MAKHAN SINGH versus STATE OF HARYANA
[2015] 5 S.C.R. 789, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2015] 5 S.C.R. 789 
MAKHAN SINGH 
v. 
STATE OF HARYANA 
(Criminal Appeal No. 682of2015) 
APRIL 21, 2015 
[T.S. THAKUR AND R. BANUMATHI, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
A 
B 
ss. 15 - Recovery of contraband from the vehicle driven by C 
the accused- Conviction by courts below- On appeal, held: 
The independent witnesses have not supported the 
prosecution case and recovery of the contraband not 
satisfactorily proved- The conviction solely based on official 
witnesses cannot be sustained - Accused liable to be D 
acquitted. 
s. 50- Scope of- Conviction u/s. 15 of the NDPS Act..,. 
Reliance on compliance of s.50 - Held: Mere compliance 
with s. 50 by itself would not be sufficient to establish the guilt E 
of the accused - s. 50 comes into play only in the case of 
personal search of the accused - In the present case s. 50 
was not applicable as the recovery was not from the person 
of the accused but from the vehicle driven by him. 
F 
Evidence: 
Official witnesses- Evidentiary value - Held: Conviction 
can be based solely on the testimony of official witnesses, 
only if evidence of such witnesses inspire confidence and G 
not by overlooking evidence of independent witnesses. 
Proof - Standard of - Held: The more stringent the 
punishment is, the more heavy is the burden on the 
prosecution - In the cases of NDPS Act, the punishment is H 
789
790 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A severe, hence strict proof is required for proving the search, 
seizure and the recovery- Narcotic Drugs and Psychotropic 
Substances Act, 1985 - Criminal Jurisprudence. 
B 
Allowing the appeal, the Court 
HELD: 1.1. For recording the conviction, the courts 
below mainly relied on the testimony of official witnesses 
and found them sufficiently strengthening the recovery 
of the possession from the appellant. The manner in 
C which the alleged recovery has been made, does not 
inspire confidence and undue credence has been given 
to the testimony of official witnesses, who are generally 
interested in securing the conviction. In peculiar 
circumstances of the case, it may not be possible to find 
o out independent witnesses at all places at all times. 
Independent witnesses who live in the same village or 
nearby villages of the accused are at times afraid to come 
and depose in favour of the prosecution. Though it is 
well-settled that a conviction can be based solely on the 
E testimony of official witnesses, condition precedent is 
that the evidence of such official witnesses must inspire 
confidence. In the present case, it is not as if independent 
witnesses were not available. Independent witnesses 
PW1 and another independent witness examined as 
F DW2 has spoken in one voice that the accused person 
was taken from his residence. In such circumstances, 
the High Court ought not to have overlooked the 
testimony of
independent witnesses, especially when it 
casts doubt on the recovery and the genuineness of the 
G prosecution version. [Para 10) [795-E-H; 796-A-C] 
State of Punjab v. Baldev Singh (1999) 6 SCC 172 -
followed. 
H 
1.2. The High Court discarded the evidence of PW1
MAKHAN SINGH v. STATE OF HARYANA 
791 
and DW2 observing that these independent witnesses A 
hail from the same village to which accused belongs and 
the accused might have approached the witnesses 
through respectables of the village to resile from his 
statement. That apart, the High Court also observed that 
both the independent witnesses did not explain the B 
circumstances or compulsions in which they had to sign 
the blank papers. The reasoning of the High Court is 
based more on assumptions than on acceptable basis. 
When PW1 and DW2 have asserted that they have signed 
only the blank papers, the courts below ought to have C 
considered them in proper perspective. [Para 9] [795-B-
D] 
2.1. Compliance with Section 50 of the NDPS Act will 
come into play only in the case of personal search of D 
the accuse~ and not of some baggage like a bag, article 
or container, etc. which the accused may be carrying 
ought to be searched [Para 15] [798-C] 
State of H.P v. Pawan Kumar(2005) 4 SCC 350; Ajmer 
E 
Singh v. State of Haryana, (2010) 3 SCC 746 - relied 
on. 
2.2. In the present case, since the vehicle was 
searched and the contraband was seized from the F 
vehicle, compliance with Section 50 of the NDPS Act was 
not required. In the absence of independent evidence, 
connecting the appellant with the vehicle, mere 
compliance with Section 50 of the NDPS Act by itself 
would not be sufficient to establish the guilt of the G 
appellant. [Para 16] [799-B] 
. 3. It is a
well-settled principle of the criminal 
jurisprudence that more stringent the punishment, the 
more heavy is the burden upon the prosecution to prove H
792 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A the offence. When the independent witnesses PW1 and 
DW2 have not supported the prosecution case and the 
recovery of the contraband has not been satisfactorily 
proved, the conviction of the appellant under Section 
15 of the NDPS Act cannot be sustained. Since in the 
B cases of NDPS Act the punishment is severe, therefore 
strict proof is required for proving the search, seizure 
and the recovery. [Paras 16, 17] [799-C-D, E] 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
C No. 682 of 2015. 
