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TMI Blog2020 (10) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.01.2002, at about 1.00 P.M., a police team led by ASI Purushottam Dutt (PW8) and also comprising Constable Sunder Singh (PW1), Constable Bhup Singh (PW2) and Constable Bhopal Singh (PW7) were checking traffic at Shamshar when a motorcycle without a number plate was spotted. Gulshan Rana (appellant in Criminal Appeal No. 1126 of 2019) was driving the vehicle and Rajesh Dhiman (appellant in Criminal Appeal No. 1032 of 2013) was seated on the pillion with a backpack slung over his shoulders. They were signalled to stop and documents of the motorcycle were demanded. Meanwhile, another vehicle was halted and its occupants Karam Chand (PW3) and Shiv Ram were included in the search. An attempt was made to associate local residents to witness the subsequent proceedings, but none agreed. Subsequently, the appellants were given option to be searched in the presence of a Magistrate or Gazetted Officer but they consented to be searched by the police on the spot itself. The police then discovered polythene bags containing charas from the backpack carried by Rajesh Dhiman. The polythene bags were weighed and found to be 3kg 100gms. After separating some samples, the charas was duly sealed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness. 6. However, the High Court in appeal, setaside the acquittal and convicted the appellants for possession of charas under Section 20 of the NDPS Act. The High Court observed that although association of independent witnesses in NDPS cases is always desirable but their nonexamination would not per se be fatal to the prosecution case, especially when due efforts are made by the police to secure their presence. Adverting to the facts of the case in hand, the High Court found no reason to draw an adverse inference against nonexamination of independent witnesses as PW8 had deposed that an unsuccessful attempt was made to join persons from the locality, and Shiv Ram had been won over. The High Court reappreciated the entire evidence on record and firmly held that the chain of events commencing from seizure of contraband to its chemical analysis, was complete in all respects. In the absence of any allegation of bias, it was held to be wrong to discard the otherwise impeccable statements of the official witnesses. The High Court dissected a catena of judgments and opined that the police officers' testimonies ought to be subjected to a vigorous standard of scrutiny and corroboration; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ias was caused by complainant also being the investigating officer? 9. The primary issue debated by both sides concerns the effect of the complainant in the present case, PW8, also being the investigating officer. The appellants sought to contend that a long line of cases, ending with Mohan Lal v. State of Punjab (2018) 17 SCC 627, has laid down the legal proposition that investigation by the complainant himself would be contrary to the scheme of the NDPS Act, thus jeopardizing the entire trial. 10. Suffice to say that the law on this point is no longer res integra and the controversy, if any, has been set at rest by the Constitutional Bench of this Court in Mukesh Singh (supra). The earlier position of law which allowed the solitary ground of the complainant also being the investigating officer, to become a spring board for an accused to be catapulted to acquittal, has been reversed. Instead, it is now necessary to demonstrate that there has either been actual bias or there is real likelihood of bias, with no sweeping presumption being permissible. It would be worthwhile to extract the following conclusions drawn in the aforecited judgment: "102. From the above discussion and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for concluding bias. The appellants have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. Further, such a huge quantity of charas could not have been planted against the appellants by the police on its own. 12. The appellants have creatively sought to argue that failure of the police to investigate the alternate theory proffered at the stage of Section 313 CrPC, has caused serious prejudice to them and that reason alone is sufficient not to hold them guilty 'beyond reasonable doubt'. They have explicitly relied upon Paras 18 and 19 of Mukesh Singh (supra), which we deem appropriate to extract as follows: " 18. If the defence of the accused is not properly investigated to rule out all other possibilities, it cannot ever be said that the prosecution has established the guilt "beyond reasonable doubt". A tainted investigation by a complaint who is a "witness" himself to a substantial ingredient of an offence, would in fact give rise to a "doubt" and it is impossible that the case can be established on the parameter of "beyond reasonable doubt"; 19. A person accused of criminal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pradesh, (1979) 1 SCC 355 explained that "if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him." The appellants in the present appeal have miserably failed to make out a case where two reasonable conclusions can be reached on the basis of evidence on record. 16. Secondly, it is useful to point out that in their respective statements under Section 313, CrPC the appellants have claimed that when they were coming after visiting a temple, "a person obtained lift from us on vehicle". When they reached Ani Bazar, the police officials demanded the documents of the vehicle and for that purpose they were taken to police station "along with the vehicle and in the meanwhile third person fled away from the place of the incident." This claim that the seized contraband was being carried by an unknown stranger, who had mysteriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uittal in appeal? 19. There is no gainsaid that High Courts are well within their power to reverse an acquittal and award an appropriate sentence; though they cautiously exercise such powers in practice. Illustratively, a few permissible reasons which would necessitate such interference by the High Court include patent errors of law, grave miscarriage of justice, or perverse findings of fact. 20. Here, the trial Court appreciated facts in a mechanical manner and dismissed the prosecution case based on a misinterpretation of law, particularly qua satisfying the burden of proof. Hence, there were more than enough reasons for the High Court to interfere with the acquittal and arrive at a different finding. 21. The appellants' claim that the High Court erred in not considering noncompliance with Section 50 of the NDPS Act at the stage of appeal, is also premised upon a mistaken understanding of the law. As held in State of Himachal Pradesh v. Pawan Kumar (2005) 4 SCC 350, the safeguards for search of a person would not extend to his bag or other article being carried by them. Given how the narcotics have been discovered from a backpack, as per both the prosecution and defence versi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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