Joginder Singh vs State Of Haryana on 6 November, 2023

[Cites 32, Cited by 0]

Punjab-Haryana High Court

Joginder Singh vs State Of Haryana on 6 November, 2023

Bench: Anoop Chitkara

                                                                 Neutral Citation No:=2023:PHHC:141718




CRA-S-1472-SB-2002

                 IN THE HIGH COURT OF PUNJAB & HARYANA
                              AT CHANDIGARH

318                                                   CRA-S-1472-SB-2002
                                                      Reserved on: 16.08.2023.
                                                      Pronounced on: 06.11.2023.


Joginder Singh                                               ......Appellant

                               Versus

State of Haryana                                               ......Respondent


CORAM:           HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:         Ms. Tanu Priya Singh, Advocate and
                 Mr. Keshav Pratap Singh, Advocate,
                 for the appellant.

                 Mr. Manish Bansal, Sr. DAG, Haryana.

                               ***

ANOOP CHITKARA J.

FIR No.                      Dated           Police Sta1on          Sec1ons
320                          20.05.1997      Rania, District Sirsa 15 and 16 of NDPS Act

 Case No.                    SC No.181 of 1998
                             Sessions Trial No.92 of 2000
                             Date of Decision: 07.09.2002
 Names of accused/           1. Joginder Singh,
 convicts/                   2. Kanwar Singh,
 appellants                  3. Sukhdev Singh and
                             4. Balbir Ram
 Convic1on under             15 of the NDPS Act
 sec1on
 Sentence imposed            R.I. for 10 years and ﬁne of Rs. 1,00,000/- each

1. All four accused, convicted and sentenced as men9oned above, had come up before this court by ﬁling two separate appeals in 2002. Since the appeals were not heard within a reasonable 9me, their sentences were suspended. During the pendency of the appeal, appellants Balbir Ram and Kanwar Singh expired, and appeal CRA-S-1705- SB-2004 ﬁled by them stand abated vide order dated 09.08.2023. Appellant Sukhdev Singh also expired during the pendency of the present appeal, and proceedings qua him stand abated vide order dated 14.07.2023. Thus, the present judgment conﬁnes the surviving appellant, namely Joginder Singh.

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2. On May 20, 1997, the police party headed by SHO PW-6 Raj Kumar along with other police oﬃcials, namely head Constable Than Singh, PW-7 Constable Mangal Singh, Constable Harbans Lal, Constable Randhir Singh, aAer patrolling in their jurisdic9on, were present near bus stand of village Bharolianwali in an oﬃcial vehicle driven by Constable Harminder Singh. At around 10 to 11:00 AM, a Jeep bearing registra9on number HR-24B-4057 came from the side of the village Jiwan Nagar. On no9cing it, they signaled it to stop because the SHO PW-6 Raj Kumar wanted to search the Jeep. The SHO directed Jeep's driver to cooperate and saw some gunny bags lying in its boot trunk space. The inves9gator suspected that the bags might contain some narco9c substance. On this, he detained the occupants of the Jeep and proceeded further. On inquiry, the driver of the Jeep disclosed his name as Kanwar Singh; the person siDng in the front along with the driver disclosed his name as Balveer Ram; the persons who were siDng on the gunny bags in the luggage space disclosed their names as Joginder Singh and Sukhdev Singh. Since the SHO wanted to search, he gave them an op9on under sec9on 50 of the Narco9cs Drugs and Psychotropic Substances Act, 1985, [AAer now called the NDPS Act] and vide Exhibit PE, the inves9gator informed them about their right to be searched in the presence of a GazeIed oﬃcer or a Magistrate. On this, the accused desired to be searched in the presence of some GazeIed oﬃcer. AAer this, the SHO sent informa9on and called the DySP, Ellanabad, and aAer some 9me, the DySP InderduI, PW-1, reached the spot. The bags were opened in the presence of DySP, and they contained poppy husk. AAer that, the SHO sent a police constable to bring weighing scales and weights, and on his arrival, the police oﬃcials weighed all six bags, each having 38.5 kilograms of poppy husk. The SHO separated two samples of 250 grams each from every bag and kept those in separate packets. The SHO, as well as DySP, put their seals on the bulk as well as samples. AAer that, the police registered the FIR, arrested all the accused, and deposited the case property with MHC, who sent six parcels for tes9ng to the FSL, which found the contraband as a sample of poppy straw. The Oﬃcer-in- charge of the police sta9on launched prosecu9on by ﬁling a report under 173 CrPC.

3. Vide order dated April 29, 1998, the Addi9onal Sessions Judge, Sirsa, framed charges against all the issues under sec9on 15 of the NDPS Act. The accused pleaded 'Not Guilty' and claimed to be tried. AAer examina9on of the witnesses and recording of the statements of the accused under 313 CrPC, the Trial Court allowed the prosecu9on and held all the accused guilty, and convicted and sentenced them as cap9oned above. Feeling aggrieved, the accused had ﬁled the present appeal in the year 2022, purportedly under sec9on 374 of the Code of Criminal Procedure, 1973 [AAer now referred as CrPC], read with Sec9on 36-B of the NDPS Act.

