Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2019 (2) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (2) TMI 548 - SC - Indian LawsSmuggling of contraband item - Charas - Section 20(ii)(c) of NDPS Act - seizure of the contraband from gunny bags - applicability of Section 50 of NDPS Ac - reliability on a recent decision of this Court in Mohan Lal vs. State of Punjab [2018 (8) TMI 963 - SUPREME COURT OF INDIA]. Held that:- Section 50 of NDPS Act patently has no application since the recovery was not from the person of the appellant but the gunny bags carried on the scooter. PW5 the independent witness who had signed the search and seizure documents but turned hostile, was duly confronted under Section 145 of the Evidence Act, 1872 with his earlier statements to the contrary under Section 161 Cr.P.C. and did not deny his signatures. The order sheet dated 08.11.1995 of the Trial Court reveals that independent witness Jeevan Kumar was present on that date to depose, but was bound down on objection from the defence side that he be examined on another date along with other witnesses. It is therefore very reasonable to conclude that the witness did not appear subsequently because he may have been won over by the appellant. There is no material to conclude that the witness was withheld or suppressed by the prosecution with any ulterior motive. The only issue surviving for consideration is with regard to the prosecution being vitiated because PW10 was the informant as also the Investigating Officer, in view of Mohan Lal - In Mohan Lal our attention had been invited to the divergent views being taken on the issue with regard to the informant and the investigating officer being the same person in criminal prosecutions, and the varying conclusions arrived at in respect of the same. The facts in Mohan Lal, were indeed extremely telling in so far as the defaults on part of the prosecution was concerned. In that back ground it was held that the issue could not be left to be decided on the facts of a case, impinging on the right of a fair trial to an accused under Article 21 of the Constitution of India. Societal interest therefore mandates that the law laid down in Mohan Lal cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Criminal jurisprudence mandates balancing the rights of the accused and the prosecution. If the facts in Mohan Lal were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused. There is a history of previous convictions of the appellant also. We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. All pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal shall continue to be governed by the individual facts of the case - appeal dismissed.
|