Kerala High Court
The vs Unknown on 28 May, 2020
R.NARAYANA PISHARADI, J
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Crl.A.No.636 of 2019
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Dated this the 28th day of May, 2020
JUDGMENT
The appellant is the first accused in the case S.C.No.339/2015 on the file of the Court of the Additional Sessions Judge-IV, Thiruvananthapuram.
2. The appellant stands convicted and sentenced for committing an offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
3. The prosecution case, in brief, is as follows: On 08.05.2010, at 15.00 hours, T.Anikumar (PW1), Excise Inspector, Kazhakootam was checking vehicles at Aakulam-Kazhakootam bypass road in Thiruvananthapuram Taluk. PW1 gave signal to stop the autorickshaw KL-01-AW-518 which came by that way. The autorickshaw was not stopped. PW1 and the excise party followed the autorickshaw in the department vehicle and got it Crl.A.No.636/2019 2 stopped. The first and the second accused, who were travelling in the autorickshaw, got down from it and tried to escape by running away from there. The autoriskshaw then sped away. The excise party followed and apprehended the accused. The first accused was carrying a bag in his right hand. PW1 told the two accused that they had the right to get searched in the presence of a gazetted officer or a Magistrate. The accused told PW1 that he may conduct search of them. However, PW1 obtained the presence of the Excise Circle Inspector (PW8) and conducted search of the body of the two accused but no contraband article was found. PW1 then inspected the bag held by the first accused. The bag contained 2.730 kilograms of hashish in a polythene cover. PW1 took samples from the hashish and arrested the accused and seized the contraband substance as per Ext.P1 mahazar.
4. The case against the accused was registered as NDPS CR.No.2/2010. PW1 produced the accused and also the material objects before the court. The investigation of the case was Crl.A.No.636/2019 3 conducted by PW7 Excise Circle Inspector. After completing the investigation of the case, PW8 Excise Circle Inspector filed final report against the two accused for the offences punishable under Sections 20(b)(ii)(C) and 29 of the Act.
5. Both accused pleaded not guilty to the charge framed against them by the trial court under Section 20(b)(ii)(C) and 29 of the Act. During the trial of the case, the prosecution examined PW1 to PW8 and marked Exts.P1 to P28 documents and MO1 to MO6 material objects. On the side of the accused, DW1 and DW2 were examined.
6. The trial court found the first accused guilty of the offence punishable under Section 20(b)(ii)(C) of the Act and the second accused guilty of the offence punishable under Section 20(b)(ii)(C) read with 29 of the Act and convicted them thereunder and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of two years each. This Crl.A.No.636/2019 4 appeal is filed by the first accused challenging the conviction and sentence entered against him by the trial court.
7. Heard learned counsel for the appellant and also the learned Public Prosecutor and perused the records.
8. The prosecution examined eight witnesses. PW1 is the Excise Inspector who detected the offence. PW2 and PW3 are the independent witnesses examined by the prosecution to prove the occurrence. PW4 is the Assistant Excise Inspector who was present in the excise party led by PW1. PW5 is the Scientific Assistant who conducted chemical examination of the samples and issued Ext.P23 report. PW6 is an attestor to the mahazar prepared for seizure of the autorickshaw. PW7 is the Excise Circle Inspector who initially conducted the investigation of the case. PW8 is the Excise Circle Inspector who had witnessed the search and the seizure and who completed the investigation of the case and filed final report.
9. It would be advantageous to make a summary of the Crl.A.No.636/2019 5 testimony of PW1 regarding the occurrence. He has deposed as follows: On 08.05.2010, at about 15.00 hours, he was checking vehicles at Aakulam-Kazhakootam bypass road. He gave signal to stop the autorickshaw KL-01-AW-518 which came from Aakulam side. The autorickshaw was not stopped. The excise party followed the autorickshaw and got it stopped. Then the first and the second accused, who were travelling in the autorickshaw, got down from it and tried to run away from there. There was a bag in the possession of the first accused. The autorickshaw then sped away from the scene. The excise party obstructed the accused. PW1 told the two accused that their body had to be searched and they had the right to get the presence of a gazetted officer or a Magistrate for that purpose. The accused told him that there was no necessity to obtain the presence of any such person. However, PW1 contacted the Excise Circle Inspector (PW8), Thiruvananthapuram over phone and he reached the spot at 15.45 hours. PW1 then inspected the bag held by the first accused. The bag contained a polythene cover Crl.A.No.636/2019 6 which contained a black substance in paste form. On smelling it and also on conducting examination by using the detection kit, PW1 was satisfied that it was hashish. PW1 weighed the hashish and found that its weight was 2.730 kilograms. He arrested the two accused. PW1 took two samples from the hashish, weighing 25 grams each, in two polythene covers. He put labels containing the signature of himself and the witnesses and the accused in the covers which contained the samples and packed them with brown paper and affixed his personal seal on the packets. He also packed and sealed the remaining hashish and seized it and the samples as per Ext.P1 mahazar. PW1 identified the hashish in the court. He also identified the two accused in the court. PW1 also gave evidence that he produced the accused and the material objects in the court on 09.05.2010.