4. In Noor Aga v. State of Punjab, 2008(16) SCC 417, Supreme Court observed, [16]. The provisions of the Act and the punishment prescribed 2 of 20 2 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 therein being indisputably stringent ﬂowing from elements such as a heightened standard for bail, absence of any provision for remissions, speciﬁc provisions for grant of minimum sentence, enabling provisions gran9ng power to the Court to impose ﬁne of more than maximum punishment of Rs. 2,00,000/- as also the presump9on of guilt emerging from possession of Narco9c Drugs and Psychotropic substances, the extent of burden to prove the founda9onal facts on the prosecu9on, i.e., 'proof beyond all reasonable doubt' would be more onerous. A heightened scru9ny 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 interna9onal conven9ons, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declara9on of Human Rights by insis9ng upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democra9c values. It is necessary for giving eﬀect to the concept of 'wider civiliza9on'. The courts must always remind itself that it is a well seIled 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.

5. In State of Himachal Pradesh v. Trilok Chand, (2018) 2 SCC 352, Supreme Court holds, [13]. ...It is impera9ve that the law the Court should follow for awarding convic9on under the provisions of N.D.P.S. Act is "stringent the punishment stricter the proof." In such cases, the prosecu9on evidence has to be examined very zealously so as to exclude every chance of false implica9on....

6. Thus, not only does the evidence have to be appreciated by keeping the mandates men9oned above, but even the law has to be applied in the light of these binding precedents.

7. During trial PW-1, Inder DuI, Dy. S.P. tes9ﬁed that he had received a message from S.I. Raj Kumar and had reached the spot where Raj Kumar told him that they were suspec9ng some narco9cs in the said jeep, and it needed to be searched. AAerwards, he directed the inves9ga9ng oﬃcer to search the jeep from which six bags of poppy husk were recovered. In the cross-examina9on, he was confronted about his signature on the spot, to which he tes9ﬁed that he had not signed any document on the spot. He further tes9ﬁed that before he reached the spot, the inves9gator had already arranged weights and scales. He clariﬁed that he did not direct the inves9gator to join any independent witness. He admiIed the sugges9on that people were available at the place of recovery but explained that they were not willing to join the inves9ga9on when they were asked to do so. He further clariﬁed that the paperwork was done on the spot. The inves9gator tes9ﬁed as PW-6 and reiterated the prosecu9on case. In cross-examina9on, he admiIed that when the Deputy Superintendent of Police had reached the spot, his Reader, PSO, 3 of 20 3 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 and Driver were available with him. He further stated that he had tried to join some public witnesses, but they were unwilling to witness the search and seizure. However, neither the names of such persons were wriIen down nor took any legal ac9on against them, who had refused to become witnesses. The prosecu9on also examined another witness, police oﬃcial HC Dhan Singh, who corroborated the statements made by PW-1 and PW-6 without any material contradic9ons. In cross-examina9on, he stated that DySP had not put his signatures on any of the papers and stated that aAer aﬃxing the seals on the case property, the DySP had kept the seals with him.

8. In the statement under Sec9on 313 Cr. P.C., all the accused denied the prosecu9on case, and all had a common stand that they were implicated because of party fric9on. It was stated that Sukhdev Singh and Joginder Singh were landowners, whereas Kanwar Singh and Balbir Singh were their workers. The surviving appellant- Joginder Singh, in his statement under Sec9on 313 CrPC, also admiIed that he and Sukhdev Singh were landowners, while two other accused were their workers, and they have also been falsely implicated because of the party fric9on. The accused did not lead in defence. Thus, the bald statement that they were implicated in party fric9on and fric9on was not proved by any of the accused. It is crucial to men9on that one counsel represented all four accused, and neither of the accused took up the plea of clash of interest.

9. The prosecu9on's case was that in the morning hours of 20.05.1997, a police party headed by SI/SHO Raj Kumar (PW-6) was patrolling near the Bus Stand of village Bharolianwali. Then, they intercepted a vehicle driven by Kanwar Singh. On no9cing gunny bags in the Jeep's trunk, Raj Kumar, Inves9gator (PW-6), suspected the bags to have some narco9c substances. The Inves9gator did not state that he had received any prior informa9on about the Jeep transpor9ng the contraband. There is no evidence that the Inves9gator concealed the prior informa9on to show the seizure as a case of chance recovery to cover up the non-compliance with sec9on 42 of the NDPS Act. When the Inves9gator stumbled upon the contraband, which primafacie falls in the list of prohibited substances under the NDPS Act, the procedures enshrined under the NDPS Act, as well as CrPC, have to be followed. The present case is based on chance recovery; however, the NDPS Act does not deﬁne chance recovery; therefore, the reasoning of the Supreme Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 shall follow.

10. On no9cing the bags in the Jeep's trunk, Inves9gator PW-6 got suspicious that the bags had contraband prohibited under the NDPS Act and wanted to verify these. He served the no9ce under Sec9on 50 of the NDPS Act to the accused. On receipt of the no9ce (Ext. PE) under sec9on 50 of the NDPS Act, the accused expressed their desire to be searched in the presence of a GazeIed oﬃcer. On this, a GazeIed Oﬃcer, i.e., Deputy Superintendent of Police InderduI (PW-1), was asked to reach on the spot. In the 4 of 20 4 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 presence of the Deputy Superintendent of Police, The Inves9gator, SHO Raj Kumar (PW-

