Himachal Pradesh High Court
Karam Singh vs State Of Himachal Pradesh on 7 August, 2019
Bench: Sureshwar Thakur, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 305 of 2011
Judgment reserved on : 14.6.2019
Date of Decision : August 7 , 2019
Karam Singh ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
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.
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 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 2where 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 sound in law. Accordingly, we set aside the impugned order and remand the matter to the High Court for fresh decision on merits in accordance with law.
The appeal is disposed of in the above terms."
2. The matter for consideration before this Court is a criminal appeal, filed by the convict, under sections 374 of the Code of Criminal Procedure, 1973, starting now called as CrPC. The appellant is assailing the judgment of conviction dated 10th June, 2011 passed by Special Judge, Mandi, Himachal Pradesh, in Sessions Trial No. 55 of 2010, titled as State of Himachal Pradesh vs. Karam Singh, convicting the accused for commission of an offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, starting now called as NDPS Act. The trial Court imposed a sentence of rigorous imprisonment for twelve years and to pay fine of INR 1,20,000/- (Rupees one lac and twenty thousand only) and in default of payment of fine to further undergo simple imprisonment for two years. The Court, in terms of section 428 CrPC, ordered to set off the period of detention, undergone during the trial.
::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 33. Upon the Supreme Court remanding back the matter to this Court, the Convict applied u/s 389 CrPC for suspension of sentence. Vide order .
dated, 5.3.2018, passed in Cr.M.P No. 218 of 2018, a bench of this Court suspended the sentence of imprisonment. As per the order of the trial Court, dated 16-07-2018, in the file of Cr.M.A 146 of 18, the appellant had deposited the amount of fine of Rs. 1,20,000/.Thus the appellant is out of custody from the date of his release, i.e. 26-11-2014.
BRIEF PRECLUDE:
4. The gist of the evidence apposite to justify the reasoning and to arrive at a fair conclusion is as follows:
(a) On 26.7.2010 at 5.35 a.m., Inspector Bishan Dass made an entry No. 10 in the daily police diary (Ext. PW-12/A), wherein he recorded that he has received a telephone message to send one Head Constable to Police Line Mandi. In compliance with this direction, Inspector Bishan Dass deputed HC Lakshman Dass (PW-14) to the Police Line, and after his departure, he gave information of compliance to the Superintendent of Police.
(b) Vide entry No. 29, dated 26.7.2010 (Ext. PW-11/A), in police daily diary, Police Line Mandi, it was recorded 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 ::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 4 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 man revealed his name as Karam Singh (accused). The smell of cannabis (charas) was emanating from him. On this, HC-
Lakshman Dass (PW-14) acquired reasons to believe from his knowledge that this polythene packet contained charas.
(e) Before proceeding further, the Investigating Officer HC Lakshman Dass (PW-14), asked accused Karam Singh to take his search, in the presence of other two members of the police party, namely HC Tek Chand (PW-1) and Constable Vinod Kumar (PW-2). To this effect, the Investigating Officer HC Lakshman Dass (PW-14), scribed a memo (Ext. PW-1/B), which reveals that the accused Karam Singh did search the Investigating Officer (PW-14), and he did not find anything incriminating therein from his person.
(f) After that, the Investigating Officer (PW-14) gave an option under Section 50 of the NDPS Act, to the suspect, vide consent memo (Ext.PW-1/A). As per the contents of Ext. PW- 1/A, Karam Singh consented that he is ready and willing to give his search to the police at the spot itself.
(g) At around 7.00 a.m., vide memo (Ext. PW-1/D), the Investigating Officer (PW-14) checked the polythene packet, ::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 5 which the accused was carrying in his hand. On opening the said packet, he noticed a black substance in the shape of sticks and spheres. The Investigating Officer (PW-14) smelled the .
content and based on his experience; he prima facie detected such material to be charas (cannabis).
(h) The police weighed the recovered charas, on an electronic scale, which the police party was carrying with them. The contraband weighed 4 kilograms and 850 grams. After that, the Investigating Officer (PW-14) repacked the charas in the same polythene packet, and further put it in a cloth parcel, which the police sealed with six seal impressions of seal-D.