11. PW4 Assistant Excise Inspector and PW8 Excise Circle Inspector have also given evidence regarding the seizure of hashish from the possession of the appellant/first accused. The evidence of these witnesses corroborates the testimony of PW1 Crl.A.No.636/2019 7 regarding the occurrence.
12. PW1 has sworn to the entire incident in necessary details. His evidence, with regard to the seizure of hashish from the possession of the first accused, is corroborated by the evidence of PW4 and PW8. The recitals in Ext.P1 mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, also corroborate his testimony regarding the occurrence. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1, PW4 and PW8 regarding the seizure of hashish from the possession of the first accused.
13. Ext.P23 is the certificate of chemical examination received in respect of the samples sent from the court to the Forensic Science Laboratory. The evidence of PW5 Scientific Assistant along with Ext.P23 certificate shows that the samples which were forwarded to the laboratory through the court were hashish.
Crl.A.No.636/20198
14. The plea made by the appellant, in his examination under Section 313 Cr.P.C, is as follows: He is a coolie worker. When there was no work, he used to go for fishing from canal. On 08.05.2010, when he was returning with fish, the excise officers forcibly made him to take a bag and brought the second accused from somewhere and took them to the excise office. They assaulted him at the excise office and got his signature in some papers without allowing him to read the contents. He was a worker under a person by name Suresh. On account of dispute regarding wages, he had stopped working for Suresh. On account of this enmity, Suresh got him apprehended by the excise officers and implicated him in a false case. He had given complaint to the excise officers, vigilance officers and the Minister concerned in this regard.
15. The plea of the appellant, in his examination under Section 313 Cr.P.C, is that the excise officers compelled him to take the bag which contained hashish. On the other hand, the suggestion made to PW1 in the cross-examination by the Crl.A.No.636/2019 9 appellant, is that he saw an abandoned bag while he was returning from fishing and that he entrusted the bag with the excise officers.
16. DW1 and DW2 were examined by the appellant to prove the plea of false implication in the case.
17. DW1 has deposed in examination-in-chief that he saw the excise officers taking the appellant to the side of the jeep and asking him to take the bag which was lying there. DW1 would say that, after the appellant took the bag, the excise officers got him into the jeep and took him away and the mother of the appellant came there crying and asked the excise officers to release her son but they refused to do so.
18. For more than one reason, the evidence of DW1 is not reliable and trustworthy. In the first place, as noticed earlier, the suggestion made to PW1 in the cross-examination was that the appellant took an abandoned bag and entrusted it with the excise officers. In the second place, the presence of DW1 at the scene Crl.A.No.636/2019 10 of the occurrence, at the relevant time, is very much doubtful. He has stated on cross-examination that he is a person residing at a place 24 kilometres away from the scene of the occurrence. He has given evidence that he was a worker of Seva Dal and he had gone to the place at the instance of one Suseelan, the Secretary of Seva Dal. He would say that he was standing with Suseelan from 15.30 hours to 16.45 hours near the house of Suseelan. DW1 and the appellant were total strangers to each other. DW1 would say that his address was obtained by the lawyer of the appellant from Suseelan. In other words, the appellant was not aware of the fact that DW1 was present at the time of the incident and he got such information from Suseelan. But, Suseelan, who is alleged to be a person who was residing very near the scene of the incident and who had allegedly seen the incident, was not examined by the appellant to prove his version of the incident. The appellant has chosen a person residing at a place 24 kilometres away for that purpose. The credibility of the testimony of DW1 depends on the existence of the person by Crl.A.No.636/2019 11 name Suseelan. But, no such person was examined by the appellant to prove his plea. It is pertinent here to note that, during the cross-examination of DW1, the prosecution has made a suggestion that no such person exists.
