Himachal Pradesh High Court
State Of Himachal Pradesh vs Jeet Ram on 12 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:11123 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 363 of 2008 Reserved on: 05.11.2024 Date of Decision: 12.11.2024 State of Himachal Pradesh ...Appellant.
Versus
Jeet Ram ...Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. S.D. Vasudeva, Deputy Advocate General.
For the Respondent : Mr. Anirudh Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 03.11.2007 passed by learned Special Judge, Mandi (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
Neutral Citation No. ( 2024:HHC:11123 )
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that HC Abhimanyu (PW16), HC Karam Chand (PW3), HC Swaran Singh, Constable Baldev (PW4) and Constable Vijay Kumar (PW5) had set up a naka at Ratog Nala near Dehar on 22.08.2006. They received a secret information at about 5:20 pm that accused Jeet Ram was selling charas from his home and in case of a search, a huge quantity of charas could be recovered. The time spent in obtaining the search warrant could have resulted in the destruction of the case property. Hence, the information was reduced into writing (Ext. PG) and was handed over to Constable Vijay Kumar (PW5) with a direction to carry it to Dy. SP. HC Abhimanyu (PW-16) associated Gandhi Ram (PW2), Kirpa Ram (PW1), LC Daya Devi (PW11) and LC Pushpa Devi with the police party. All of them reached the house of the accused where the accused was present. He was told about the information received by the police. He was given the option to be searched before the Magistrate or the Gazetted Officer. The accused consented to be searched by the police. A memo (Ext. PA) was prepared. The police searched the house of the accused and recovered one white bag 3 Neutral Citation No. ( 2024:HHC:11123 ) from the bedroom of the accused. The police checked the bag and found sticks in it. The police checked the sticks and found them to be charas. The charas was weighed and its weight was found to be 2kg 200 grams. The police separated two samples of 25 grams each. These were packed in a piece of newspaper and were sealed with six impressions of seal 'A' after putting them in a cloth parcel. The remaining 2 kg 150 grams of charas was put in the bag. The bag was put in a cloth parcel and the parcel was sealed with six impressions of seal 'A'. The samples were marked as A1 and A2 and the bulk parcel was marked as 'A'. NCB-1 Form (Ext. PT) was filled in triplicate. Seal impressions were obtained on the NCB-1 Form and separate pieces of cloth (Ext. PE). The seal was handed over to witness Gandhi Ram (PW2) after the use. The case property was seized vide memo (Ext. PP). Rukka (Ext. PF) was prepared and handed over to Constable Baldev Raj with the direction to carry it to the Police Station. FIR (Ext. PM) was registered in the Police Station. HC Abhimanyu (PW16) conducted the investigation. He prepared the site plan (Ext. PQ) and recorded the statements of witnesses as per their version. He arrested the accused and prepared the memo (Ext. PC). He produced the case property before SHO Jaram Singh (PW6) who resealed the parcels with seal 'T'. He 4 Neutral Citation No. ( 2024:HHC:11123 ) obtained the seal impressions on the NCB-1 Form and filled in its relevant columns. He obtained the sample seal 'T' (Ext. PT) on a separate piece of cloth and handed over the case property to MHC Rameshwar Dass (PW7). MHC Rameshwar Dass (PW7) made an entry at Sl. No. 1106 (Ext. PK) and deposited all the articles in the Malkhana. HC Bhupinder Singh (PW8) sent the sample parcel, NCB-1 Form, copy of seizure Memo, FIR and sample seals to LC Meera Devi (PW10) and LC Daya Devi (PW11) on 25.09.2006 with the direction to carry them to CFSL, Chandigarh vide RC No. 109/2006 (Ext. PL). They deposited the case property in a safe condition at CFSL, Chandigarh and handed over the receipt to HC Rameshwar Dass (PW7) on their return. The information under Section 42(2) of the ND&PS Act was handed over to HC Sanjeev Kumar by Dy. SP Sanjeev Gandhi on 22.08.2006. HC Sanjeev Kumar made an entry in the register at Sl. No. 21. Dy.SP Sanjeev Gandhi handed over the copy of the special report to HC Sanjeev Kumar on 24.07.2006 at 11:30 AM. He made the entry of the special report at Sl. No. 22 dated 24.08.2006. The result of the analysis (Ext. PP) was issued by CFSL, Chandigarh showing that the exhibit was a sample of charas. The statements of the remaining witnesses were recorded as per their version and after the completion of 5 Neutral Citation No. ( 2024:HHC:11123 ) the investigation, the challan was prepared and presented before the learned Trial Court.