(i) The Investigating Officer (PW-14) filled in three copies of the NCB form (Ext. PW-8/A), and embossed three seals of seal impression-D on it. He also obtained specimen seal impression of seal-D, on a piece of cloth (Ext. PW-1/C), and after use, he handed over the seal, to HC Tek Chand (PW-1).
(j) The police scribed the search memo (Ext. PW-1/D), and HC Tek Chand (PW-1) and Constable Vinod Kumar (PW-2), put their signatures on it in the capacity of witnesses.
(k) The Investigating Officer (PW-14) scribed the 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.
::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 6(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.
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(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 Vinod Kumar met the police party. At that time, the Investigating Officer (PW-14) recorded the statement of Vinod Kumar (PW-2), and then the police party proceeded towards the police station. On reaching the police station, the Investigating Officer (PW-14) handed over the case property, along with the accused, to SHO, ASI Mohan Lal (PW-8).
(p) The special report (Ext. PW-7/A) reveals that ASI Mohan Lal resealed the cloth parcel, containing the contraband, with three seals of seal impression-C. He also embossed the impression of seal-C on a separate piece of cloth (Ext.PW-1/G) and handed over the NCB forms, specimen seals and cloth parcel containing charas to MHC Gian Chand (PW-3), with a direction to deposit the same in the Maalkhana.
(q) On receipt of the case property, MHC Gian Chand (PW-3) kept the same in the police storeroom, and he also made entries to the said effect in the maalkhana register (store register), (Ext. PW-3/B).
(r) On the next day, i.e., 29.7.2010, MHC Gian Chand (PW-3) sent the case property to the State Forensic Science Laboratory, Junga, through Constable Bhaskar Bhanu (PW-4).
::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 7He also authorized Constable Bhaskar Bhanu to carry the contraband by issuing Road Certificate (Ext. PW-3/D).
(s) The SFSL Junga conducted tests from 6th to 9th August .
2010. The report mentions of conducting various scientific experiments, physical tests, chemical, and chromatographic tests, indicating the presence of cannabinol, including the presence of tetrahydrocannabinol. On doing the microscopic examination, the experts noticed cystolithic hairs. On the entire study, the laboratory formed an opinion that the substance under testing was a resinous mass which is charas, and further clarified that the quantity of the resin in the said mass was 27.62%. Thus the laboratory declared the tested substance as charas.
(t) On the receipt of the SFSL report, the SHO ASI Mohan Lal (PW-8) proceeded to lodge prosecution against the accused and accordingly filed police report under Section 173 (2) CrPC.
5. The learned Special Judge took cognizance of the offence and supplied the copies of the police report to the accused in compliance with the provisions of Section 207 CrPC.
6. On 29th October 2010, the learned Special Judge proceeded to charge the accused under 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.
::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 8The 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 corroborate his plea, he examined Om Prakash (DW-1). The defence also examined Devinder Verma (DW-2), the Nodal Officer of Airtel.
9 After completion of the evidence, the learned Special Judge found the accused guilty of the charged offence and sentenced him as aforesaid.
The convict has come up with the present appeal, challenging his conviction and sentence.
DISCUSSION AND ANALYSIS:
10 As the Courts decide cases of circumstantial evidence by culling out the circumstances, similar claims under the NDPS Act might be best analyzed, by going step by step. So this Court is tempted to take the initiative.
::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 9STEP 1: Is the case based on prior information or is based on chance recovery-
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The case of the prosecution is that the police party did not have any prior information about the accused carrying charas. On noticing the police, the said person fumbled and started returning. This unusual behavior made the Investigating officer suspicious of the said person carrying some contraband. Resultantly, the police captured him, and on his search detected the charas. Thus the present case is based on chance recovery. However, the NDPS Act does not define chance recovery.
Therefore, the procedure and safeguards in cases of chance recovery, laid down by the Hon'ble Supreme Court, in its landmark holding, State of Punjab v. Balbir Singh, (1994) 3 SCC 299, shall follow.
STEP 2: Reaching the spot-
Another aspect of the case is how the investigating team reached the spot. To this effect, the learned defence counsel, during the trial, had focused his entire efforts to challenge the travel of the police party.