19. If the incident had occurred in the manner alleged by the appellant, apart from Suseelan, the other most competent person to give evidence in that regard, is his mother. The appellant did not opt to examine her to prove his version of the incident.
20. DW2 was examined by the appellant rather to disprove the prosecution case. According to the prosecution case, the autorickshaw KL-01-AW-518 in which the accused were travelling and which was sped away from the scene after they got down from it, was seized by PW1 on 08.05.2010 itself at 22.30 hours. The autorickshaw was seen abandoned at the place Kuzhivila and PW1 seized it as per Ext. P20 mahazar. The owner of the autorickshaw was one Chandrika and DW2 is her son. Crl.A.No.636/2019 12
21. DW2 has stated that he was the driver of the aforesaid autorickshaw. He has deposed that he had abandoned the autorickshaw at the place (from which it was seized by PW1) and that he did so at the instance of his father. He would also state that he had driven the autorichshaw for hire on 08.05.2010 only till 10.00 hours on that day. He also stated that the accused had not travelled in his autorickshaw on that day.
22. The evidence of DW2 is also not reliable and trustworthy. It cannot be believed that DW2 abandoned the autorickshaw at the side of a road, that too on the date of the incident, merely for the reason that his father asked him to do so.
23. It has come out in the evidence of DW2 that his mother was not alive at the time of the trial of the case. He has admitted that his mother had obtained interim custody of the autorickshaw by filing Ext.P27 application in the court. In the affidavit filed by his mother in support of the aforesaid application, she had stated that, on the date of the incident, the accused had hired the Crl.A.No.636/2019 13 autorickshaw for travelling. When DW2 was confronted during the cross-examination with the contents of the affidavit filed by his mother, he would say that he has nothing to state about it. In these circumstances, there can be no doubt that the testimony of DW2 is not truthful.
24. The appellant has stated in his examination under Section 313 Cr.P.C that he had given complaint to the excise officers, vigilance officers and the Minister concerned regarding false implication of him in the case. Not even a scrap of paper was produced by the appellant to prove it.
25. There is no whisper of an allegation that PW1 had any motive to falsely implicate the appellant in a serious crime of this nature. There is nothing to show that the excise officers had any axe to grind against the appellant to falsely implicate him in the case. The plea that they have implicated him in the case at the instance of one Suresh, who had entertained enmity towards him on account of dispute regarding payment of wages, is far- fetched. In the aforesaid circumstances, there is no sufficient Crl.A.No.636/2019 14 ground to find that the excise officers have fabricated the case against the appellant. There is no sufficient ground to disbelieve the evidence of PW1, which also stands corroborated by the testimony of PW4 and PW8, regarding the seizure of hashish from the possession of the appellant.
26. Learned counsel for the appellant has also raised the following contentions to challenge the conviction entered against the appellant by the trial court. (1) The requirement under Section 42 of the Act was not complied with by PW1. (2) There was no proper compliance with the requirement of the provisions contained under Section 50(1) of the Act. (3) There was no compliance with the requirement under Section 57 of the Act. (4) It is not safe to rely upon the uncorroborated testimony of excise officers to enter a conviction against the appellant. (5) The investigating officers did not find out the source of the hashish. (6) The driver of the autorickshaw was not arrested.
27. Section 42(1) of the Act provides for entry, search, seizure and arrest without warrant or authorisation. According to Crl.A.No.636/2019 15 this provision, where an empowered officer, who has reason to believe from personal knowledge or information given by any person and who has taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building or conveyance or enclosed place, may, between sunrise and sunset, enter into and search any such building, conveyance or place. Section 42(2) of the Act provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior.
28. PW1 was an excise officer in the rank of Excise Inspector. He is an empowered officer by virtue of the notification issued by the Government of Kerala as G.O.(MS) No.146/90/TD dated 22.10.1990 under Section 41(2) of the Act by which all police officers in the police department of and above the rank of Crl.A.No.636/2019 16 Sub Inspector of Police and all officers of the Excise Department of and above the rank of Excise Inspectors have been empowered to act under Section 42 of the Act (See Sasi v. State of Kerala : 2001 (3) KLT 396).