6), searched bags and detected poppy husks in all the bags. The police had recovered the poppy husk from the bags lying in the Jeep and not from the person of the accused; as such, the Inves9gator was under no obliga9on to follow the mandatory requirements of sec9on 50 of the NDPS Act. 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 maIer, which requires considera9on. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its applica9on. The same principle should apply in the case of search or seizure, which come in the domain of detec9on of crime. The posi9on of such bags or ar9cles is not sta9c and the person carrying them oAen changes the manner in which they are carried. People wai9ng at a bus stand or railway plaTorm some9mes keep their baggage on the ground and some9mes keep in their hand, shoulder or back. The change of posi9on from ground to hand or shoulder will take a frac9on 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 Sec9on 50 of the Act. AAer receiving informa9on, an oﬃcer empowered under Sec9on 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 liAs the bag or keeps it on his shoulder or some other place on his body, Sec9on 50 may get aIracted. The same baggage oAen keeps changing hands if more than one person are moving together in a group. Such transfer of baggage at the nick of 9me when it is about to be searched would again create prac9cal problem. Who in such a case would be informed of the right that he is en9tled in law to be searched before a Magistrate or a GazeIed Oﬃcer? This may lead to many prac9cal diﬃcul9es. A statute should be so interpreted as to avoid unworkable or imprac9cable results....

[26]. The Cons9tu9on Bench decision in Pooran Mal vs. Director of Inspec9on, 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 Sec9on 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 ar9cle"

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 dis9nc9on between recovery of illicit drugs, etc. seized during a search conducted aAer following the provisions of Sec9on 50 of the Act and a seizure made during a search conducted in breach of the provisions of Sec9on 50. Having regard to the scheme and the language used, a very strict view of Sec9on 50 of the Act, was taken and it was

5 of 20 5 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 held that failure to inform the person concerned of his right as emana9ng from sub-sec9on (1) of Sec9on 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 jus9ﬁca9on for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, ar9cle or container or some other baggage being carried by him.

11. On receipt of the no9ce (Ext. PE) under sec9on 50 of the NDPS Act, the accused expressed their desire to be searched in the presence of a GazeIed oﬃcer. On this, a GazeIed Oﬃcer, i.e., Deputy Superintendent of Police, InderduI (PW-1), visited the spot. In the presence of the Deputy Superintendent of Police, Raj Kumar, Inves9gator (PW-6) searched bags and detected poppy husk. He also prepared a rough site plan (Ex. PG) depic9ng the spot of seizure at T-point. In examina9on-in-chief, PW-6 SHO Raj Kumar tes9ﬁed in the same terms, and it was corroborated by a GazeIed Oﬃcer, i.e., Deputy Superintendent of Police Inder DuI (PW-1) and also by Head Constable Dhan Singh (PW-7). An analysis of this part of the evidence proves that the search was conducted at the spot, and the recovery was made from the Jeep, which was stopped at the spot at the 9me and place pointed out by the prosecu9on. The pe99oner's presence in the boot of the Jeep is thus established.

12. AAer sending a message to send a GazeIed oﬃcer to the spot, the SHO also sent a police constable to bring weighing scales and weights. The DySP InderduI, PW-1, said in his cross-examina9on that the weights and the scale were already at the spot when he reached there. He clariﬁed that weights were 20, 10, 5, 2, and 1 kg each. SHO PW-6 also stated in his cross-examina9on that he had sent Constable Randhir Singh to bring scale and weights, and those were 50 grams, 200 grams, 1 kg, 2 kg, 5 kg, 10 kg, and 20 kg. PW-7 Dhan Singh also told in his cross-examina9on in line with SHO PW-6 and further stated that Constable Randhir Singh had brought scale and weights from Village Bharolianwali in a private jeep. However, the prosecu9on neither examined Constable Randhir Kumar nor the driver of the private jeep or the shopkeeper from whom they had brought the weights and the scale.

13. According to the prosecu9on's version, the seal ﬁxed on the samples and gunny bags was handed over to HC Dhan Singh (PW-7). However, Dhan Singh disclosed during his cross-examina9on that he had returned the seal to the Inves9gator about one week before the samples were analyzed. Since the seals aﬃxed on the case property were not only of SHO but also of DySP, as such it would not have been possible even for SHO to tamper with the case property for which he also needed the seal of DySP and his involvement, and thus, this aspect does not weaken the prosecu9on's case.

14. There were six bags, each having 38.5 Kg of alleged poppy husk, and the Inves9gator had drawn two samples from each bag weighing 250 grams. The remaining 6 of 20 6 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 poppy straw, i.e., 38 Kg each, was sealed in the bags. Ex. P-1 to P-6. The Inves9ga9ng Oﬃcer, PW-6 Raj Kumar, stated on oath that he had handed over the case property to MHC (Moharar Head Constable) on the day of its seizure. MHC Ajit Singh tendered his aﬃdavit in the evidence and stated that the case property had remained in his custody from 20.05.1997 onwards, and even the samples were safe with him un9l he handed over the same to Harbans Lal, per the aﬃdavit of Harbans Lal, Ex.PC, he had received six samples on 05.06.1997 from MHC Ajit Singh. The defence neither disputed this evidence through aﬃdavits aIested by Judicial Magistrate Ist Class and ﬁled under Sec9ons 294 to 297 CrPC nor called these witnesses for cross-examina9on. As per the FSL report, Ex.PD, Constable Harbans Lal, No.506, handed over the samples to it, further corrobora9ng the evidence.