3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the ND&PS Act, to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 16 witnesses to prove its case. Kirpa Ram (PW1) and Gandhi Ram (PW2) are the independent witnesses to the recovery, who have not supported the prosecution case. HC Karam Chand (PW3) and Constable Baldev (PW4) are the official witnesses to the recovery. LHC Vijay Kumar (PW5) brought the information under Section 42(2) of the ND&PS Act from the spot and handed it over to the Dy. SP. SHO Jaram Singh (PW6) resealed the parcels. HC Rameshwar (PW7) was posted as Additional MHC and he handed over the case property to HC Bhupender Singh (PW8) who sent the case property to CFSL, Chandigarh. HC Amar Nath (PW9) signed the FIR. LC Meera Devi (PW10) and LC Daya Devi (PW11) carried the case property to CFSL, Chandigarh, HC Sanjeev Kumar (PW12) was posted as a Reader to Dy. SP Sundernagar to whom the information under Section 42(2) of the ND&PS Act and the special report were handed over. 6
Neutral Citation No. ( 2024:HHC:11123 ) Constable Narender Kumar (PW13) carried the special report to Dy. SP. N.K. Sharma (PW14) prepared the supplementary challan after the receipt of the report of analysis. Subhash Chand (PW15) conducted a partial investigation. HC Abhimanyu (PW16) effected the recovery and conducted the investigation.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was not present at home on the date of the incident. He was falsely implicated and the witnesses deposed against him falsely. He had gone to Shimla on 22.08.2006. He received a call from his home and was informed that the police had arrested his wife, Rajni. The police were calling him to the police station. He reached the village at 9:15 pm where he met Up-Pradhan Gandhi Ram (PW2), Shyam Lal and Gopal etc. He was taken to Police Post Dehar in the vehicle bearing registration No. HP 24-0475. He was informed by HC Swarn Singh that Rajni Devi was taken to Police Station Sundernagar. He was taken to Police Station Sundernagar where he met his wife Rajni Devi and aunt Banti Devi. The police obtained his signatures and the signatures of his brother Mast Ram and other villagers. The police arrested him and released his wife. No search 7 Neutral Citation No. ( 2024:HHC:11123 ) was conducted in his presence. He examined Dr. R.S. Verma Director, CFSL, Chandigarh in defence.
6. The learned Trial Court held that independent witnesses did not support the prosecution case but that was not sufficient to discard it. The police officials admitted that the house was jointly owned by two brothers and Narayanu. They were residing with their family in the house. There was no evidence of the partition amongst the co-sharers. No evidence was led to prove that the bedroom from which the recovery was effected was in possession of the accused. The defence version that Rajni Devi, wife of the accused, was taken to the Police Station, Sundernagar was admitted by Daya Devi (PW11). There was a delay in the registration of the FIR. Therefore, the accused was acquitted.
7. Being aggrieved from the judgment passed by the learned Trial Court, the State filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. Learned Trial Court failed to properly appreciate the evidence led before it. The testimonies of the official witnesses could not have been discarded. The fact that independent witnesses had turned hostile was not sufficient to discard the prosecution case. The accused has to prove that the possession was not conscious. 8
Neutral Citation No. ( 2024:HHC:11123 ) Learned Trial Court failed to appreciate this aspect of the case. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. The Division Bench of this Court decided the present appeal with other appeals on 11.12.2009 and held that the report of the analysis was not sufficient to prove that the substance recovered from the spot was charas. The matter was carried in appeal and the Hon'ble Supreme Court held in Cr. Appeal No. 1063 of 2011 that the judgment of the High Court was contrary to the judgment in Hira Singh versus Union of India 2020 SCC online SC 382. Hence, the matter was remanded to this Court for a fresh decision.
