefits. (b) SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE RESPONDENT, NCB 5. On the other hand, learned counsel for the respondent-NCB has supported the impugned judgement and stated that there was ample evidence brought on record by the 3 5 NCB for indicting Balwinder Singh and Satnam Singh . He asserted that none of the Page 12 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 witnesses produced by the NCB were planted, as alleged; that NCB had successfully established a prima facie case against the appellants whereafter the burden had shifted on them to prove their innocence and that they had miserably failed to discharge the said burden; that the prosecution had amply proved the foundational facts to attract the rigours of the NDPS Act and the actus reus , namely possession of contraband by the appellants was convincingly established for holding them guilty of the offence for which they were charged. It was thus stated that the impugned judgement does not deserve interference. III ANALYSIS AND DISCUSSION (a) SIGNIFICANCE OF TOFAN SINGH’S DECISION 6. We have perused the impugned judgement and the records and given our thoughtful consideration to the arguments advanced by learned counsel for the parties. 7. When the present matter was considered by the High Court in the year 2013, it had accepted the arguments advanced by learned counsel for the respondent-NCB that officers of the Department of Revenue Intelligence who are vested with the powers of an officer-in-charge of the police station under Section 53 of the Act, are not “police officers” within the meaning of Section 25 of the Evidence Act and therefore held that a confessional statement of a person accused of an offence under the NDPS Act recorded by such an officer in the course of investigation, is admissible against him. The said argument had found favour with the High Court in the light of the decisions of this Court 33 35 in Kanhaiyalal (supra) and Raj Kumar Karwal (supra) where it was held that a Page 13 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 confession made by the accused before an officer of the NCB, is admissible in evidence because the said officer cannot be treated as a “police officer” within the meaning of Section 25 of the Evidence Act. It was further held that a conviction can be maintained on the sole confession made by an accused under Section 67 of the NDPS Act. A similar 34 view taken by this Court in Ram Singh (supra) , was cited by the High Court to fortify its decision that the confessions made by the appellants herein before the officers of the NCB were admissible in evidence, being of voluntary nature. 8. However, much water has flown under the bridge since the year 2013. In the year 2020, a three-judges Bench of this Court answered a Reference Order of a Division 42 Bench in Tofan Singh v. State of Tamil Nadu and re-examined the ratio of 33 35 Kanhaiyalal (supra) and Raj Kumar Karwal (supra) to decide as to whether the officer investigating a matter under the NDPS Act would qualify as a ‘police officer’ or 36 not. The other related issue which was examined by the larger Bench in Tofan Singh (supra) was whether the statement recorded by the investigating officer under Section 67 of the NDPS Act can be treated as a confessional statement or not even if the officer is not treated as a “police officer”. 9. After a detailed examination of the legal position in the light of the provisions of the NDPS Act, vis-à-vis revenue Statutes like the Customs Act, 1962 and the Central Excise Act, 1944 as also the Cr.P.C and Section 25 of the Evidence Act, the majority decision authored by Justice Nariman, arrived at the following conclusion: 42 (2013) 16 SCC 31 Page 14 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 “155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. 156. The judgment in Kanhaiyalal [ Kanhaiyalal v. Union of India , (2008) 4 SCC 668 : (2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal [ Raj Kumar Karwal v. Union of India , (1990) 2 SCC 409 : 1990 SCC (Cri) 330] in paras 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us. 157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga [ Noor Aga v. State of Punjab , (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs [ Nirmal Singh Pehlwan v. Inspector, Customs , (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555] are correct in law. 158. We answer the reference by stating: 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” [emphasis laid] 10. In view of the aforesaid decision that declares that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. Page 15 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 (b) EFFECT OF TOFAN SINGH’S VERDICT ON BALWINDER SINGH’S CASE 36 11. Now that it has been declared in Tofan Singh’s case (supra) that the 33 35 judgements in the case of Kanhaiyalal (supra) and Raj Kumar Karwal (supra) did not state the correct legal position and they stand overruled, the entire case set up by 3 the prosecution against Balwinder Singh , collapses like a House of cards. It is not in 3 dispute that Balwinder Singh was not apprehended by the NCB officials from the spot 5 where the naka was laid and that Satnam Singh alone was apprehended in the Indica 5 car. The version of the prosecution is that after Satnam Singh was arrested, his 13 statement was recorded under Section 67 of the NDPS Act wherein he ascribed a 3 specific role to the co-accused - Balwinder Singh and the Sarpanch . The NCB officers claimed that they were on the lookout for both of them since they had managed to run away from the spot. While Sarpanch could not be apprehended, the NCB officers learnt from reports in the newspaper that Balwinder had been arrested by the Amritsar Police in an NDPS case and was lodged in the Central Jail, Amritsar. Permission was taken 3 from the concerned Court to take Balwinder Singh into custody in the instant case and 21 he was arrested. A notice was served on him under Section 67 of the NDPS Act and 22 22 his statement was recorded. Treating his statement as a confessional statement, 3 Balwinder Singh was arrested. 