Challenge as the whole was, how HC Tek Chand (PW-1) joined the team, doubts regarding staying of investigating team in a hotel, and non-
production of the register of the said hotel. In the cases based on prior information, the prosecution might be under some obligation to prove the facts of their departure up to the spot. However, the present case is of chance recovery, as the police had no prior information about the accused carrying some contraband substance. It was the behavior of the accused on which they stumbled upon the charas. Therefore the investigating team ::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 10 was required to prove their presence only at that spot, where later on they captured the accused.
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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 consequent seizure.
STEP 4: Efforts to associate independent witnesses-
The case set up by prosecution is that they were patrolling on a trail, which was half a kilometer ahead of Kotlu. The initial document, which ::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 11 mentions about the efforts of the Investigating Officer to associate independent witnesses, is the ruka (Ext. PW-14/A). Based on this ruka, an .
FIR (Ext. PW-3/A) was registered, which is its literal reproduction. The Investigating Officer stated that the spot is secluded and deserted, and due to this reason, there is no movement of any person. For this reason, the investigating officer could not associate any non-police witness. In the Special Report (Ext. PW-7/A) similar fact was reiterated. However, when the spot witnesses testified during the trial, then HC Tek Chand (PW-1) did not utter a single word to corroborate the statement made in the initial recovery documents wherein the reason for non-association of independent witnesses was the absence of movement of people because the area was secluded and deserted. In his cross-examination, HC Tek Chand explicitly stated that when the investigation was going on at the spot, then people were going from that place. He also mentioned that the Investigating Officer had not sent any person to call for any independent witness. Now, this is totally in contradiction with the case set up by the prosecution, wherein the stand is that because there was no movement of people on the spot, as such no independent witness was associated. The conclusion is that no effort was made by the Investigating Officer to call for an independent witness.
Another spot witness Constable Vinod Kumar (PW-2) also did not utter a word in his examination-in-chief about the absence of people on ::: Downloaded on - 29/09/2019 01:53:56 :::HCHP 12 the spot and that being the reason for non-association of independent witnesses. He admitted that at place Kotlu there is a small market.
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Even though at this stage, the learned Addl. Advocate General has made vehement submission before this Court, that with the relevant connectivity interse the seizure of the contraband, made through memos comprised in Ext.
PW1/D being cogently established upto the stage of the production of the case property in Court (i) and thereupon he makes a further submission that the non-joining of independent witnesses in the relevant proceedings despite their evident availability is wholly insignificant, and, rather hence absolute credence is meteable, vis-à-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-à-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, ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 13 redundant, and, therefrom the ensuing sequel is, yet, it was imperative upon the Investigating Officer to associate independent witnesses in the relevant .
proceedings, and, whereas theirs remaining unassociated, despite, their availability, rather engendering the inference qua the Investigating Officer concerned, intending to smother the truth, vis-à-vis, the genesis of the prosecution case, and, also, a further inference is sparked, vis-à-vis, his conducting a skewed and slanted investigation in the apposite FIR.
The reasoning of Sessions Judge:
Regarding the non-association of any independent witness, in paragraphs 28 the Special Judge says that because the police party had no prior information about the contraband being recovered, therefore, it was not possible to join independent witnesses. The Special Judge also concluded that simply because independent witnesses were not joined, it will not make the case of the prosecution suspicious. Trial Court relied upon judgment of Hon'ble Supreme Court, titled, Kashmira Singh vs. State of Punjab, 1999 Cri.L.J. 2876, and judgment passed by a Division Bench of this Court, titled Chet Ram vs. State, Criminal Appeal No. 151 of 2006, decided on 25.7.2008.
The findings of these judicial precedents were on different parameters.
In paragraph-33 of the impugned judgment although the Special Judge placed reliance on the decision of Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746. However, the ratio of the said judgment does not give a total go bye to the effect of non-joining of the independent witnesses. The Special Judge concluded that the prosecution case could not be doubted due to the non-availability of the witnesses because it was ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 14 not possible in the facts and circumstances of the situation, and because it was a case of chance recovery. The learned Special Judge did not notice .
the fact that the search was conducted in the morning around 7 a.m., on a trail frequented by people. The investigation had continued for four hours, and during this period, people had crossed the path. Despite numerous opportunities to associate the independent witnesses, the Investigating Officer did not associate anyone at any stage of the investigation. Another fact which was lost sight of was that no efforts were made to call witnesses from the nearby villages or the local market.