9. We have heard Mr. S.D. Vasudeva, learned Deputy Advocate General for the appellant/State and Mr. Anirudh Sharma, learned counsel for the respondent/accused.
10. Mr. S.D. Vasudeva, learned Deputy Advocate General for the appellant/State submitted that the learned Trial Court erred in acquitting the accused. The mere fact that independent witnesses did not support the prosecution case was not sufficient to discard it. The testimonies of the police officials clearly proved that the search of the house of the accused was conducted in his presence during which charas was recovered from the bedroom. Learned 9 Neutral Citation No. ( 2024:HHC:11123 ) Trial Court erred in holding that the conscious possession was not proved because the burden is upon the accused to prove that the possession was not conscious. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
11. Mr Anirudh Sharma, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court. He submitted that the learned Trial Court had rightly held that the possession of the accused was not proved and the defence version that the wife and Aunt of the accused were brought from the house to the police station was duly corroborated by the evidence on record. The police had taken the samples on the spot and not in the presence of a learned Magistrate. This is contrary to the provisions of Section 52A of the ND&PS Act. No reliance can be placed on the report of analysis in this situation. Therefore, he prayed that the present appeal be dismissed.
12. We have given considerable thought to the submissions made at the bar and have gone through the records carefully. 10
Neutral Citation No. ( 2024:HHC:11123 )
13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:
"25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost 11 Neutral Citation No. ( 2024:HHC:11123 ) question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13) "13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not 12 Neutral Citation No. ( 2024:HHC:11123 ) permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus : (SCC p. 643, para 9) '9. ... We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so.
Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.'"
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7) "7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).13
Neutral Citation No. ( 2024:HHC:11123 ) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]). 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])."
14. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
15. The chargesheet filed before the learned Trial Court specifically mentions that the police associated Gandhi Ram (PW2), Kirpa Ram (PW1), LC Daya Devi (PW11) and Pushpa Devi and thereafter proceeded towards the spot. LC Daya Devi (PW11) did not depose anything about the recovery effected from the house of the accused in her presence in her examination-in-chief. She only deposed about carrying the case property to CFSL Chandigarh. She stated in her cross-examination that she and Pushpa Devi received a phone call on 22.08.2006 and went to village Alsu. They went to the house of Jeet Ram. She did not remember whether Jeet Ram was present in the house. However, Mast Ram, Yashpal, Shyam Lal, Gopal and Karam Chand etc. were present on the spot. Rajni Devi was brought in a Jeep to Police Post 14 Neutral Citation No. ( 2024:HHC:11123 ) Dehar along with Banti Devi. Rajni and Banti Devi were brought to Police Station Sundernagar at 7 PM.
16. She was put forward as a witness of truth and was not re-examined by the learned Public Prosecutor to explain her statement that Banti Devi and Rajni Devi were brought from the spot to Police Post Dehar and thereafter to Police Station Sundernagar. Learned Trial Court had rightly held that in these circumstances the defence version that the police party had brought Rajni and Banti Devi to Police Post Dehar and thereafter to Police Station Sundernagar was duly proved by her testimony.
17. ASI Abhimanyu (PW-16) denied in his cross- examination that Rajni Devi, wife of the accused, and Banti Devi were taken in the police jeep to Police Post Dehar. He also denied that he impressed upon Rajni Devi to produce Jeet Ram otherwise she and Banti Devi would not be released. He also denied that Rajni and Banti were brought to Police Station Sundernagar in a jeep along with a Lady Constable. He denied that when the accused appeared he was arrested while Rajni and Banti were released.
18. HC Karam Singh (PW-3) denied in his cross- examination that Rajni (wife of the accused) was called at Police Post Dehar at 5 5:30 PM. He denied that police told Gandhi Ram etc. 15 Neutral Citation No. ( 2024:HHC:11123 ) that Rajni would be released only if the accused was produced before the police. He denied that the police and Rajni Devi went to Police Station Sundernagar at 7 PM.
