TMI Blog2019 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ve its case beyond reasonable doubts. Appeal allowed. - Cr. Appeal No. 305 of 2011 - - - Dated:- 7-8-2019 - The Hon ble Mr. Justice Sureshwar Thakur, Judge. And The Hon ble Mr. Justice Anoop Chitkara, Judge. For the appellant: Mr. Harish Sharma, Advocate, for the appellant. For the respondent: Mr. Hemant Vaid And Mr. Desh Raj Thakur, Addl. Advocate Generals with Mr. Yudhvir Singh Thakur, Deputy Advocate General for the respondent-State. ORDER Per: Anoop Chitkara, Judge. Hon ble Supreme Court of India, vide its order dated 25th October 2017, has remanded this matter to this Court. The order reads as follows, Leave granted. Heard learned counsel for the parties. Learned counsel for the State points out that the main reason mentioned in the impugned order for disbelieving the testimony of the witness is that the register of the Hotel where the witness stayed had not been produced. It is also pointed out that some other reasons are also not sound. We are of the view that approach adopted by the High Court in the impugned judgment is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded that at 6.10, in the evening, HC Lakshman Dass (PW-14), Constable Vinod Kumar (PW-2) and Constable Jitender Kumar (not examined), departed towards Sundernagar, on the directions of the Superintendent of Police. (c) When the police party was on their way, HC Tek Chand (PW-1) also joined the patrolling party. (d) The further case of the prosecution, as revealed from the complaint under Section 154 CrPC (Ruka)(Ext. PW-14/A), is that HC-Lakshman Dass (PW-14), Investigating Officer, Special Investigating Unit, Mandi, along with HC-Tek Chand (PW-1), Constable Jitender Kumar (not examined) and Constable Vinod Kumar (PW-2) were on patrolling duty, in a private vehicle, to detect crime under the NDPS Act. They had proceeded towards Sundernagar and Karsog etc. The police party was patrolling through a trail leading from Kotla to Tewan. On 28.7.2010, at around 6.15 a.m., at a place near Tewan, on that trail, one person was noticed, who was carrying a pink-colored polythene packet in his right hand. On seeing the police party, such person became perplexed and started turning back. On this, the police party captured him and inquired about his name. The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he written complaint (Ext. PW-14/A) (Ruka), mentioning all the above facts, and sent it to SHO Police Station Karsog, through Constable Vinod Kumar (PW-2), for the registration of FIR. The Investigating Officer (PW-14) requested the SHO, Karsog to intimate the FIR number to him, and pointed out that he is at the spot conducting further investigation. (l) On receipt of this ruka (Ext.PW-14/A), SHO, ASI Mohan Lal (PW-8) registered the complaint, in FIR No. 129, dated 28.7.2010 (Ext. PW-3/A), in Police Station Karsog against Karam Singh (accused) for the commission of an offence under Section 20 of the NDPS Act. (m) The Investigating Officer (PW-14) made the spot map (Ext. PW-14/B) and recorded the statements of police officials under Section 161 CrPC. (n) The Investigating Officer (PW-14) arrested the accused at 10.30 a.m., and in compliance he also informed Budhi Singh, father of the accused, about his arrest on Phone No. 9816503037. (o) The Investigating Officer (PW-14) proceeded towards the police station, without waiting for Constable Vinod Kumar (PW- 2). However, on the way at a place known as Kelodhar, Constable Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 20 of the NDPS Act, of possessing 4 kg and 850 grams of charas, to which he did not plead guilty and claimed trial. 7. During the trial, the prosecution examined the spot witnesses, namely the Investigating Officer, HC Lakshman Dass (PW-14), Constable Vinod Kumar (PW-2) and HC Tek Chand (PW-1). However, the prosecution did not examine another spot witness Const. Jitender Kumar. The State also examined the Maalkhana Incharge, MHC Gian Chand (PW-3); Constable Bhaskar Bhanu (PW-4), who had carried the contraband to SFSL, Junga; SHO/ASI Mohan Lal (PW-8), amongst others, which are formal witnesses. 8 After the completion of the prosecution evidence, in compliance with the provisions of Section 313 CrPC, the incriminating material appearing against the accused was put to him, to which he denied all the circumstances. In answer to Question No. 46, he stated that on 27.7.2010, after he had closed the hotel, a car bearing No. HP28A 0852 arrived there. Lakshman Dass, Jitender, and Jagdish were sitting in the car, and they took him away in the presence of Om Parkash. He further stated that on the next date, he informed his father on the phone. To corrob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the prosecution is that they were patrolling at a place which was about half a kilometer ahead of Kotlu on a trail. The case of the police is that they had stayed in a private hotel during the previous night, but they did not make any entry because the hotel owner was known to another police official. It is well known that the hoteliers face so many problems, on account of the behavior of the tourists, or crimes committed in hotels or thefts in the hotels. Therefore, they would undoubtedly look for an opportunity to oblige the police. It is quite possible that the hotel owner would not have charged any money from the police for their stay, thus not to be burdened with the liability of paying the taxes, he would not have made such entries. Had he made such entries, then he would have to pay taxes from his pocket. For this reason, the explanation of police officials that the hotel owner did not enter their stay in the hotel register is believable. STEP 3: Spotting the accused- The spot witnesses testified in one voice that when the accused saw the police, he