However, the appreciation of the entire evidence, in the factual 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 15 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 independent witnesses.
The case of the defence is that the Investigating Officer HC Lakshman Dass (PW-14), Jitender, and Jagdish carried the accused from his shop in a car. The defence suggested this version to the prosecution witnesses. In answer to the statement under Section 313 CrPC, the accused has explicitly stated in the following terms, "I was closing the hotel on 27.7.10. A car bearing registration No. HP-28A-0852 came.
Laxman Dass, Jitender and Jagdish were sitting in that car. I was taken in that car in the presence of Om Parkash. I telephoned my father on the next date."
Dealing with this aspect, in paragraphs- 36 & 37 of the judgment, the Special Judge did not believe the version of the defence witness Om Prakash (DW-1) on the ground that he did not report the matter to the police though he was a friend of the accused.
The case of the police is that they had reached the spot in the private car of HC Lakshman Dass (PW-14), who mentioned the number of the said vehicle as HP 33B 2218. The accused examined Om Prakash as DW-1. He stated that on 27.7.2010 at 6.30 p.m. when the accused had closed his shop, then two police officials along with one Jagdish resident of Ashala came in vehicle No. HP 28 0852. He stated that Jagdish called ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 16 the accused, and in his presence, the police took him away. Next day the father of the accused called him, and he narrated the entire incident to .
him. Reason for the father of the accused calling him is that he runs a tea stall at the same place, which is adjacent to the hotel of the accused. The Prosecutor cross-examined DW-1 Om Praksah, to which he stated that he did not inform any person that police had taken the accused. He says that the police officials who had taken the accused had two stars and one was having no star. The witness further admits that Jagdish was his classmate and he did not inquire from Jagdish that why accused was taken by the police. He also admitted that he did not report this incident to the police.
The effort of the State was that had this incident taken place, and then he would have informed the police. But once the father of the accused had spoken with him (DW-1) and he apprised him to this effect, then this witness did not need to take the trouble to tell the police. The Indian Police Stations are not revered as temples, and people visit their only 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 17 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 in any way affect the creditworthiness of the prosecution case."
In State of Bihar v. Basawan Singh, AIR 1958 SC 500, Constitutional Bench of Supreme Court holds, "10. If the witnesses are not accomplices, what then is their position? In Shiv Bahadur Singh's case it was observed, with regard to Nagindas and Pannalal, that they were partisan witnesses who were out to entrap the appellant in that case, and it was further observed: "A perusal of the evidence ......leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value." We have taken the observations quoted above from a full report of the decision, as the scrutinize report does not contain the discussion with regard to evidence. It is thus clear that the decision did not lay down any universal or inflexible rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such rule can be laid down; for ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 18 the value of the testimony of a witness depend on diverse factors, such, as the character of the witness, to what extent and in what manner he is interested, how he has .
fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinized with care and there may be cases, as in Shiv Bahadur Singh's case (Shiv Bahadur Singh v. State of Vindhya Prasad, 1954 SCR 1098) where the Court will as a matter of prudence look for independent corroboration. It is wrong, however to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available."
In Masalti v. The state of U.P., AIR 1965 SC 202, a four member bench of Supreme Court, holds, "14. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 19 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, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided there under. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 20 relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view."
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In Kalpnath Rai v. State, (1997) 8 SCC 732, Supreme Court, while dealing with a case under Terrorist and Disruptive Activities (Prevention) Act, 1987, observed, "90. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined..."
In State of Punjab v. Partap Singh, 2004 Drugs cases (Narcotics) 104, Supreme Court, in its order, observed, "2. ... We also noticed the fact that the investigating agency has not associated any independent witnesses even though they were available in the nearby vicinity. On facts of this case this by itself is a good ground to reject the appeal. The appeal fails and the same is dismissed."
In Dharampal Singh v. State of Punjab, 2010(9) SCC 608, Supreme Court observed, "16. ...It has come in the evidence of the prosecution witnesses that an attempt was made to join person from ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 21 public at the time of search but none was available. In the face of it mere absence 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 that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 22 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."
In Surjit Singh v. State of Punjab, 2011(15) SCC 187, keeping in view the fact of search and seizure in the presence of DySP, a gazetted officer, the Supreme Court holds, "4. ...It is true that no independent witness had been involved and no attempt had been made in that direction.