19. Constable Baldev (PW4) denied in his cross- examination that the accused was not present at home and only his wife was present. He denied that Rajni (wife of the accused), Mast Ram (brother of the accused) and Yashpal were present at home. He denied that the police brought Rajni Devi to Police Post Dehar. He denied that police told him that Rajni Devi would only be released if the accused Jeet Ram was produced.
20. It is apparent from the cross-examination of the police officials that they denied the fact that the police had brought Rajni and Banti Devi to Police Post Dehar and thereafter to Police Station Sundernagar, whereas this fact was admitted by LC Daya Devi (PW11). This shows that the police officials are lying about an important aspect of the case and their testimonies are suspect.
21. Independent witnesses also supported the defence version. Kirpa Ram (PW1) stated in his cross-examination that Jeet Ram was brought in a Jeep to Police Post Dehar from where he went to Sundernagar. He, Om Parkash, Gandhi Ram (PW2), Mast Ram, Gopal and Karam Chand etc. had accompanied the accused. 16
Neutral Citation No. ( 2024:HHC:11123 ) Rajni Devi, wife of the accused was present in the Police Station, Sundernagar. The police arrested Jeet Ram and released Rajni Devi.
22. Gandhi Ram (PW2) also made a similar statement in his cross-examination. He stated that the police enquired Rajni Devi about her husband. The police took Rajni to Police Post Dehar. He followed the police on a scooter. Mast Ram and Karam Chand etc. also reached Police Post Dehar. Police told them that Rajni was taken in custody and she would be released if Jeet Ram was produced before the police. Accused Jeet Ram reached village Alsu at 9 PM. He was arrested by the police and Rajni was released.
23. Thus, the independent witnesses have also deposed as per the statement of LC Daya Devi (PW11). Independent witnesses have been declared hostile and were cross-examined concerning the previous statement recorded by the police. It was laid down by the Hon'ble Supreme Court in Selvamani v. State, 2024 SCC OnLine SC 837 that the testimony of a hostile witness is not effaced from the record and the version which is as per the prosecution evidence or the defence version can be accepted if corroborated by other evidence on record. It was observed:
"9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh (1991) 3 SCC 627:
1991 INSC 153, relying on the judgments of this Court in the 17 Neutral Citation No. ( 2024:HHC:11123 ) cases of Bhagwan Singh v. State of Haryana (1976) 1 SCC 389: 1975 INSC 306, Sri Rabindra Kuamr Dey v. State of Orissa (1976) 4 SCC 233: 1976 INSC 204, Syad Akbar v. State of Karnataka (1980) 1 SCC 30: 1979 INSC 126, has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
10. This Court, in the case of C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567: 2010 INSC 553, has observed thus:
"81. It is a settled legal proposition that: (Khujji case, SCC p. 635, para 6) '6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.'
82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a 18 Neutral Citation No. ( 2024:HHC:11123 ) whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with the law. Some omissions, and improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.
85. It is a settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Vide Sohrab v. State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State of Rajasthan v. Om Prakash, (2007) 12 SCC 381, Prithu v. State of H.P., (2009) 11 SCC 588, State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State v. Saravanan, (2008) 17 SCC 587"
11. In the case of Vinod Kumar v. State of Punjab(2015) 3 SCC 220: 2014 INSC 670, this Court has observed thus:
"51. It is necessary, though painful, to note that PW 7 was examined-in-chief on 30-9-1999 and was cross- examined on 25-5-2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the 19 Neutral Citation No. ( 2024:HHC:11123 ) defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross- examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined.
52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 accepted the correctness of his statement in the court on 13-9-1999. He has also accepted that he had not made any complaint to the Presiding Officer of the court in writing or verbally that the Inspector was threatening him to make a false statement in court. It has also been accepted by him that he had given the statement in the court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13-9-1999 after going through and admitting it to be correct. It has come in the re-examination that PW 7 had not stated in his statement dated 13-9-1999 in the court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.
53. Reading the evidence in its entirety, PW 7's evidence cannot be brushed aside. The delay in cross-examination has resulted in his prevarication from the examination- in-chief. But, a significant one, his examination-in-chief and the reexamination impels us to accept the testimony that he had gone into the octroi post and had witnessed 20 Neutral Citation No. ( 2024:HHC:11123 ) about the demand and acceptance of money by the accused. In his cross-examination, he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of the entire evidence in the examination-in-chief and the re-examination.