turned back and this aroused suspicion, which led to his search and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their evident availability is wholly insignificant, and, rather hence absolute credence is meteable, vis- -vis, the testification(s) of the official witnesses. However, the afore contention is inapt to sway the conscience of the Court, as upon the apposite recovery memos, though the signatures of the accused, are, borne, and, are espoused by the prosecution, to be authored by the accused, however, with the accused in proceedings drawn under Section 313 CrPC, making denial of occurrence of his authentic signatures thereon, (ii) thereupon it was imperative for the prosecution, to through expert evidence, bely the afore contest made, by the accused in proceedings drawn under Section 313 CrPC, vis- -vis, his authoring the signatures borne in the relevant parcel and, upon the relevant seizure memos, and, to also cogently prove that qua the accused, making his valid signatures upon memos and his making his authentic signatures on the sealed parcel(s). Contrarily, the afore evidence remains un-adduced, thereupon the effect of existence of the signatures, if any, of the accused, on the seizure memos, is, redundant, and, therefrom the ensuing sequel is, yet, it was imperativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual scenario, points to an inference that the police intentionally did not associate any independent witness; either because nothing took place at the spot or things did not take place as was projected by the investigation team. The police captured the accused half a kilometer away from Kotlu. Constable Vinod Kumar (PW-2) says that there was a small market at Kotlu. The time was 6.15 in the morning, and in the rural areas, the shops are close to the habitats. In this case, the difficulty for the complainant is that he did not make any attempts to associate any independent witness. The only statement is that the Investigating Officer was trying to make phone calls to somebody after apprehending the accused, but due to lack of signal, he could not do so. The prosecution could not even prove the lack of signals because it has come in the evidence of SHO Amar Chand (PW-9) that there are towers of BSNL and in the statement of the Investigating Officer, he admitted that there were towers of BSNL, Air Cell, Airtel and other companies. Later on, he clarified that he had called the father of the accused, informing him of the arrest of his son. Thus he did not make phone calls to associate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly under compulsions. The law is no more res Integra that statements of police officials cannot be discarded because they are police officials. However, before that is done, their testimonies must inspire confidence. While dealing with a case under Terrorists and Disruptive Activities (Prevention) Act 1987, in Tahir v. State (Delhi), (1996) 3 SCC 338, Supreme Court observed, 6. In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, Constitutional bench of Supreme Court, observed, 14. The provisions of Sections 100 and 165 CrPC are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of independent witness at the time of search and seizure will not render the case of the prosecution unreliable. In Ajmer Singh v. State of Haryana, (2010) 3 SCC 746, Supreme Court holds, 16. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. The Supreme Court in Krishan Chand vs. State of Himachal Pradesh, (2018) 1 SCC 222, holds, 21. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is situated on the edge of Patarna Bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. (Ref: Ajmer Singh v. Haryana). 10) It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. (Ref: Ajmer Singh v. Haryana). 11) It is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, the conviction may base on their testimony. (Ref: Sumit Tomar v. Punjab). 12) On the facts of each case, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he charas from the person of the accused, as such, they were under no obligation to comply with the mandatory requirements of section 50 of the NDPS Act. Thus section 50 of the NDPS Act shall not apply and the law is no more res integra. A three member bench of the Supreme Court, in State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, holds: 18. There is another aspect of the matter, which requires consideration. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried. People waiting at a bus stand or railway platform sometimes keep their baggage on the ground and sometimes keep in their hand, shoulder or back. The change of position from ground to hand or shoulder will take a fraction of a second but on the argument advanced by learned Counsel for the accused that search of bag so carried would be search of a person, it will make a sharp difference in the applicabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection workable. 