15. A perusal of the FSL Report (Ex. PD) reveals that aAer conduc9ng the qualita9ve test on all the representa9ve samples, which were marked by the Laboratory as Ex.P1 to Ex.P6, the Laboratory found Meconic Acid; Thebaine; Morphine, Papaverine, Codeine; Narco9ne as present and the Laboratory opined that the samples were of poppy straw (choora-post) of Papaver Somniferum L. The poppy straw allegedly recovered from the convicts is an oﬀence in the following terms:

 Substance Name                                      Poppy straw
 Quan9ty detained                                      231 Kg
 Quan9ty type                                        Commercial
 Drug Quan ty in % to upper
                                                       462.00%
 limit of Intermediate

Speciﬁed as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No9ﬁca9on No S.O.1055(E) dated 10/19/2001 Sr. No. 110 Common Name (Name of Narco9c Drug and Psychotropic Substance (Inter- Poppy straw na9onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name ****** Small Quan9ty 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quan9ty 50000 Gram (i.e., equivalent to 50 Kg) Declared as punishable under NDPS Act and as per schedule deﬁned in S.2(xi) & 2(xxiii) NDPS Act, 1985 No9ﬁca9on No S.15 & S.2(xviii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(xviii) 7 of 20 7 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 Common Name (Name of Narco9c Drug and Psychotropic Substance (Inter- ****** na9onal non-proprietary name (INN) Other non-proprietary name ****** S.2(xviii) "poppy straw" means all parts (except the seeds) of the opium poppy aAer harves9ng whether in their original form or cut, crushed or powdered and whether or not juice has been ex-

tracted therefrom; S. 2(viiib)] "illicit traﬃc", in re- la9on to narco9c drugs and psychotropic sub-

stances, means--

(i) cul9va9ng any coca plant or gathering any por-

9on of coca plant;

(ii) cul9va9ng the opium poppy or any cannabis plant;

(iii) engaging in the produc9on, manufacture, pos- session, sale, purchase, transporta9on, warehous- ing, concealment, use or consump9on, import in-

ter-State, export inter-State, import into India, ex- Chemical Name port from India or transhipment, of narco9c drugs or psychotropic substances; S.2 (xvii) "opium poppy" means--

(a) the plant of the species Papaver somniferum L;

and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by no9ﬁca9on in the Oﬃcial GazeIe, declare to be opium poppy for the purposes of this Act;

S2. (xviii) "poppy straw" means all parts (except the seeds) of the opium poppy aAer harves9ng whether in their original form or cut, crushed or powdered and whether or not juice has been ex-

tracted therefrom;

16. The SHO had sent six samples, each from the twelve drawn for tes9ng in the Laboratory. A perusal of the en9re evidence, speciﬁcally statements of PW-1, PW-6, and PW-7, did not point out that the police party assigned speciﬁc numbers to all the samples to dis9nguish which samples were drawn from which bag. Thus, in all, there were twelve samples, which represented six bags. Since there were no speciﬁc marks indica9ng which samples belonged to which bags, it cannot be concluded that the six samples sent to the laboratory represented all six bags. As such, it has to be presumed that the samples represented only three of the bags. But even this concession will not give any beneﬁt to the convicts for the reason that the weight of the poppy husk contained in each bag was 38.5 Kg, as such, the weight of three bags would come to 115.5 Kg. Any quan9ty greater than 50 Kg is commercial, so the minimum sentence that can be imposed under Sec9on 15 of the NDPS Act is ten years, which was awarded to 8 of 20 8 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 the appellants.

17. Since the Inves9gator was SHO, sec9on 55 of the NDPS Act did not apply. Thus, there is no ques9on of any prejudice on its non-compliance.

18. Since DySP was present on the spot and was the oﬃcer immediately superior to the Inves9gator, who was SHO of the concerned police Sta9on, non-compliance with sec9on 57 did not cause any prejudice to the accused.

19. The burden is always upon the prosecu9on to prove its case, and it shiAs to the accused under Sec9ons 35 and 54 of the NDPS Act only when the prosecu9on has discharged its ini9al burden. In this case, the prosecu9on did discharge the ini9al burden, and it was for the accused to rebut the presump9ons of sec9ons 35 and 54 of the NDPS Act, which had come into play. 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 admiIed that narco9c 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- sec9on (2) as "beyond a reasonable doubt". If the Court, on an appraisal of the en9re 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 en9tled to acquiIal. 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 jus9ce to convict him of the oﬀence 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 Sec9on 35 can be discharged through diﬀerent modes. One is that, he can rely on the materials available in the prosecu9on evidence. Next is, in addi9on to that he can elicit answers from prosecu9on witnesses through cross- examina9on 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 prosecu9on case or in the prosecu9on evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required inten9on, the burden cast on him under Sec9on 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.

20. In Bahadur Singh v State of Madhya Pradesh, 2002 (1) SCC 606, Supreme Court holds, [8]. ...The ques9on of applicability of Sec9on 35 of the Act will not arise in the present case when the recovery itself is doubTul.

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21. The appellant's submission is that there are contradic9ons in the statements of PW-6 and PW-7, which makes the en9re case doubTul. The appellant's stand is that as per PW-6, the recovery memo was also signed by PW-1 Inder DuI, DySP, whereas, in the tes9mony of PW-1 DySP, he admiIed the defense sugges9on as correct that none of the documents contained his signatures. The recovery occurred on 20.05.1997, while the statement of the concerned DySP was recorded in the Court on 16.07.1998, i.e., aAer a gap of more than one year and around two months. Even otherwise, the DySP was not a spot witness because he was only called to supervise the search at that 9me, apprising the accused of their rights under Sec9on 50 of the NDPS Act, which otherwise was not applicable. This discrepancy would have come because of a 9me-lapse and cannot be considered prejudicial to the accused.

