TMI Blog2019 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure of the contraband being from gunny bags, Section 50 of the NDPS Act had no application. Merely because the two independent witnesses were not from the same locality, would not ipso facto amount to violation of Section 100(4), Cr.P.C. 4. Shri Dhruv Pall, learned counsel for the appellant submitted that the appellant had been falsely implicated because he had lodged a complaint against the C.I.D., for improper investigation in the case relating to his father s death. PW5, Naresh Kumar, the independent witness, had turned hostile and did not support the prosecution case with regard to search and seizure. The second independent witness Jeevan Kumar, was withheld by the prosecution without any explanation. In the facts of the case, the absence of independent witnesses from the same locality as required by Section 100(4) Cr.P.C. assumes importance. PW10 SubInspector Prem Singh, being the informant himself, was also the Investigating Officer, and which alone vitiates the conviction irrespective of all other issues. Strong reliance was placed on a recent decision of this Court in Mohan Lal vs. State of Punjab, AIR 2018 SC 3853. 5. Shri Abhinav Mukerji, learned counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. There is no material for us to conclude that PW5 and the other independent witness Jeevan Kumar were not respectable persons. Given the very short span of time in which events took place it is not possible to hold any violation of Section 100(4) Cr.P.C. In any event, no prejudice on that account has been demonstrated. Sections 52 and 57 of NDPS Act being directory in nature is of no avail to the appellant. 8. The appellant took a defence under Section 313 Cr.P.C. of false implication but failed to produce any evidence with regard to the complaint lodged by him against the C.I.D. department, a fact noticed by the Trial Court itself. We therefore find no reason to come to any different conclusion than that arrived at by the High Court. 9. 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 (supra). The ground not having been raised at any earlier stage quite obviously, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he potential offender. Human rights are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole. 13. Law has to cater to wide variety of situations as appear in society. Law being dynamic, the certainty of the legislation appears rigid at times whenever a circumstance (set of facts) appears which is not catered for explicitly. Expediency then dictates that the higher judiciary, while interpreting the law, considers such exception(s) as are called for without disturbing the pith and substance and the original intention of the legislature. This is required primarily for the reason to help strike a balance between competing forces justice being the end and also because the process of fresh legislation could take a long time, which would mean failure of justice, and with it erosion of public confidence and trust in the justice delivery system. 14. The principle of fair trial now informs and energises many areas of the law. It is a constant, ongoing, evolutionary process continually adapting itself to changing circumstances, and endeavouring to meet the exigencies of the situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government, HUDA and the parties to whom the allotments have been made have acted upon and adjusted their affairs in terms of the said decision, to disturb that state of affairs on the basis that now certain other rigorous principles are declared to be applied in Anil Sabharwal case [(1997) 2 Punj LR7] would be setting the rules of the game after the game is over, by which several parties have altered their position to their disadvantage. Therefore, we think that in the larger public interest and to avoid the discrimination which this Court had noticed in the order dated 5.12.1997 [(1998) 8 SCC 373] the decision of the High Court in Anil Sabharwal case should be made effective from a prospective date and in this case from the date on which interim order had been passed on 23.4.1996. Therefore, it would be appropriate to fix that date as the date from which the judgment of the High Court would become effective. If this course is adopted, various anomalies pointed out in respect of different parties referred to above and other instances which we have not adverted to will be ironed out and the creases smoothened so that discrimination is avoided. 7. Prospective declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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