26. The Constitution Bench decision in Pooran Mal vs. Director of Inspection, 1974 (1) SCC 345, was considered in State of Punjab v. Baldev Singh, 1999 (6) SCC 172, and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the recovered illicit article can be used as proof of unlawful possession of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act, was taken and it was held that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is always upon the prosecution to prove its case, and it shifts to the accused under Sections 35 and 54 of the NDPS Act only when the prosecution had discharged its initial burden. In the absence of the Investigation kit, how could the police procure the NCB form. A bare perusal of the NCB form, Ext PW-8/A, reveals that it is a printed form with words NCB-1 TEST MEMO written on it. The police team did not have to keep it with them in routine unless they had explicitly carried it. It is not the case of the prosecution that the police brought the NCB form, weighing scale, cloth parcels, seal impression of seal-T, sealing wax (laakh), thread and needles at the spot, from nearby police post or the police station. If there is a violation of only this ground, in the absence of other contradictions, then how much weight it deserves, shall depend upon the facts of each case. The willful abstinence to associate independent witnesses in this case coupled with this lapse makes it doubtful to believe that seizure and sealing did take place at the spot or subsequently in the police station. The counsel for the accused did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seal with the seal impression over the parcel. Therefore, the link evidence to the effect that PW-1 Tek Chand had taken possession of the seal, after its use, is proved. STEP 8: Handing over the further investigation to some other investigating officer- This rule of caution is applicable only in the cases of chance recovery and in those cases of prior information where the complainants themselves conducted the initial search. So, it would have applied provided the search was conducted after the pronouncement of judgment of a three member bench of Supreme Court in Mohan Lal v. State of Punjab, 2018(4) R.C.R.(Criminal) 101. Subsequently, in Varinder Kumar v. State of H.P., AIR 2018 SC 3853, another three-member bench of Supreme Court, clarified that the law laid down in Mohan Lal, shall apply prospectively. The investigation in the present case is prior to 16 Aug 2018, the date of the decision of Mohan Lal, thus it does not apply in this case. STEP 9: Production of accused and the case property before SHO, resealing or drawing of samples by SHO, u/s 55 of NDPS Act and handing over of the case property to the police official, in cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, and this Court cannot place any reliance on it. However, the provisions of Section 57 of the NDPS Act are directory and not mandatory. Even otherwise it appears to be an unintentional omission by the Public Prosecutor, and it would have no bearing on the merits of the case. In Varinder Kumar v. State of Himachal Pradesh, 2019 (1) RCR (Criminal) 1003, a three member bench of Supreme Court observed, 7. Sections 52 and 57 of NDPS Act being directory in nature is of no avail to the appellant. STEP 11: Production of seized stuff, in Court, during trial- During the trial, the first witness who appeared in the Court was the spot witness HC Tek Chand (PW-1), and he also tendered in the evidence the case property as substantive evidence. STEP 12: Link evidence- After the seizure of the contraband, the Investigating Officer HC Lakshman Dass (PW-14) had placed the same in a cloth parcel. The first most document, made regarding the placing of charas in the cloth parcel, was the search memo (Ext. PW-1/D), in which the Investigating Officer mentions that only the fact of placing the charas al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with three impressions of seal- C in the presence of HC Tek Chand, MHC Gian Chand, and the Investigating Officer ASI Lakshman Dass. He did not say that he had stitched the parcel. The FSL report did not narrate that the laboratory, while returning the parcel, had stitched one side of the parcel. Resultantly, the prosecution failed to prove the link evidence. Thus the link in evidence is not complete that right from the stage of sealing until its reopening by the laboratory, the sealed parcel remained intact and untampered. Regarding the link evidence, the Special Judge observed in paragraphs 49 to 53 of the judgment by placing reliance on various precedents in law. There is no dispute with the law on which the Special Judge had placed reliance, but he did not discuss that how the cloth parcel was found to have been stitched, when it was produced before the trial Court, although initially there was no averment regarding its stitching nor did the police prove possessing of any needle or thread at the time of recovery. Hence, prosecution did not prove that the bag allegedly containing charas was untampered from its seizure to its production in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. 12. Learned Special Judge, pronounced the judgment of conviction on the following points: a) While repelling the contention of the learned defence counsel that by improvement of version of HC Tek Chand (PW-1) regarding chasing of the accused by the police officials, the trial Court relied upon the judgment of the Supreme Court in Tehsildar Singh vs. State of UP, AIR 1959 SC 1012 and came to the conclusion that the suggestion which was put by the defence counsel was inadmissible, and the accused could not derive any advantage due to the defective cross-examination. The Special Judge further held that even otherwise the contradiction was minor and it would not discredit the witness coupled with the fact that the defence counsel did not cross- examine the Investigating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Law is settled that graver the punishment, the stricter is the proof and higher the obligation upon the prosecution to prove the charges. Supreme Court in State of Himachal Pradesh v. Trilok Chand Anr, (2018) 2 SCC 352, holds, 13. It is imperative that the law the Court should follow for awarding conviction under the provisions of N.D.P.S. Act is stringent the punishment stricter the proof. In such cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication . In Noor Aga v. State of Punjab, 2008(16) SCC 417, Supreme Court observed, 16. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of ₹ 2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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