29. Section 42 of the Act comprises of two components. One relates to the basis of information, that is, (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV of the Act and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 of the Act has no application (See Rajendra v. State of M.P : AIR 2004 SC 1103 and Krishna Kanwar v. State of Rajasthan : AIR 2004 SC 2735).
30. In the present case, the search was conducted and seizure of contraband material was effected not on the basis of any prior information obtained by PW1. It was a chance recovery Crl.A.No.636/2019 17 of the contraband substance by PW1 while he was checking vehicles as a part of patrolling duty. Section 42 of the Act has no application in the absence of any personal knowledge or information by the detecting officer. In these circumstances, the contention regarding violation of the provisions contained in Section 42 of the Act has no merit in it (See Ram Kumar v. Central Bureau of Narcotics : (2008) 5 SCC 385).
31. Section 42 of the Act would be invocable only if the search is made by the officer upon prior information. It is settled proposition of law that when such an information or intimation or knowledge comes to the notice of the detecting officer in the course of regular patrolling, it is not necessary to follow the conditions incorporated in Section 42 of the Act (See Hamidbhai Azambhai Malik v. State of Gujarat : AIR 2009 SC 1378).
32. Learned counsel for the appellant relied upon the decision in Abdul Rashid Ibrahim Mansuri v. State of Gujarat : (2000) 2 SCC 513 and contended that compliance with the requirements under Section 42 of the Act is mandatory. Crl.A.No.636/2019 18 It was case in which there was prior information obtained by the detecting officer but such information was not recorded by him. In the instant case, PW1 had no prior information regarding the transporting of the hashish.
33. Moreover, the decision in Abdul Rashid Ibrahim Mansuri (supra) was clarified by a Constitution Bench of the Supreme Court in Karnail Singh v. State of Haryana : (2009) 8 SCC 539. The Constitution Bench has held that in special circumstances and emergent situations where recording of information as required under Section 42 of the Act is not practical prior to search and seizure, and would be detrimental to effectiveness of the search and seizure concerned, the requirement of writing down and conveying information to superior officer, may be postponed by a reasonable period which may even be after the search, entry and seizure. It has been further held that whether there is adequate or substantial compliance with Section 42 of the Act or not is a question of fact to be decided in each case. The Supreme Court further Crl.A.No.636/2019 19 proceeded to hold that non-compliance of the provision contained in Section 42 of the Act would not vitiate the trial if it did not cause any prejudice to the accused.
34. In the instant case, the search and seizure were effected in the presence of the Excise Circle Inspector (PW8), who was the immediate superior officer of PW1 and it is not shown that any prejudice was caused to the appellant.
35. There is yet another aspect which requires consideration. Section 43 of the Act states that any officer of any of the departments mentioned in Section 42 may (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under the Act has been committed and (b) detain and search any person whom he has reason to believe to have committed an offence punishable under the Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any Crl.A.No.636/2019 20 other person in his company. The explanation to Section 43 of the Act provides that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
36. The material difference between the provisions of Section 42 and Section 43 of the Act is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful (See State of Punjab v. Baldev Singh : AIR 1999 SC 2378).
37. In the instant case, the appellant was travelling in a Crl.A.No.636/2019 21 public passenger autorickshaw and not a private autorickshaw. The search of the appellant was conducted when he had got out of the autorickshaw and when he was obstructed when tried to escape from the spot. Section 43 of the Act contemplates seizure made in public place. If a search is made in a public place, the officer taking the search is not required to comply with the requirements under Section 42 of the Act. As the search and seizure were effected at a public place, Section 43 of the Act comes into play and the question of non-compliance of Section 42 of the Act does not arise (See Mohan Lal v. State of Rajasthan : AIR 2015 SC 2098).
38. There is also no merit in the contention of the appellant that there was violation of the provisions contained in Section 50(1) of the Act in conducting the search.
39. Section 50(1) of the Act mandates that an empowered officer should necessarily inform the suspect about his legal right to be searched in the presence of a gazetted officer or a Magistrate.
Crl.A.No.636/201922
40. The Constitution Bench in Vijaysingh Chandubha Jadeja v. State of Gujarat : AIR 2011 SC 77 has held as follows:
"We are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search".Crl.A.No.636/2019 23
41. It is stated in Ext.P1 mahazar that search of the body of the accused was conducted by PW1 but no contraband substance was then found. Search of the body of the accused was done by him after making the accused aware of their right to demand the presence of a gazetted officer or a Magistrate for conducting the search. The evidence of PW1 is that the accused told him that the presence of such officer is not required but he obtained the presence of the Excise Circle Inspector (PW8).