22. The Counsel for the appellant has pointed out the following contradic9on as per PW-6 Raj Kumar, PW-1 DySP Inder DuI had reached the spot at 11.00 a.m. and had remained at the spot 9ll 01.15 p.m., whereas, to the contrary, PW-1 Inder DuI Dy.S.P. had stated that he had reached the spot at noon and had leA around 2.00 p.m. In both the statements, the 9me that PW1 Dy.S.P. had spent on the spot was about two hours, and even if the 9me was wrongly men9oned at 11.00 or 12.00, this discrepancy is not that serious about crea9ng a dent in the prosecu9on version because of the lapse of 9me of his examina9on in the Court. PW-7 Dhan Singh submiIed that Dy.SP reached the spot at 10:30 a.m. and leA at 1:00 p.m.

23. The appellants contended that the Jeep from which the alleged recovery was made neither belonged to them nor were they connected with the Jeep. In addi9on, the police falsely implicated the appellants without verifying and arres9ng the Jeep's owner. The recovery was from the Jeep, where the accused were found present. The accused did not engage diﬀerent counsel and their joint stand in their statements recorded under sec9on 313 CrPC, and they claim false implica9ons because they belong to the opposite group and did not lead any defense evidence to substan9ate their stand, which remains unproven. In the given situa9on, it was immaterial who owned the Jeep.

24. Counsel for the appellant has argued that despite the 9me of a search being broad day light and independent witnesses readily available, and when the Deputy Superintendent of Police could have come, then why any other non-police oﬃcial was not called to join as an independent witness, including the driver of the Jeep carrying scale and weights, the shopkeeper from whom these were procured, any nearby government oﬃcial, and despite the day 9me, no eﬀort was made to associate them. She submits that no no9ce under Sec9on 160 Cr.P.C. was issued to any person to join as a witness. On the contrary, the State's counsel argued that the police party had tried to associate the independent witness, but none agreed to become and even otherwise, the statement of the rest of the police oﬃcials is suﬃcient in evidence, and there are no 10 of 2010 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 legal provisions of law that if independent witnesses are not associated then it shall either vi9ate the trial or shall cause prejudice to the accused. The State's counsel further argued that no speciﬁc allega9ons of hos9lity had been leveled against any police oﬃcials, and once the Deputy Superintendent of Police was present, there was no occasion for implica9ng falsely or incorrectly.

25. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, Cons9tu9onal bench of Supreme Court, observed, [14]. The provisions of Sec9ons 100 and 165 CrPC are not inconsistent with the provisions of the NDPS Act and are applicable for aﬀec9ng search, seizure or arrest under the NDPS Act also. However, when an empowered oﬃcer carrying on the inves9ga9on including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narco9c drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and con9nue the inves9ga9on as provided there under. If the inves9ga9ng 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 thereaAer proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh1 case aAer 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 par9cularly those of Sec9ons 100, 102, 103 and 165 per se does not vi9ate the prosecu9on case. If there is such a viola9on, what the courts have to see is whether any prejudice was caused to the accused. While apprecia9ng the evidence and other relevant factors, the courts should bear in mind that there was such a viola9on and evaluate the evidence on record keeping that in view.

26. It is indisputable that the inves9gator and his superior oﬃcer neither associated nor tried to join any independent witness or rendered any explana9on. An analysis of judicial precedents would be necessary to determine the eﬀect of such lapse, admissibility of tes9monies of police oﬃcials, and prejudice caused to the accused.

27. In State of Bihar v. Basawan Singh, AIR 1958 SC 500, Cons9tu9onal Bench of Supreme Court holds, [10]. If the witnesses are not accomplices, what then is their posi9on? In Shiv Bahadur Singh's case it was observed, with regard to Nagindas and Pannalal, that they were par9san 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 observa9ons quoted above from a full report of the decision, as the scru9nize 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 rejec9on even with regard to the 1 State of Punjab v. Balbir Singh (1994) 3 SCC 299.

11 of 2011 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 evidence of witnesses who may be called par9san or interested witnesses. It is plain and obvious that no such rule can be laid down; for the value of the tes9mony 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-examina9on etc. There is no doubt that the tes9mony of par9san or interested witnesses must be scru9nized 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 maIer of prudence look for independent corrobora9on. 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 corrobora9on is available.

28. In Masal9 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 par9san 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 maIers 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 par9san or interested witnesses. OAen enough, where fac9ons prevail in villages and murders are commiIed as a result of enmity between such fac9ons, criminal Courts have to deal with evidence of a par9san type. The mechanical rejec9on of such evidence on the sole ground that it is par9san would invariably lead to failure of jus9ce. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cau9ous in dealing with such evidence; but the plea that such evidence should be rejected because it is par9san cannot be accepted as correct.

29. In Tahir v. State (Delhi), (1996) 3 SCC 338, while dealing with a case under Terrorists and Disrup9ve Ac9vi9es (Preven9on) Act 1987, Supreme Court holds, [6]. ...In our opinion no inﬁrmity aIaches to the tes9mony of police oﬃcials, merely because they belong to the police force and there is no rule of law or evidence which lays down that convic9on 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 scru9ny 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, aAer careful scru9ny, inspires conﬁdence and is found to be trustworthy and reliable, it can from basis of convic9on and the absence of some independent witness of the locality to lend corrobora9on to their evidence does not in any way aﬀect the creditworthiness of the prosecu9on case.