13 5 12. Once the confessional statement of the co-accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to 3 22 3 Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Page 16 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 36 Tofan Singh (supra), there is no other independent incriminating evidence that has 3 been brought to the fore by the prosecution for convicting Balwinder Singh under the 13&22 NDPS Act. On ignoring the said confessional statements recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder 3 Singh and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained. 3 13. As a result of the above discussion, we are of the opinion that Balwinder Singh deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly. (c) HOW IS SATNAM SINGH’S CASE PLACED ON A DIFFERENT FOOTING 5 14. We next come to the case of the appellant, Satnam Singh . Again, as in the case 3 13 5 of Balwinder Singh , the statement made by Satnam Singh and recorded under Section 67 of the NDPS Act will have to be discarded outright as it cannot be used as a confessional statement having been recorded by the NCB officials who, in terms of the 36 verdict in Tofan Singh’s case (supra) are to be treated as “police officers” under the 3 provisions of Section 25 of the Evidence Act. But unlike the case of Balwinder Singh , 5 13 the conviction of Satnam Singh does not hinge solely on his confessional statement made to the NCB officials. His case is on a different footing because it also rests on other relevant factors including the testimonies of three prime prosecution witnesses 8 25 11 namely, Sonu [PW-1], P.K. Sharma [PW-3] and O.P. Sharma [PW-5]. We propose to discuss below that their testimonies when examined carefully, show that they had Page 17 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 remained consistent and unfailing. There appear no material contradictions or deviations in their depositions for this Court to extend any benefit to the appellant – 5 Satnam Singh . (d) “ PROOF BEYOND REASONABLE DOUBT VIS-À-VIS “PREPONDERANCE OF PROBABILITY” : LEGAL POSITION 15. We may first test on the anvil of settled law, the plea taken by learned counsel for 5 the appellant – Satnam Singh that the prosecution had failed to establish a prima facie case against the accused and therefore, the burden of proving his innocence did not shift 38 back to him. In the case of Noor Aga (supra), a two-Judges Bench of this Court was required to decide several questions, including the constitutional validity of the NDPS Act and the standard and extent of burden of proof on the prosecution vis-à-vis the accused. After an extensive discussion, this Court upheld the constitutional validity of the 43 provisions of Sections 35 and 54 of the NDPS Act , but went on to hold that since the provisions of the NDPS Act and the punishments prescribed therein are stringent, the extent of burden to prove the foundational facts cast on the prosecution, would have to be more onerous. The view taken was that courts would have to undertake a 43 35. Presumption of culpable mental state —(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation —In this section “culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 54. Presumption from possession of illicit articles —In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of— (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. Page 18 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 heightened scrutiny test and satisfy itself of “ proof beyond all reasonable doubt ”. Emphasis was laid on the well-settled principle of criminal jurisprudence that more serious the offence, the stricter would be the degree of proof and a higher degree of assurance would be necessary to convict an accused. [Also refer: State of Punjab v. 44 45 39 Baldev Singh , Ritesh Chakarvarti v. State of M.P. and Bhola Singh (supra)]. 16. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. In the words of Justice Sinha, who speaking for the 38 Bench in Noor Aga (supra), had observed that:

The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt. 44 (1999) 6 SCC 172 45 (2006) 12 SCC 321 Page 19 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 (e) PLEA OF FAILURE TO ESTABLISH FOUNDATIONAL FACTS 5 17. The submission made by learned counsel for the appellant – Satnam Singh that the prosecution failed to establish the underlying facts of possession of the contraband 5 by Satnam Singh 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 5 9 the appellant – Satnam Singh who was driving the car , when he was accosted at the spot where the naka was laid by the NCB Officers on the relevant date. A photocopy of 9 the registration certificate of the car was recovered on a search of the appellant – 9 5 9 Satnam Singh . He was the owner of the car . The car was searched by the NCB Officers in the presence of two independent witnesses. The contraband was recovered 9 5 from the car being driven by the appellant – Satnam Singh in the presence of the 25 independent witnesses and P.K. Sharma, a Gazetted Office , 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 8 witness [Sonu ] was consistent and nothing material could be elicited by the accused during his cross-examination. 