D 
E 
From the Judgment and Order dated 10.12.2007 of the 
High Court of Punjab and Haryana at Chandigarh in Criminal 
Appeal No. 777-SB of 1996. 
Chanchal Kumar Ganguli, Naramada for the Appellant. 
Rahul Verma, AAG. Vishwa Pal Singh for the Respondent. 
The Judgment of the Court was delivered by 
R. BANUMATHI, J. 1. Delay condoned. Leave granted. 
2. This appeal arises out of the judgment dated 
10.12.2007 passed by the High Court of Punjab and Haryana 
at Chandigarh in Criminal Appeal No.777-SB of 1996, 
F whereby the High Court affirmed the conviction of the appellant 
under Section 15 of the Narcotic Drugs and Psychotropic 
Substances Act, 1985 (for short 'the NDPSAct') and also the 
sentence of imprisonment of ten years along with a fine of 
G Rs.1,00,000/- imposed on the appellant. 
3. Briefly stated case of prosecution is that on 
27.07.1994, the police officials during patrolling, when talking 
with one Manjeet Singh-PW1 and
Gamdur Singh-DW2, saw 
H the suspicious 'fitter-rehra' (a vehicle) driven by the appellant.
MAKHAN SINGH v. STATE OF HARYANA 
793 
[R. BANUMATHI, J.] 
Police intercepted the vehicle and questioned the appellant A 
about his whereabouts, and found some dubious bags lying in 
the vehicle. Before searching the bags, police intimated to 
the appellant that instead of being searched by police whether 
he wishes to be searched by a Gazetted Officer or a Magis-
trate and the appellant declined to be searched by them and a B 
consent memo (Ext.PA) was drawn. Then, the police in the 
presence of independent witnesses, i.e. Manjeet Singh and 
Gamdur Singh, conducted the search and during the search, 
three bags containing commercial quantity of poppy husk ( 120 
kgms.) were recovered from the appellant's vehicle. Police C 
seized the bags, took sample of 200 grams from each of the 
bag and sealed them separately, and then sealed the remain-
ing quantity in separate parcels and deposited the same with 
MHC. The sealed samples were sent to Chemical Examiner, D 
· who vide his report (Ext. PK) found the samples to be 'Pow-
dered Poppy Husk'. On completion of investigation, police laid 
the chargesheet against the appellant under Section 15 of 
NPPSAct. 
4. Prosecution to prove their case examined as many as E 
six witnesses. Out of two independent witnesses in the case, 
Manjeet Singh-PW1 turned hostile and Gamdur Singh was won 
over by the defence and had been examined as defence wit-
ness DW2. Defence examined one more witness, viz. Jaswant F 
Singh-DW1. 
5. The Sessions
Court, after considering the evidence 
held that the prosecution proved the guilt of the accused 
beyond all reasonable doubt and thereby convicted the G 
appellant under Section 15 of the NDPS Act and sentenced 
him to undergo rigorous imprisonment for ten years and to 
pay a fine of Rs. 1,00,000/- and in default, to undergo rigorous 
imprisonment for two years. Appellant, being aggrieved, filed 
the appeal challenging the conviction and sentence of H
794 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A imprisonment before the High Court. The High Court held that 
the evidence of PW6-lnspector Raghbir Singh and PW2-
H.C.Suraj Mal is unimpeachable and vide impugned judgment 
dated 10.12.2007 confirmed the conviction of the appellant 
B 
and dismissed the appeal. 
6. Challenging his conviction, the appellant has 
approached this Court with a contention that he has been falsely 
implicated in the case and that he was brought from his house 
and was put behind the bars. Learned counsel for the appellant 
C contended that the case of the prosecution is based solely on 
the testimony of official witnesses PW2 and PW6 and much 
weightage ought not to have been attached to their testimony, 
especially by discarding the testimony of both the defence 
witnesses. It was submitted that since both the independent 
D witnesses did not support the prosecution story, the prosecution 
has not proved its case beyond reasonable doubt and this 
material aspect has been ignored by the courts below. 
Appellant also alleges that non-compliance of mandatory 
provisions under Sections 50 and 52 of the NDPS Act vitiates 
E the alleged recovery of contraband. 