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30. In Kalpnath Rai v. State, (1997) 8 SCC 732, Supreme Court, while dealing with a case under Terrorist and Disrup9ve Ac9vi9es (Preven9on) Act, 1987, holds, [90]. There can be no legal proposi9on that evidence of police oﬃcers, unless supported by independent witnesses, is unworthy of acceptance. Non-examina9on 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 scru9nising the evidence of the police oﬃcers. If the evidence of the police oﬃcer is found acceptable it would be an erroneous proposi9on that court must reject the prosecu9on version solely on the ground that no independent witness was examined..."

31. In Bahadur Singh v State of Madhya Pradesh, 2002 (1) SCC 606, Supreme Court holds, [3]. According to the prosecu9on there were two independent witnesses in whose presence the poppy straw was recovered and seized. The prosecu9on, however, examined only one of them, namely, Pawan Kumar Sharma, PW1. PW1 did not support the prosecu9on and was declared hos9le. He though admiIed his signatures as a punch witness to the documents but denied that in his presence 3.900 kgs. of poppy straw was recovered and seized from the driver, Bahadur Singh and cleaner, Amreek Singh. The convic9on was, however, based on the sole tes9mony of Inves9ga9ng Oﬃcer, Head Constable Gon9ya, PW3.

[5]. There are serious material discrepancies in the evidence in respect of recovery and seizure...

[8]. Under the aforesaid circumstances the appellant cannot be convicted on the sole tes9mony of policy witnesses, PW3. The ques9on of applicability of Sec9on 35 of the Act will not arise in the present case when the recovery itself is doubTul. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the Maalkhana. The prosecu9on has thus failed to prove its case beyond all reasonable doubts against the appellant who is accordingly en9tled to beneﬁt of doubt.

32. In Karamjit Singh v. State (Delhi Administra9on), 2003(5) SCC 291, Supreme Court holds, [8] ...The tes9mony of police personnel should be treated in the same manner as tes9mony of any other witness and there is no principle of law that without corrobora9on by independent witnesses their tes9mony cannot be relied upon. The presump9on that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general applica9on can be laid down...

33. In State of Punjab v. Partap Singh, 2004 Drugs cases (Narco9cs) 104, Supreme Court, in its order, observed, [2]. ... We also no9ced the fact that the inves9ga9ng agency has 13 of 2013 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 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."

34. In Dharampal Singh v. State of Punjab, 2010(9) SCC 608, Supreme Court observed, [16]. ...It has come in the evidence of the prosecu9on witnesses that an aIempt was made to join person from public at the 9me of search but none was available. In the face of it mere absence of independent witness at the 9me of search and seizure will not render the case of the prosecu9on unreliable.

35. In Ajmer Singh v. State of Haryana, (2010) 3 SCC 746, Supreme Court holds, [16]. The learned Counsel for the appellant has submiIed that the evidence of the oﬃcial witness cannot be relied upon as their tes9mony, 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 tes9mony of the prosecu9on 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 inves9ga9ng party to include independent witness at the 9me 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 situa9on, it is normally expected that there should be independent evidence to support the case of the prosecu9on. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are sa9sﬁed that it would be travesty of jus9ce, if the appellant is acquiIed 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 9mes. The obliga9on to take public witnesses is not absolute. If aAer 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 vi9ated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police oﬃcer was believable aAer taking due care and cau9on in evalua9ng their evidence.

36. 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 GazeIed oﬃcer, the Supreme Court holds, [4]. ...It is true that no independent witness had been involved and no aIempt had been made in that direc9on. However, keeping in mind that the seizure had been eﬀected at about 5:30 a.m. and was the outcome of a sudden mee9ng 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 9me of the incident and all have supported the seizure that had taken place. Even 14 of 2014 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 assuming that SI Jaspal Singh bore some animosity the possibility of false implica9on has been dispelled by the presence of the other police oﬃcers par9cularly DSP Bhulla Singh.

37. In Munish Mubar v. State of Haryana, 2012(10) SCC 464, Supreme Court holds, [25]. In view of the aforesaid discussion, it is evident that in spite of the fact that in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not aﬀect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examina9on to Inspector Shamsher Singh (PW.21) as why the independent person was not made the panch witness. More so, it was the duty of the appellant to furnish some explana9on in his statement under Sec9on 313 Criminal Procedure Code, as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incrimina9ng material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allega9ons made by the appellant could be established.

38. In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, Supreme Court observed, [3]. ...According to the prosecu9on, on 27.06.2004, at about 5.00 p.m., a special barricading was set up by the police party at Basantpur Bus Stand, Pa9ala. At that 9me, 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 siDng 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, convic9on based on their statement cannot be faulted with.

39. In Kashmiri Lal v. State of Haryana, 2013(6) SCC 595, Supreme Court holds, [9]. As far as ﬁrst submission is concerned, it is evincible from the evidence on record that the police oﬃcials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police oﬃcers cannot be cited as witnesses and their tes9mony should always be treated with suspicion. Ordinarily, the public at large show their disinclina9on to come forward to become witnesses. If the tes9mony of the police oﬃcer is found to reliable and trustworthy, the court can deﬁnitely act upon the same. If in the course of scru9nising the evidence the court ﬁnds the evidence of the police oﬃcer as unreliable and untrustworthy, the court may 15 of 2015 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 disbelieve him but it should not do so solely on the presump9on that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quan9ty of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) RCR (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another, 2001(1) RCR (Criminal) 56 : 2001(1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) RCR (Criminal) 289 : 2006(13) SCC 229. Apprecia9ng the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the tes9mony of the oﬃcial witnesses which is otherwise reliable and absolutely trustworthy.