However, keeping in mind that the seizure had been effected at about 5:30a.m. and was the outcome of a sudden meeting between the police party and the appellant, it was difficult to get an independent witness. In any case, we find that Sub Inspector Jaspal Singh, PW 3 SI Kirpal Singh, P.W. 7, DSP Bhulla Singh and several others had also been present at the time of the incident and all have supported the seizure that had taken place. Even assuming that SI Jaspal Singh bore some animosity the possibility of false implication has been dispelled by the presence of the other police officers particularly DSP Bhulla Singh."
In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, Supreme Court observed, "3. ...According to the prosecution, on 27.06.2004, at about 5.00 p.m., a special barricading was set up by the ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 23 police party at Basantpur Bus Stand, Patiala. At that time, the police party signaled to stop a silver colour Indica Car bearing No. DL-7CC-0654 which was coming from the .
side of Rajpura. The driver of the said car (appellant herein), accompanied with one Vikas Kumar (since deceased), who was sitting next to him, instead of stopping the car tried to run away, but the police party immediately blocked the way and managed to stop the car. In view of the above discussion, we hold 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 resides, along with his family."
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 24In the light of the binding judicial precedents, the application of the .
law, when no efforts are made to associate independent witnesses, is summarized as follows:
1) The provisions of Sections 100 and 165 CrPC are consistent with the requirements of the NDPS Act and are applicable for affecting search, seizure, or arrest under the NDPS Act. (Ref:
Baldev Singh).
2) Judicial approach has to be cautious in dealing with interested or partisan evidence but such evidence should not be rejected because it is partisan. (Ref: Masalti v. U.P.).
3) There is no universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available. (Ref: Basawan v. Bihar).
4) In the absence of independent witnesses, the rule of prudence requires a more careful scrutiny of the evidence, since the police officials can be said to be interested in the result of the case projected by them. (Ref: Tahir v. Delhi).
5) Value of the testimony of a witness depends on diverse factors, such, as the character of the witness, to what extent and in what manner he was interested and how he fared in cross-
examination etc. (Ref: Basawan v. Bihar).
6) In the absence of independent witnesses, the presence of gazetted officer of the police, at the time of the search, would dispel the possibility of false implication. (Ref: Surjit Singh v.
Punjab).
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 257) Absence of independent witness during the police raid would cast an added duty on the court to adopt greater care while .
scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. (Ref: Kalpnath Rai).
8) In case of proven evidence that an attempt was made to join person from public at the time of search but none was available, then in such a factual matrix, mere absence of independent witness at the time of search and seizure will not render the case of the prosecution unreliable. (Ref: Dharampal Singh v. State of Punjab)
9) Since the charge under the NDPS Act is serious and carries onerous consequences, 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 26 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, if the explanation of the police officials that independent witnesses could not be associated does not inspire confidence, then, coupled with other contradictions, it would lead to the inference that the prosecution did not come up with clean hands. (Ref: Krishan Chand v. H.P.) In Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 (4) SCC 158, Supreme Court observed, (41). "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process...
In the present case, the Investigating Officer stated that the village Nehar was at a distance of 500 meters from village Kotlu. He admitted that people frequented this road. It came in the evidence that village Kotlu was 500 meters from the spot. It means that within a kilometer, there was ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 27 not only a village but also a small market. The fact that people used the trail, where the police conducted seizure, is proved. The evidence also .
establishes that people had crossed that trail during the time when the investigation was going on at the spot. Even if the Investigating Officer had associated independent witness at some later stage, it would have proved the presence of the police party at the spot and the seizure at the place. Despite having a phone, none of the police officers tried to call someone at the spot, to corroborate the presence of the accused, police, and the recovery of the contraband from the spot. In this case, there is a total failure of the Investigating Officer to make an effort to associate independent witnesses. The Investigating Officer was working under the notion that there is no requirement of law to associate any independent witness. It was morning time. Allegedly the time was 6.30 a.m., and the investigation had continued for about 4½ hours. So it means that by the time the investigation concluded it would have been 11 a.m. Therefore, despite the fact that the day had broken and the people were crossing the spot, he did not make any effort to associate an independent witness.