7. Per contra, learned counsel for the respondent-State 
has supported the impugned judgment and submitted that the 
provisions of Section 50 of the NDPS Act has been duly 
F complied with and the concurrent findings of the courts below 
recording the verdict of conviction cannot be interfered
with. 
8. During the trial, PW1-Manjeet Singh was declared 
hostile by the prosecution and another independent witness 
G Gamdur Singh was examined as defence witness. Both PW1 
and DW2 have deposed that the appellant was not arrested in 
their presence nor any recovery was made from him. PW1 
and DW2 have further deposed that when they went to police 
station for some work, they saw the appellant already in custody 
H of police and that their signatures were obtained on the blank
MAKHAN SINGH v. STATE OF HARYANA 
795 
[R. BANUMATHI, J.] 
papers. In his cross-examination, though DW2 has admitted A 
that Ext. PB bears his signature at point·~, he disowned his 
statement in Ext.PL recorded under Section 161 of the Criminal 
Procedure Code. Though PW1 turned hostile, his evidence 
cannot be discarded as his testimony draws support from the 
version of DW1 and DW2. 
B 
9. The High Court discarded the evidence of PW1 and 
DW2 observing that the independent witnesses hail from the 
same village to which accused belongs and the accused might 
have approached the witnesses through respectables of the C 
village to resile from his statement. That apart, the High Court 
also observed that both the independent witnesses did not 
explain the circumstances or compulsions in which they had 
to sign the blank papers. The reasoning of the High Court is 
based more on assumptions than on acceptable basis. When D 
PW1 and DW2 have asserted that they have signed only the 
blank papers, the courts below ought to have considered them 
in proper perspective. 
10. For recording the conviction, the Sessions Court as 
E 
well as the High Court mainly relied on the testimony of official 
witnesses who made the recovery, i.e. H.C. Suraj Mal-PW2 
and Inspector Raghbir Singh-PW6, and found them sufficiently 
strengthening the recovery of the possession from the appellant. 
In our considered view, the manner in which· the alleged 
F 
recovery has been made does not inspire
confidence and 
undue credence has been given to the testimony of official 
witnesses, who are generally interested in securing the 
conviction. In peculiar circumstances of the case, it may not 
be possible to find out independent witnesses at all places at G 
all times. Independent witnesses who live in the same village 
or nearby villages of the accused are at times afraid to come 
and depose in favour of the prosecution. Though it is well-
settled that a conviction can be based solely on the testimony H
796 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A of official witnesses, condition precedent is that the evidence 
of such official witnesses must inspire confidence. In the 
present case, it is not as if independent witnesses were not 
available. Independent witnesses PW1 and another 
independent witness examined as DW2 has spoken in one 
B voice that the accused person was taken from his residence. 
c 
In such circumstances, in our view, the High Court ought not to 
have overlooked the testimony of independent witnesses, 
especially when it casts doubt on the recovery and the 
genuineness of the prosecution version. 
11. It is to be pointed out that the prosecution misdirected 
itself by unnecessarily focusing on Section 50 of the NDPS 
Act, when the fact is that the recovery has been made not from 
the person of the appellant but from the fitter-rehra which was 
D allegedly driven by the appellant and, thus, Section 50 of the 
NDPSAct had no application at all. The prosecution ought to 
have endeavoured to prove whether the appellant had some 
nexus with the seized fitter-rehra. Though the police has seized 
the fitter-rehra (Ext. PB), the prosecution has not adduced any 
E evidence either by examining the neighbours or others to bring 
home the point that the appellant was the owner or possessor 
of the vehicle. PW6 admitted in his cross-examination that 
signature or thumb impression of the appellant was not 
F obtained on the recovery memo (Ext. PB). In our opinion,
courts 
below erred in attributing to the appellant the onus to prove 
that wherefrom fitter-rehra had come, especially when 
ownership/ possession of fitter-rehra has not been proved by 
the prosecution. 
G 
12. Jaswant Singh, who is a Sarpanch of the village and 
was examined as DW1, has supported the defence version 
that the appellant was taken away by the police from his home 
and he was falsely implicated. When the defence hastaken 
H the specific stand that the appellant was taken from his house
MAKHAN SINGH v. STATE OF HARYANA 
797 
[R. BANUMATHI, J.] 
by the police and that stand has been corroborated by the A 
testimony of DW1, the prosecution ought to have adduced 
cogent evidence that the alleged fitter-rehra on which the 
appellant was alleged to be carrying 120 kilograms of poppy 
husk belongs to the appellant. Failure to adduce the evidence 
connecting the appellant with the fitter-rehra that the ownership/ B 
possession of fitter-rehra with the appellant is fatal to the 
prosecution case, benefit of which ought to have been given 
to the accused. 