40. In Pramod Kumar v. State (GNCT) of Delhi, 2013(6) SCC 588, Supreme Court holds, [10]. ...There is no denial of the fact that the occurrence had taken place in the house of Chander Pal who has turned hos9le. However, from his tes9mony and other evidence brought on record, it is evident that the occurrence took place in his house. His turning hos9le does not aﬀect the case of the prosecu9on. The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their tes9mony. This Court, aAer referring to State of U.P. v. Anil Singh, 1990(3) R.C.R (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another, 2001(1) R.C.R.(Criminal) 56 : (2001) 1 SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R. (Criminal) 289 : (2006) 13 SCC 229, has laid down recently in Kashmiri Lal v. State of Haryana, 2013(3) R.C.R.(Criminal) 259 :

2013(4) Recent Apex Judgments (R.A.J.) 28 , that there is no absolute command of law that the police oﬃcers cannot be cited as witnesses and their tes9mony should always be treated with suspicion. Ordinarily, the public at large show their disinclina9on to come forward to become witnesses. If the tes9mony of the police oﬃcer is found to be reliable and trustworthy, the court can deﬁnitely act upon the same. If, in the course of scru9nising the evidence, the court ﬁnds the evidence of the police oﬃcer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presump9on that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quan9ty of evidence...

41. In Krishan Chand v. State of HP, (2018) 1 SCC 222, Supreme Court holds, [15]. 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 prosecu9on regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly 16 of 2016 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 doubTul because had he been so apprehended, by the police, this fact was to come to his no9ce, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family.

[17]. In our opinion, the High Court failed to appreciate that the harsher is the punishment, the more is the strictness of proof required from the prosecu9on and that failing to associate independent witnesses at the 9me of recovery created a dent in the case of prosecu9on.

[18]. As rightly pointed out by the counsel for the appellant that the High Court failed to appreciate that in the absence of independent witnesses, the evidence of the police witnesses must be scru9nized with greater care especially when police witnesses contradicted themselves on the issue as to in whose hand wri9ng the seizure memo, the arrest memo, consent memo and the NCB form were wriIen and the evidence adduced by the prosecu9on is not reliable.

[20]. It is seIled law that the tes9mony of oﬃcial witnesses cannot be rejected on the ground of non-corrobora9on by independent witness. Though, in the present case, the prosecu9on, in support of its case, has examined the Complainant PW-6 and Umesh Kumar PW-4 who have supported the alleged recovery of charas from the accused. However, there are material contradic9ons, as pointed in their statements, which make the prosecu9on case highly doubTul. In our considered view, the High Court by not taking into account the contradic9ons in the evidence adduced held that in case there are minor contradic9ons in the deposi9ons of the witnesses, the same are bound to be ignored and convicted the appellant as aforesaid.

[21]. In view of the material contradic9ons which have come on record, we ﬁnd that the High Court wrongly convicted the appellant as the evidence adduced by the prosecu9on was not carefully scru9nized by the High Court. We are of the considered opinion that the High Court commiIed error in convic9ng and sentencing the appellant.

42. In State of Himachal Pradesh v. Pardeep Kumar, 2018(13) SCC 808, Supreme Court holds, [6]. We have considered the maIer and have heard the learned counsels for the par9es. So far as examina9on of independent witnesses in support of the prosecu9on case is concerned all that would be necessary to say in this regard is that examina9on of independent witnesses is not an indispensable requirement and such non-examina9on is not necessarily fatal to the prosecu9on case. In the present case, according to the prosecu9on, independent witnesses were not available to witness the recovery of the contraband due to extreme cold. The fact that the incident took place at about 6.30 p.m. on 27-01-2009 and that too on the Manali-Kulu road may lend credence to the prosecu9on version of its inability to produce independent witnesses. In the absence of any animosity between the police party and the accused and having regard to the large quan9ty of contraband that was recovered (18.85 kgs.), we are of the view that it is unlikely that the contraband had been planted/foisted in the vehicle of the 17 of 2017 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 accused persons.

43. In Surinder Kumar v. State of Punjab (2020) 2 SCC 563, a three-judge bench of Supreme Court holds, [14]. Further, it is contended by learned senior counsel appearing for the appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be no9ced from the deposi9ons of Devi Lal, Head Constable (PW-1), during the course of cross examina9on, has stated that eﬀorts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecu9on is based on the evidence of oﬃcial witnesses, does not mean that same should not be believed.

44. A survey of the above-men9oned judicial precedents leads to the following outcome.

45. If the witnesses are not accomplices, what then is their posi9on?2 There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are par9san or interested, it has to be very careful in weighing such evidence.3 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 par9san or interested witnesses. 4 Judicial approach has to be cau9ous in dealing with such evidence.5 We cannot forget that it may not be possible to ﬁnd independent witness at all places, at all 9mes. 6 Ordinarily, the public at large show their disinclina9on to come forward to become witnesses7. The obliga9on to take public witnesses is not absolute...If aAer 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 vi9ated.8

46. It is seIled law that the tes9mony of oﬃcial witnesses cannot be rejected on the ground of non-corrobora9on by independent witness9; 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, convic9on based on their statement cannot be faulted with.10 The mere fact that the case of the prosecu9on is based on the evidence of oﬃcial witnesses, does not mean that same should not be believed11; examina9on of independent witnesses is 2 State of Bihar v. Basawan Singh, AIR 1958 SC 500, Cons9tu9onal Bench of Supreme Court of India, [Para 10].