42. Moreover, Section 50 of the Act applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. In case, the recovery of the contraband substance is made from a container being carried by the individual, the provisions of Section 50 of the Act would not be attracted. A bag, briefcase or any such article or container, under no circumstances, can be treated as body of a human being. It is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of Crl.A.No.636/2019 24 the Act. The provisions of Section 50 of the Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying (See Rajendra v. State of M.P : AIR 2004 SC 1103, State of Himachal Pradesh v. Pawan Kumar : AIR 2005 SC 2265, State of Rajasthan v. Daulat Ram :
AIR 2005 SC 3816, Jarnail Singh v. State of Punjab: AIR 2011 SC 964, Ram Swaroop v. State : AIR 2013 SC 2068 and Kulwinder Singh v. State of Punjab : AIR 2015 SC 2488).
43. In the instant case, the hashish was seized on conducting search of the bag held by the appellant. No contraband article was seized on conducting search of the person or body of the appellant.
44. In State of Punjab v. Baljinder Singh : AIR 2019 SC 5298, the Apex Court has held as follows:
"In the instant case, the personal search of the accused did not result in recovery of any Crl.A.No.636/2019 25 contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search"
was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. ..... Since in the present matter, seven bags of poppy husk each weighing 34 kgs were found from the vehicle which was being driven by accused- Baljinder Singh with the other accused accompanying him, their presence and possession of the contraband material stood completely established".
45. Thus, if a person is found to be in possession of a vehicle, bag, container etc and search of the body of the person as well as the vehicle or the bag or the container is made and if the contraband substance is recovered not on conducting search of the body of the person but from the vehicle or the container, then non-compliance with the requirements under Section 50 of Crl.A.No.636/2019 26 the Act would be of no consequence and the accused will not be entitled to be acquitted on that ground. The dictum laid down in Baljinder Singh (supra) squarely applies to the facts of the present case.
46. Of course, in S.K.Raju alias Abdul Haque alias Jagga v. State of West Bengal: AIR 2018 SC 4255, it has been held that as soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 of the Act would be attracted, irrespective of whether contraband is recovered from the person of the detainee or not. Baljinder Singh (supra) does not refer to the earlier decision in Raju alias Abdul Haque (supra). But, very recently, in Than Kunwar v. State of Haryana : (02.03.2020-SC) : MANU/ SC/ 0242/ 2020, the Apex Court has taken note of the divergent views in Baljinder Singh (supra) and Raju alias Abdul Haque (supra). After making a reference to the decision of the Constitution Bench in State of Punjab v. Baldev Singh : (1999) 6 SCC 172, in Than Kunwar (supra) it has been held as follows: Crl.A.No.636/2019 27
"As already noticed, we are not oblivious of the observation which has been made in the other three Judge Bench judgment of this Court in Sk. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra).
We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required".
47. In the instant case also no contraband substance was recovered on conducting search of the body of the appellant and therefore, this Court is inclined to follow the decisions in Baljinder Singh (supra) and Than Kunwar (supra) and hold that the provision contained in Section 50(1) of the Act does not apply to the facts of the case.
48. Section 57 of the Act states that, whenever any person makes any arrest or seizure under the Act, he shall, within forty- eight hours next after such arrest or seizure, make a full report Crl.A.No.636/2019 28 of all the particulars of such arrest or seizure to his immediate official superior.
49. PW1 has not given any evidence regarding sending of a report under Section 57 of the Act to his superior officer. But, as noticed earlier, search, seizure and arrest were effected by PW1, in the presence of PW8 Excise Circle Officer, who was his immediate superior officer. Moreover, compliance with the provision contained in Section 57 of the Act is not mandatory (See Babubhai Odhavji Patel v. State of Gujarat : AIR 2006 SC 102 and Bahadur Singh v. State of Haryana : (2010) 4 SCC 445).
50. Learned counsel for the appellant contended that the independent witnesses did not support the prosecution case and implicit reliance cannot be placed upon the testimony of official witnesses to enter conviction against an accused in a case of this nature where the law provides for stringent punishment.