Such conduct might lead to a possible inference that no search, seizure, and investigation took place at the spot.
STEP 5: Option under Section 50 of NDPS Act-
The police claimed that they recovered chars from the bag held by the accused in his hand. Since the police did not seize the charas from the person of the accused, as such, they were under no obligation to comply ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 28 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 applicability of Section 50 of the Act. After receiving information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. The same baggage often keeps changing hands if more than one person are moving together in a group. Such transfer of baggage at the nick of time when it is about to be searched would again create practical problem. Who in such a case would be informed of the right that he is entitled in law to be ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 29 searched before a Magistrate or a Gazetted Officer? This may lead to many practical difficulties. A statute should be so interpreted as to avoid unworkable or impracticable results.
.
In Statutory Interpretation by Francis Bennion (3rd Edn.) para 313, the principle has been stated in the following manner:
"The Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is r too strong."
The learned author has referred to Sheffield City Council vs. Yorkshire Water Services Ltd., (1991) 1 WLR 58 at p. 71, where it was held as under:
"Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the Court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by Judges in developing the common law. '.....the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the Courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."
19. While interpreting a provision in the Finance Act, 1972, Lord Denning in S.J. Grange Ltd. vs. Customs and Excise Commissioners, (1979) 2 All ER 91, observed that if ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 30 the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section 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, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him."
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 31Given the settled law, the investigating officer was not under any legal obligation to extend the offer, as contemplated u/s 50 of the NDPS .
Act, to the accused.
STEP 6: Search, seizure, weighing, sampling and sealing-
The investigating officer and other police officials, present at the spot, testified in a single tone that everything, including measuring the weight of charas, and its sealing in the cloth parcel, took place at the spot.
However, none of them uttered a single word that the police team had the investigating kit with them. It is not their case that they had summoned or procured the sealing material at the spot. There is not even a whisper about the procurement or availability of this evidence. The State wants this Court to believe that since the case property was weighed and sealed, as such, the material was available. However, the issue is whether sealing, etc., took place at the spot or later on in the Police Station, and the burden to prove this fact is on the prosecution and not on the accused.
HC Lakshman Dass (PW-14), Constable Vinod Kumar (PW-2) and Constable Jitender Kumar had left the police station for detection of crime.
The Superintendent of Police, District Mandi, had directed them to do so.
In the daily diary register of police line Mandi, the concerned person recorded the fact of the departure of the police team. The prosecutor proved this fact by tendering in evidence the extracts of the register as Ext. PW-11/A. This departure report is silent about the fact that the team had carried the investigation kit along with them. PW-1 Tek Chand, who ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 32 had joined the police team, at a later point of time, also did not state that he had carried the investigation kit.
.
In the absence of the earliest evidence of the police party carrying weights and scale, it would be doubtful to believe the version of the police.
None of the police officials state that they had taken the investigation kit from the police station. It renders the prosecution story of having weighed and sealed the substance on the spot, to be extremely doubtful, if not false. The burden 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 33 that seizure and sealing did take place at the spot or subsequently in the police station.
.
The counsel for the accused did not confront the police witnesses that they were not carrying any investigation kit at the spot. This was due to the reason that the case of the defence was that nothing took place at the spot. Even otherwise, the absence of cross examination would not mean that the prosecution is discharged of its initial burden to prove its case beyond reasonable doubt.
It is well settled by the Constitution Bench of the Supreme Court in Amba Lal vs. Union of India & others, AIR 1961 SC 264 wherein the Supreme Court considered the application of the Sea Customs Act and the Land Customs Act viz-a-viz Section 106 of Indian Evidence Act by holding as under:
8. ...Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This Court in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 (AIR 1956 SC 404) considering the earlier Privy Council decisions on the interpretation of S. 106 of the Evidence Act, observed at p. 204 (of SCR) thus :
"The section cannot be used to undermine the well- established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 34
If S. 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked."... ...
.
In Bansidhar Mohanty v. State of Orissa, AIR 1955 SC 585, a four member bench of Supreme Court holds,
5. ...We do not think it is any part of the duty of the defence advocate to fill up the lacunae in the evidence adduced by the prosecution.