Masal9 v. The state of U.P., AIR 1965 SC 202, a four-member bench of Supreme Court of India, [Para 14].

Ajmer Singh v. State of Haryana, (2010) 3 SCC 746, [Para 16].

Kashmiri Lal v. State of Haryana, 2013(6) SCC 595, [Para 9].

Ajmer Singh v. State of Haryana, (2010) 3 SCC 746, [Para 16].

Krishan Chand v. State of HP, (2018) 1 SCC 222, [Para 20].

Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, [Para 3].

Surinder Kumar v. State of Punjab (2020) 2 SCC 563, [Para 14].

18 of 2018 ::: Downloaded on - 08-11-2023 02:00:01 ::: Neutral Citation No:=2023:PHHC:141718 CRA-S-1472-SB-2002 not an indispensable requirement and such non-examina9on is not necessarily fatal to the prosecu9on case.12

47. There can be no legal proposi9on that evidence of police oﬃcers, unless supported by independent witnesses, is unworthy of acceptance13; there is no absolute command of law that the police oﬃcers cannot be cited as witnesses and their tes9mony should always be treated with suspicion.14 The presump9on that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. 15 If the evidence of the police oﬃcer is found acceptable it would be an erroneous proposi9on that court must reject the prosecu9on version solely on the ground that no independent witness was examined.16 If in the course of scru9nising the evidence the court ﬁnds the evidence of the police oﬃcer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presump9on that a witness from the department of police should be viewed with distrust.17 Where the evidence of the police oﬃcials, aAer careful scru9ny, inspires conﬁdence and is found to be trustworthy and reliable, it can form basis of convic9on and the absence of some independent witness of the locality to lend corrobora9on to their evidence does not in any way aﬀect the creditworthiness of the prosecu9on case18; The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police oﬃcer was believable aAer taking due care and cau9on in evalua9ng their evidence.19

48. The Bri9sh philosopher, jurist, and social reformer Jeremy Bentham conveyed his convic9on that a witness is a cornerstone of a fair judicial system when he ar9culated, "Witnesses are the eyes and ears of jus9ce." While the Indian Evidence Act 1872 does not explicitly provide a deﬁni9on for a witness, the deﬁni9on of 'Fact'20 elucidates an un- derstanding that a witness is one who perceives, infers, or possesses knowledge of a given fact. It is in the trial that elements of bias, prejudice, and interest are assessed, and resultantly, the admissibility and quality of the evidence are evaluated. A witness is a person who, based on their conscious observa9on or experience, has relevant knowl- edge of the happening or non-happening of an event and states or tes9ﬁes about it. The job of a Judge is to mine and reﬁne the truth.

State of Himachal Pradesh v. Pardeep Kumar, 2018(13) SCC 808, [Para 6].

Kalpnath Rai v. State, (1997) 8 SCC 732, [Para 90].

Kashmiri Lal v. State of Haryana, 2013(6) SCC 595, [Para 9].

Karamjit Singh v. State (Delhi Administra9on), 2003(5) SCC 291, [Para 8].

Kalpnath Rai v. State, (1997) 8 SCC 732, [Para 90].

Kashmiri Lal v. State of Haryana, 2013(6) SCC 595, [Para 9].

Tahir v. State (Delhi), (1996) 3 SCC 338, [Para 6].

Ajmer Singh v. State of Haryana, (2010) 3 SCC 746, [Para 16].

As per Sec9on 3 of Indian Evidence Act, 1872, "Fact" means and includes-- (1) anything, state of things, or rela9on of things, capable of being perceived by the senses; (2) any mental condi9on of which any person is conscious.

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49. An apprecia9on of the en9re evidence in the light of the judicial precedents men9oned above and applying such law to the factual scenario that despite an inference that the police inten9onally did not associate any independent witness, such non- examina9on of independent witnesses did not point out that either the police had planted the poppy on the accused, or it was someone else whom the police tried to absolve by implan9ng the accused, or was prejudicial to the accused. The non- examina9on of the person from whom the scale was brought and the police oﬃcer who had carried the scale and the weights would also not cause prejudice to the appellant because of the absence of any cross-examina9on on these aspects. The statements of police oﬃcials cannot be discarded because they are police oﬃcials; however, before that is done, their tes9monies must inspire conﬁdence, which they do in the given evidence proved in this trial, viz-a-viz the nature of sugges9ons put to the witnesses in the defence, and the joint stand of all the accused in 313 CrPC of denial simpliciter. The impugned judgment led to the same result that this court arrived at aAer independently apprecia9ng the evidence and applying the law. To conclude, the prosecu9on has proved its case beyond a reasonable doubt.

Appeal dismissed. Order suspending the sentence of the appellant is recalled. All pending applica9ons, if any, are closed.




                                                           (Anoop Chitkara),
                                                              Judge
06.11.2023
Jyo9-II


Whether speaking/reasoned:            Yes
Whether reportable:                   YES.




                                                             Neutral Citation No:=2023:PHHC:141718

                                       20 of 2020
                  ::: Downloaded on - 08-11-2023 02:00:01 :::

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