13. Both the Sessions Court and the High Court C 
concurrently held that the mandatory provisions of Section 50 
of the NDPS Act have been duly complied with. Sessions 
Court observed that it is not necessary that in each and every 
case the accused should be produced before the Gazetted 
Officer or the Magistrate and if the accused so desires, then D 
only he is to be produced before either of them. In Ext.PA/1, 
Investigating Officer used the word 'Nyayadeesh' instead of 
'Magistrate' does not mean that the Investigating Officer meant 
something else. 
14. A Constitution Bench of this Court in State of Punjab 
v. Baldev Singh, (1999) 6 SCC 172, while dealing with the 
scope of Section 50 of the NDPSAct, had emphasized upon 
E 
the aspect of availability of right of an accused to have 'personal 
search' conducted before a Gazetted Officer or a Magistrate F 
and held as under: 
"32 ... The protection provided in
the section to an 
accused to be intimated that he has the right to have his 
personal search conducted before a Gazetted Officer G 
or a Magistrate, if he so requires, is sacrosanct and 
indefeasible- it cannot be disregarded by the prosecution 
except at its own peril. 
33. The question whether or not the safeguards provided 
H
798 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A in Section 50 were observed would have, however, to be 
determined by the court on the basis of the evidence led at the 
trial and the finding on that issue, one way or the other, would 
be relevant for recording an order of conviction or acquittal. 
Without giving an opportunity to the prosecution to estc::blish 
B at the trial that the provisions of Section 50, and particularly, 
the safeguards provided in that section were complied with, it 
would not be advisable to cut short a criminal trial." 
15. Compliance with Section 50 of the NDPSActwill come 
C into play only in the case of personal search of the accused 
and not of some baggage like a bag, article or container, etc. 
which the accused may be carrying ought to be searched. In 
State of H. P v. Pawan Kumar, (2005) 4 SCC 350, this Court 
D 
E 
F 
G 
in Para (11) has held as under: 
"11. A bag, briefcase or any such article or container, 
etc. can, under no circumstances, be treated as body of 
a human being. They are given a separate name and 
are identifiable as such. They cannot even remotely be 
treated to be part of the body of a human being. 
Depending upon the physical capacity of a person, he 
may carry any number of items like a bag, a briefcase, a 
suitcase, a tin box, a thaila, ajho/a, a gathri, a holdall, a 
carton, etc. of varying size, dimension or weight. 
However, while carrying or moving along with them, some 
extra effort or energy would be required.
They would have 
to be carried either by the hand or hung on the shoulder 
or back or placed on the head. In common parlance it 
would be said that a person is carrying a particular article, 
specifying the manner in which it was carried like hand, 
shoulder, back or head, etc. Therefore, it is not possible 
to include these articles within the ambit of the word 
"person" occurring in Section 50 of the Act." 
H 
Same view was reiterated in Ajmer Singh v. State of
MAKHAN SINGH v. STATE OF HARYANA 
799 
[R. BANUMATHI, J.] 
Haryana, (2010) 3 SCC 7 46. 
A 
16. In the present case, since the vehicle was searched 
and the contraband was seized from the vehicle, compliance 
with Section 50 of the NDPS Act was not required. In the 
absence of independent evidence connecting the appellant B 
with the fitter-rehra, mere compliance with Section 50 of the 
NDPSAct by itself would not be sufficient to establish the guilt 
of the appellant. It is a well-settled principle of the criminal 
jurisprudence that more stringent the punishment, the more 
heavy is the burden upon the prosecution to prove the offence. C 
When the independent witnesses PW1 and DW2 have not 
supported the prosecution case and the recovery of the 
contraband has not been satisfactorily proved, the conviction 
of the appellant under Section 15 of the NDPS Act cannot be 
sustained. 
D 
17. Section 15 provides for punishment for contravention 
in relation to poppy straw. The maximum punishment provided 
in the section is imprisonment of twenty years and fine of two 
lakh rupees and minimum sentence of imprisonment of ten E 
years and a fine of one lakh rupee. Since in the cases of NDPS 
Act the punishment is severe, therefore strict proof is required 
for proving the search, seizure and the recovery. 
18. The conviction of the appellant and the sentence F 
imposed on him is set aside and this appeal is allowed. Fine 
amount of Rs.1,00,000/-, if paid, is ordered to be refunded to
the appellant. The appellant is ordered to be set at liberty 
forthwith unless required in any other case. 
Kalpana K. Tripathy 
Appeal allowed. 
G