51. PW2 and PW3 are the independent witnesses examined by the prosecution to prove the occurrence. They turned hostile Crl.A.No.636/2019 29 to the prosecution. PW2 identified his signature in Ext.P1 mahazar. He has deposed that he put his signature in the paper, at the instance of excise officers, on the evening of 08.05.2010 at the place of the incident. He also identified his signature on the labels affixed on the material objects. He also stated that PW3 was then present at the spot of the incident. But, he would state that he did not see the accused persons, who were present in the court, at the scene of the incident. PW3 also identified his signature in Ext.P1 mahazar. But, he would state that he was seeing the accused for the first time in the court.
52. The evidence of PW2 supports the prosecution except for the fact that he does not admit the presence of the accused at the scene of the incident. The evidence of PW3 also shows that he was summoned by the excise officers from his house and he signed the seizure mahazar at the spot of the occurrence.
53. It is trite that when the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. It is for the Crl.A.No.636/2019 30 accused, through cross- examination or through any other materials, to show that the evidence of the official witnesses is either unreliable or at least unsafe to be acted upon. There is no legal proposition that evidence of official witnesses unless supported by independent evidence is unworthy of acceptance. Evidence of police or excise officers cannot be discarded merely on the ground of their desire to see the success of the case. However, prudence requires that the evidence of such officers who are interested in the outcome of the result of the case shall be carefully scrutinized and independently appreciated. Mere fact that they are official witnesses does not by itself give rise to any doubt about their creditworthiness. If the testimony of an official witness is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds that the evidence of such a witness is unreliable and untrustworthy, the court shall disbelieve him but it should not do so solely on the presumption that a departmental witness should be viewed with distrust. Credibility of a witness Crl.A.No.636/2019 31 has to be tested on the touchstone of truthfulness and trustworthiness. It is not the law that official witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by the testimony of independent witnesses. Evidence of such officers must be considered on its own merits and its own inherent improbabilities.
54. Appreciating the evidence on record on the basis of the aforesaid principles, I do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy. It is significant that the evidence of the official witnesses regarding the occurrence is also partially supported by the testimony of the independent witnesses, though declared hostile to the prosecution.
55. The fact that the driver of the autorickshaw was not arrested by the investigating officer does not in any way affect the case against the appellant. It was from the bag held by the appellant that the hashish was seized. The autorickshaw was a Crl.A.No.636/2019 32 public passenger vehicle. The fact that the appellant may have hired it does not make the driver of the autorickshaw liable. It was not from the autorickshaw that the hashish was seized.
56. Another contention raised by the learned counsel for the appellant is that source of the hashish is not established by the prosecution. It is contended that no investigation was conducted against Suresh who had entertained enmity against the appellant.
57. The accused has no right with reference to the manner of investigation or mode of prosecution. Of course, he can contend that the evidence adduced against him by the prosecution is not sufficient to prove the offence alleged against him. The investigating officer is not expected to conduct the investigation from a particular angle projected by the accused. The fact that the investigating officer could not find out Suresh will not inure to the advantage of the appellant when it is established beyond doubt that the appellant was carrying the bag containing the hashish. There is no law which insists that unless Crl.A.No.636/2019 33 the prosecution establishes the origin or source of the narcotic drug found in the possession of an accused, he cannot be convicted for having conscious possession of such contraband substance.
58. Conscious possession of the hashish by the appellant stands established from the evidence adduced by the prosecution in the case. The appellant was found having in his exclusive possession the bag containing the hashish. There can be no doubt with regard to the fact that the appellant had conscious possession of the contraband substance.
59. As per Entry 23 of the Notification dated 19.10.2001 issued by the Central Government, which deals with hashish, commercial quantity has been mentioned as one kilogram. The quantity of hashish seized from the possession of the appellant is much higher. Therefore, there is no illegality in the order of conviction passed against the appellant by the trial court for committing an offence punishable under Section 20(b)(ii)(C) of the Act. The trial court has imposed on the appellant only the Crl.A.No.636/2019 34 minimum sentence of rigorous imprisonment for a period of ten years and fine of Rs.1,00,000/- prescribed for the offence.
60. In the aforesaid circumstances, I find no sufficient ground to interfere with the conviction and sentence entered against the appellant/first accused by the trial court for the offence punishable under Section 20(b)(ii)(C) of the Act. The appeal lacks merits and it is liable to be dismissed.
Consequently, the appeal is dismissed.
R.NARAYANA PISHARADI, JUDGE jsr