22 18. Through the deposition of the Chemical Examiner [S.K. Mittal ], the prosecution 20 successfully proved the report submitted by him stating inter alia that on testing the 18 9 samples , the substances drawn from the bags recovered from the car of the appellant 5 18 – Satnam Singh , were heroin. The samples drawn and sealed were found 10 untampered and the testimony of Constable Balwinder Kumar corroborated the fact Page 20 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 18 that he had carried the samples with him and deposited them with the CRCL, New th Delhi on 14 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 5 9 proving that the appellant – Satnam Singh had the knowledge that the car 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 5 adequate evidence to prove beyond reasonable doubt that the accused – Satnam Singh 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 offence for which he had been charged. 40 20. As has been observed by this Court in the case of Ram Avatar alias Rama (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. 5 21. The argument advanced on behalf of the appellant – Satnam Singh that both the courts below have erred in discarding the defence taken by him to the effect that it was 8 Sonu who was the real culprit and was apprehended by the NCB officers with the contraband, but he was let off on bribing the NCB officers, does not meet the test of Page 21 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 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 5 22. Another plea taken by the appellant – Satnam Singh is that he was in the th custody of the NCB officers much before the point in time when the naka was laid on 11 19 December, 2005. The deposition of witness produced by him, Soravdeep Singh [DW- th 1] to substantiate that a call was made from his mobile number at 09.54 PM on 11 December, 2005 when he had already been detained by the NCB officers, to a landline number installed in the Office of the Zonal Director at Chandigarh, was not of any assistance as the mobile phone bills summoned by the appellant were not proved in 46 accordance with law. The trial Court observed that the bill in question 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 5 that the mobile phone number asserted by the appellant – Satnam Singh as belonging to him, stood in his name. We see no reason to take a different view. 23. Reliance placed by learned counsel on the decisions in Dudh Nath Pandey v. 47 48 State of Uttar Pradesh , State of Haryana v. Ram Singh , Adambhai Sulemanbhai 49 50 Ajmeri and Others v. State of Gujarat and Jumi and Others v. State of Haryana to urge that defence witnesses are entitled to equal treatment with those produced by 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 Page 22 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 the prosecution and different yardsticks cannot be prescribed for prosecution witnesses as compared to defence witnesses is a well-settled principle of criminal jurisprudence, 5 but cannot take the case of the appellant – Satnam Singh 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 5 favour shown to the prosecution witnesses from the appellant-Satnam Singh to claim any bias. (g) PLEA OF UNRELIABILITY OF THE TESTIMONY OF THE INDEPENDENT WITNESS, SONU 5 24. As for the contention of learned counsel for the appellant – Satnam Singh that 8 the testimony of Sonu 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 : “ 100. Persons in charge of closed place to allow search – (4). Before making a search under this Chapter, the officer 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, office, shop, a built-up premises etc, where a search is required to be Page 23 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 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 officials 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 th a.m. on 12 December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were flagged down by the NCB officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast 8 on the testimony of Sonu 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 31 32 defence witnesses, Parkash Ram and Ravi Kant Pawar produced by the appellant – 5 Satnam Singh 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 5 learned counsel for the appellant – Satnam Singh 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 5 up by the prosecution against the appellant – Satnam Singh . (IV) CONCLUSION 27. In view of the aforesaid discussion, we are of the opinion that the appellant – 5 Satnam Singh has failed to make out a case for acquittal. Therefore, the order of Page 24 of 25 Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 5 conviction and the sentence imposed on Satnam Singh is maintained. Criminal Appeal No. 1933 of 2014 is accordingly dismissed and the order of conviction and the sentence 5 imposed on Satnam Singh by trial Court and upheld by the High Court is affirmed. However, Criminal Appeal No.1136 of 2014 is allowed and the appellant, Balwinder 3 Singh is acquitted. …............................................ J. [B.R.GAVAI] ……….................................... .J. [HIMA KOHLI] ……….................................... J. [PRASHANT KUMAR MISHRA] New Delhi, September 22, 2023 Page 25 of 25