IMPORTANT POINT
Conviction can be based on sole testimony of official witness if inspiring confidence.
When physical possession has been proved, burden shifts on the accused that his possession of the contraband was not conscious possession.

JUDGMENT

R. BANUMATHI, J.

Challenge in this appeal is the judgment dated 29.05.2003 passed by the High Court of Punjab and Haryana in Criminal Appeal No.39-DBA of 1995, wherein the High Court reversed the judgment of acquittal passed by the Sessions Judge, Sirsa and convicted the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) on account of having been found in possession of poppy husk and sentenced him to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,50,000/-and in default to undergo rigorous imprisonment for six months.

2. Briefly stated case of the prosecution is that on 16/17.09.1990 mid night at about 12.15 a.m., Chander Singh-SI alongwith Ram Singh-ASI and team of police personnel with Government Jeep No. HNN 3108 and a private jeep were holding Nakabandi on both sides of Kacha path leading to village Kingre from G.T. Road for detection of the contraband. At that time, a tractor No.RJV 6299 with trolley was heading towards the road from the village and the same was stopped and the appellant was apprehended and he was inquired about the gunny bags of poppy husk lying in the trolley. The appellant was served with a written notice to the effect that as to whether he wanted to be examined before First Class Magistrate or Gazetted Officer in connection with the recovery of poppy husk from his trolley. The appellant had shown faith in Sub Inspector-Chander Singh and as per rules Sub-Inspector searched the trolley. Thirty three yellow coloured gunny bags containing poppy husk were recovered from the trolley attached to tractor and on weighing the bags, each bag was found to be of forty kilograms i.e. in total about thirteen quintals and twenty kilograms of poppy husk was recovered. From each bag, sample of hundred grams was taken out and parcels were made and remaining poppy husk lying in the gunny bags were sealed with seal ‘CS’ and were seized and taken into police possession alongwith the said tractor with its trolley. On the basis of rukka, case bearing No.234 dated 17.09.1990 under Sections 15, 16, 61 and 85 of the NDPS Act was registered at P.S. Sadar, Dabwali. Subsequently, samples were sent for chemical analysis and were found to be poppy straw. On completion of investigation, chargesheet was filed under Sections 15 and 16 of the NDPS Act.

3. To substantiate the charges against the appellant, the prosecution examined only one witness Ram Singh-ASI-PW-1, affidavits of MHC Mohinder Singh and Constable Om Prakash and also the documents including FSL Report were filed. Sessions Judge, Sirsa vide its judgment dated 22.04.1994 acquitted the appellant observing that no other witness except Ram Singh-PW-1 was examined and that Ram Singh-PW-1’s evidence was not trustworthy to base the conviction. Aggrieved by the verdict of acquittal, State preferred appeal before the High Court of Punjab and Haryana at Chandigarh. The High Court vide impugned judgment reversed the judgment of acquittal and convicted the appellant under Section 15 of NDPS Act and sentenced him to undergo rigorous imprisonment and imposed fine as aforesaid. Aggrieved, the appellant has filed the instant appeal.

4. Learned Senior Counsel for the appellant Mr. Anmol Rattan Sidhu submitted that Chander Singh-SI was an important witness as he was the person who held the Nakabandi and prepared rukka and non-examination of Chander Singh is fatal to the prosecution case. It was contended that testimony of Ram Singh-PW-1 does not warrant credibility as he could not have been present at two places i.e. at the place of arrest of appellant-Baldev Singh and also at the place of arrest of one Bhoop Singh in connection with another FIR bearing No.235 dated 17.09.1990 at P.S. Sadar at 5.30 a.m. in which one Bhoop Singh was arrested while carrying opium which renders the presence of Ram Singh-ASI in the place of recovery highly doubtful which aspect was not properly appreciated by the High Court and the