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57. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish for the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts:
57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of.
57.2. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurise the witness and to gain over him by adopting all kinds of tactics.
57.3. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it 21 Neutral Citation No. ( 2024:HHC:11123 ) would tantamount to a violation of the rule of law and eventually turn such trials into a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-
acceptable reasons.
57.4. In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.
57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite a series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to the trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot be allowed to be lonely; a destitute."
12. Relying on the aforesaid judgments, this Court has taken a similar view in the case of Rajesh Yadav v. State of Uttar Pradesh (2022) 12 SCC 200: 2022 INSC 148."
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Neutral Citation No. ( 2024:HHC:11123 )
24. In the present case, the statements of the independent witnesses have been corroborated by the statement of LC Daya Devi (PW11) regarding the taking of Rajni Devi and thereafter arresting the accused, therefore, these testimonies were rightly accepted by the learned Trial Court.
25. HC Karam Chand (PW-3) admitted in his cross- examination that the house of the accused is joint with his two brothers and uncle Narayanu. He admitted that all were married having children and they were living together in the said house. Similarly, Constable Baldev (PW4) stated in his cross-examination that he could not say whether the accused was living in a joint house with his real brothers and his family members. ASI Abhimanyu (PW16) stated in his cross-examination that the house is ancestral. He had not taken any document from Patwari and the Secretary of Gram Panchayat regarding the exclusive ownership and possession of the accused. LC Daya Devi (PW11) stated in her cross-examination that when the police party reached the spot, Mast Ram, Yashpal Singh, Shyam Lal, Gopal and Karam Chand etc were present on the spot.
23
Neutral Citation No. ( 2024:HHC:11123 )
26. The site plan (Ext. PQ) mentions the residential house of three brothers, mother and uncle at Sl. No. 5, in which room No.1 was possessed by Jeet Ram, room No.2 was possessed by Lonku Devi, rooms No.3 and 6 were possessed by Narayanu, room No.4 was possessed by Yashpal and room No.5 was possessed by Mast Ram as per the family partition. The recital in the site plan regarding the family partition cannot be believed in view of the statement of ASI Abhimanyu (PW16) in his cross-examination that he was not aware of any partition between the owners of the house.
27. Kirpa Ram (PW1) stated in his cross-examination by learned counsel for the defence that the accused has two brothers. Lonku Devi is their mother and they are living in a joint house. No formal partition of the land and house has taken place. The accused has two children. Yashpal has two children and Mast Ram has three children. Naryanu (uncle of the accused) is living with them. He has two sons, who are married. They are also living in a joint house. Gandhi Ram (PW2) also stated in the cross-examination by learned counsel for the defence that the accused had three brothers. All the brothers were married having children. Lonku was their mother and Narayanu was their uncle. Narayanu was also residing with his children in the joint house and no family partition 24 Neutral Citation No. ( 2024:HHC:11123 ) had taken place. He could not say which room was allotted to which of the brothers.
28. Therefore, the evidence on record does not show the exclusive possession of the bedroom from which the recovery was effected. The submission that the accused was supposed to prove that possession was not conscious is not acceptable because primarily it was for the prosecution to prove that the accused was in possession only thereafter the burden would shift upon him to show that his possession was not conscious. It was laid down by the Hon'ble Supreme Court in Hanif Khan v. Central Bureau of Narcotics, (2020) 16 SCC 709: 2019 SCC OnLine SC 1810 that the initial burden to prove the case is upon the prosecution and the burden shifts the accused after the prosecution has proved its case. It was observed at page 711:
"8. We have considered the submissions on behalf of the parties. The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. In Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748] it was observed as follows:
(SCC p. 450, para 58) 25 Neutral Citation No. ( 2024:HHC:11123 ) "58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused and also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied.
An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
9. Because there is a reverse burden of proof, the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally have to go to him."