STEP 7: Handing over of the seal to some independent witness-
The search memo (Ext. PW-1/D) mentions that the Investigating Officer, HC- Lakshman Dass (PW-14) handed over the seal after its use to HC Tek Chand (PW-1). The Special Report (Ext. PW-7/A) also corroborates this fact. During the trial, HC Tek Chand (PW-1) states that he had received the seal. HC Tek Chand produced the seal which was a 'metal cube' having impressions B, C, O, D, V, and F embossed on its six sides. The defence did not rebut the comparison of this 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 35 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 charge of police malkhana/store, for keeping it in a safe and getting substance tested from laboratory-
On 28.7.2010 ASI Mohan Lal (PW-8) was officiating as the SHO of Police Station Karsog. He testified that HC Lakshman Dass (PW-14) had handed over to him the case property and the accused. He resealed the case property with own seal and after resealing, handed over it to MHC Gian Chand (PW-3) for depositing the same in the Maalkhana. HC Gian Chand, MHC Police Station Karsog, corroborates this fact, in his testimony, by admitting the receipt of the case property, which had been resealed by SHO Mohan Lal (PW-8). He further testified that he had kept the case property in the police store (maalkhana), and entered the fact of depositing, in the Maalkhana register at Sr. No. 403 (Ext. PW-3/B). Thus, all these facts stand proved, and such evidence is unrebutted.
STEP 10: Special Report u/s 57 of NDPS Act-
The Investigating Officer, HC Lakshman Dass (PW-14) testified that he had handed over the case property to the SHO, ASI Mohan Lal (PW-8), ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 36 who was the officiating SHO of the police station on 28.7.2010. He testified that on 2.9.2010 after the completion of the investigation, he had .
handed over the case file to the regular SHO, Amar Chand Sharma (PW-
9) of the concerned police station, who corroborated this fact.
HC Ram Lal (PW-7) who was posted in the office of Sub Divisional Police Officer Sundernagar as his reader, stated that Sh. Raj Kumar Chandel, who was the SDPO at the relevant time, had handed him over the Special Report (Ext. PW-7/A) on 29.7.2008 at 12.40 p.m. He further testified that he had entered the receipt of such Special Report at Sr. No. 115 of the concerned register (Ext. PW-7/B). The prosecution did not examine Sh. Raj Kumar Chandel, SDPO; however, they tendered his statement by way of an affidavit, Ext.PW-6/A. From the bare perusal of the Special Report (Ext. PW-7/A), it appears that the same bear the signatures of ASI Mohan Lal. However, when ASI Mohan Lal entered into the witness box as PW-8, the prosecution did not prove this report through him. He is silent in his examination-in-chief as well as cross-examination about the special report. Therefore, the prosecution has failed to prove the Special Report (Ext. PW-7/A) as per Indian Evidence Act, 1872, hence, this fact is not tested, 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.
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 37In 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 along with the polythene packet in a cloth parcel. Similar averments were made in the FIR (Ext.
PW-3/A), Special Report (Ext.PW-7/A), and ruka (Ext.PW-14/A). HC Tek Chand (PW-1) stated on oath that the Investigating Officer HC Laxman Dass (PW-14) placed back the charas in the same polythene bag and sealed in a parcel of cloth and seals were affixed thereupon.
The next spot witness, the prosecution examined, was Constable Vinod Kumar (PW-2) who corroborated the version of HC Tek Chand (PW-
1). The parcel was shown to the witness, and it was noticed that the said parcel was stitched from one side.
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 38Now on comparison of this fact of stitching of the package, with the initial seizure documents, it is nowhere mentioned in the search memo .
(Ext. PW-1/D), FIR (Ext. PW-3/A), special report (Ext. PW-7/A) and ruka (Ext.PW-14/A) that the police had stitched the parcel at the spot. The initial version is definite that the charas, along with polythene packet, was placed back in the cloth parcel. Now, this is a material contradiction in comparison to the factual situation recorded in the above documents.
When this witness was confronted with the stitching portion, his simple statement is that it was stitched at the spot. However, there is no corroboration to the newly improved fact of stitching at the spot. Neither earlier documents state so nor do the PW-1 HC Tek Chand, who had testified before the recording of statement of PW-2.