29. Karam Chand (PW3) stated in his cross-examination that when the police party reached the spot, the accused was present in his courtyard. Similarly, Constable Baldev (PW4) stated in his examination-in-chief that the police party proceeded to the house of the accused and the accused was present in his courtyard. These testimonies do not show that the accused was present in the room from which the recovery was effected. The presence of the accused in the Courtyard when the house was admittedly owned by 26 Neutral Citation No. ( 2024:HHC:11123 ) so many persons will not connect him with the recovery and the learned Trial Court had taken a reasonable view while holding that the possession of the accused was not established.
30. It is an admitted case of the prosecution that the police had taken two samples of 25 grams each on the spot. This fact was mentioned in the rukka (Ext. PF), seizure memo (Ext. PB), copy of FIR (Ext. PM), special report (Ext. PO) and the charge sheet. The report of the analysis (Ext. PP) also mentions that a sample stated to be 25 grams of charas each was received in the laboratory. It was laid down by the Hon'ble Supreme Court in Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906 that Section 52A (3) requires the officer to approach the Magistrate to seek permission to draw representative samples. The samples will then be enlisted and the correctness of the list of samples so drawn would be certified by the Magistrate. It means that the entire exercise has to be carried out before the Magistrate which has to be certified by him to be correct. It is not permissible to draw samples on the spot. It was observed:-
"8. We have perused the evidence of PW-7 Hardeep Singh in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.27
Neutral Citation No. ( 2024:HHC:11123 )
9. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case (2016) 3 SCC 379, it was held thus:
"15. It is manifest from Section 52-A(2) that upon seizure of the contraband, the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer- in-charge of the police station or the officer empowered, the officer concerned is in law duty- bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates the taking of samples 28 Neutral Citation No. ( 2024:HHC:11123 ) at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
10. Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal 2016 (3) SCC
379. This creates serious doubt about the prosecution's case that the substance recovered was contraband." (emphasis supplied)
31. This position was reiterated in Yusuf v. State 2023 SCC OnLine SC 1328, wherein it was observed: -
"10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.
11. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1) --
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, 29 Neutral Citation No. ( 2024:HHC:11123 ) psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Criminal Procedure Code, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw 30 Neutral Citation No. ( 2024:HHC:11123 ) representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance with the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case (2016) 3 SCC 379, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said 31 Neutral Citation No. ( 2024:HHC:11123 ) seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court, as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with a fine of ₹ 1 lakh and in default of payment of fine to undergo further imprisonment of one year, is hereby set aside." (Emphasis supplied)
32. A similar view was taken in Bothilal v. Narcotics Control Bureau, 2023 SCC OnLine SC 498, wherein it was observed: -
"15. Admittedly, PW-2 drew two samples from each of the packets of contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion was created about the prosecution's case as this action by the PW-2, was contrary to Section 52-A of the NDPS Act.
16. In paragraphs 15 to 17 of Mohanlal's case (2016) 3 SCC 379, it was held thus:
"15. It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband, the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw 32 Neutral Citation No. ( 2024:HHC:11123 ) representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-
in-charge of the police station or the officer empowered, the officer concerned is in law duty- bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates the taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
17. Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal (2016) 3 SCC 379. This creates serious doubt about the prosecution's case that the substance recovered was contraband. (Emphasis supplied) 33 Neutral Citation No. ( 2024:HHC:11123 )
33. This position was reiterated in Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393: (2024) 2 SCC (Cri) 650: 2024 SCC OnLine SC 213 wherein it was observed at page 402:
"26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot."
34. Thus, in view of these precedents, the samples were required to be taken in the presence of the Magistrate and it is impermissible to take the samples on the spot in the absence of the Magistrate. No reliance can be placed upon the report of analysis obtained after analyzing the samples taken on the spot. In the present case, the samples were not taken in the Magistrate's presence and the prosecution case that the recovered suspected material was charas has not been established.
35. Thus, the learned Trial Court had taken a reasonable view based on the material placed before it and no interference is required with the same while deciding an appeal against acquittal.
36. Consequently, the present appeal fails and the same is dismissed.
34
Neutral Citation No. ( 2024:HHC:11123 )
37. A copy of this judgment along with the records of the learned Trial Court be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 12th November, 2024 (Nikita)