The Investigating Officer, HC Laxman Dass stepped into the witness box as PW-14. In his examination-in-chief, he stated that "This polythene bag was wrapped in a piece of cloth. The parcel was sealed with six impressions of seal D". Now the Investigating Officer is silent about the stitching part. Why this material contradiction has come is apparent from the fact that stitching would need a needle and thread, and it would also lead to the conclusion that nothing was done at the spot. At this stage, a doubt would arise in the mind of the reader that the SHO of the Police Station may have stitched this parcel during the process of resealing. Now ASI Mohan Lal (PW-8) was officiating as the SHO at that particular point of time. He stated on oath that the Investigating Officer HC Laxman Dass ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 39 had brought before him one parcel sealed with six impressions of seal-D. He further says that he resealed the parcel 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.
In Noor Aga v. State of Punjab another,(2008) 16 SCC 417, Supreme Court observed as under:
91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 40 cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, .
there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.
11. The presumption under section 35 and 54 of NDPS Act would come into play only when the prosecution discharges the initial burden upon him, by proving its case beyond reasonable doubts. In the present case, the prosecution could not cross this hurdle.
In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, a three member bench of Supreme Court, 2000(2) SCC 513, holds, "21. No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-
rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-
section (2) as "beyond a reasonable doubt". If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be miscarriage of criminal justice to convict him of the offence ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 41 keeping such strong doubt dispelled. Even so, it is for the accused to dispel any doubt in that regard.
.
22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence.
Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, 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-
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 42examine the Investigating Officer on this aspect. This reason given by the Special Judge in paragraphs 14 to 20 of the impugned judgment appears to be by law.
.
b) The second point was relating to the contention of the defence counsel that there was no notification regarding the constitution of the Special Investigating Unit; therefore, police had no jurisdiction to visit the spot and conduct the investigation. The Special Judge has returned his findings on this point in paragraph 22 of his judgment. He relied upon the decision of the Supreme Court reported in State of M.P. vs. R.C. Sharma, (2005) 12 SCC 628. In paragraph 23, the Special Judge concluded that even if there were some illegality in the investigation, it would not affect the trial. This Court is of the concerned opinion that the findings as to whether there was any illegality in the investigation are not required to be answered in the present case because it would not cast any specific bearing in the outcome of the case.
c) In paragraphs- 39 to 44 of the judgment the Special Judge discussed non-application of Section 42 of the NDPS Act although even in the preceding paragraphs the Special Judge had concluded that it was a case of chance recovery. Hence he has rightly observed that Section 42 would not come into operation.
13. After careful appreciation of the entire evidence, application of law and judicial precedents, the findings returned by the trial Court, convicting the accused, are not based on the correct and complete appreciation of testimonies of prosecution witnesses. It does not lead to an irresistible conclusion of the guilt of the accused, beyond reasonable doubts.
::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 4314. One question which will always come to the mind of the Court is that such a considerable quantity would not be planted unless there is .
animosity against the accused. In answer to the statement under Section 313 CrPC, accused did not level any such allegations against any of the police officials. Therefore, it cannot be said that the police had falsely planted this kind of charas on the accused. But then it does not mean that the prosecution need not prove its case simply because such type of assumption would always be there in the mind of the Court. The quantity involved in this case is commercial quantity, which will provide a minimum ten years of imprisonment, without any remission. 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 ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 44 provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs. 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, i.e., 'proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of 'wider civilization'. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused."
15. Therefore, appreciation of the evidence and application of law cited hereinabove, take this Court to only one conclusion that the possibility of the investigating team not revealing the true and correct facts cannot be ruled out. After careful scrutiny, the evidence of the police officials, does not inspires confidence, being neither trustworthy nor reliable, and it ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP 45 cannot from basis of conviction. The prosecution has miserably failed to prove its case beyond reasonable doubts.
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16. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 10th June 2011 passed by Special Judge, Mandi, Himachal Pradesh, in Sessions Trial No. 55 of 2010, titled as State of Himachal Pradesh vs. Karam Singh, is set aside and the accused is acquitted of the charged offence. The fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged.
Appeal stands disposed of, so also pending application(s), if any.
(Sureshwar Thakur), Judge.
(Anoop Chitkara), Judge.
August 7 , 2019 (PK) ::: Downloaded on - 29/09/2019 01:53:57 :::HCHP