Himachal Pradesh High Court
Sohan Lal vs State Of Himachal Pradesh on 2 November, 2016
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.305 of 2014 Reserved on : 31.8.2016 Date of Decision : November 2, 2016 .
Sohan Lal ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting? Yes.
rt 1For the Appellant : Mr. Rajesh Mandhotra, Advocate.
For the Respondents : Mr. R.S. Verma, Additional Advocate General, Mr. Vikram Thakur, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Judge Primarily, the following question of law arises for consideration in the present appeal:
As to whether this Court is obliged to follow the earlier decisions rendered by larger Bench(s) (three Judges), on identical facts, specifically laying down the principle of law, as against a different view taken subsequently by smaller Benches (two Judges) of the apex Court or not?
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:29:13 :::HCHP
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2. Appellant-convict Sohan Lal, hereinafter referred to as the accused, assails the judgment dated 19.6.2014/28.6.2014, passed by Special Judge, Solan, .
Distirct Solan, Camp at Nalagarh, Himachal Pradesh, in Sessions Trial No.13-S/7 of 2012, titled as State of Himachal Pradesh v. Sohan Lal, whereby he stands convicted for offence punishable under the provisions of Section 20 of the of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years rt and pay fine of `1,00,000/- and in default thereof, to further undergo simple imprisonment for a further period of one year.
3. It is the case of prosecution that on 7.8.2012, when SI Narain Singh, alongwith HC Om Parkash (PW-1), Constable Ram Krishan (PW-2) and other police officials, was on patrol duty. At about 10 p.m., a transport vehicle (HRTC Bus) bearing No. HP-10A-3968, which came from Rohru, was stopped for checking. Police party entered the Bus and SI Narain Singh instructed all the passengers to identify their luggage. Accused was found sitting on Seat No.17 and from the bag, so kept by him on his lap, police recovered 3 kgs of Charas, which was taken into possession ::: Downloaded on - 15/04/2017 21:29:13 :::HCHP ...3...
vide Memo (Ex.PW-1/B) in the presence of a co-passenger Surinder Singh (PW-3), sitting on the adjoining Seat No.18, and Pramod Singh (PW-4) Conductor of the Bus. The .
recovered stuff was packed into a parcel and sealed with seal of impression 'M' and NCB form (Ex.PW-11/A) filled up in triplicate. Impression of the seal was taken on a piece of cloth (Ex.PW-1/A). Rukka (Ex. PW-11/C) taken by Constable of Ram Krishan (PW-2), led to the registration of FIR No.156, dated 7.8.2012 (Ex.PW-10/A), for commission of offence, punishable under the provisions of Section 20 of the Act, at rt Police Station, Solan Sadar, District Solan, Himachal Pradesh. With the completion of proceedings on the spot, which were photographed and videographed, the case property entrusted to SHO Chaman Lal, who resealed the same with his own seal 'R' and deposited it with MHC Narender Parkash (PW-8). Kuldeep Kumar (PW-9) took the case property for analysis and deposited it at the Forensic Science Laboratory, Junga. On receipt of the report of the Chemical Examiner (Ex.PW-13/C) and with the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
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4. The accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial.
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5. In order to establish its case, prosecution examined as many as 13 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took of plea of innocence and false implication.
6. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the rt charged offence and sentenced him as aforesaid. Hence, the present appeal by the accused.
7. Assailing the judgment, learned counsel for the accused submits that - (a) in the search/recovery memo (Ex.PW-1/B), Om Parkash was introduced as a witness only to falsely implicate the accused. Such fact stands fortified from the absence of his name in Ruka (Ex.PW-11/C), wherein presence of only two independent witnesses Surinder Singh (PW-3) and Pramod Singh (PW-4) stands recorded. In support, reliance is placed on Deepak Kumar son of Late Shri Satveer Singh v. State of Himachal Pradesh, 2015(1) SLC 579. (b) Search Memo (Ex.PW-11/H) is illegal, as search carried out is in violation of law laid down by the ::: Downloaded on - 15/04/2017 21:29:13 :::HCHP ...5...
apex Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345. (c) Prosecution case is rendered doubtful also by way of link evidence, for in the Malkhana Register, .
reference of the case property is in the shape of two bags and a sample seal, whereas recovery memo reveals recovery of only one bag, which, in any event, does not refer to the sample seal. (d) Absence of reference of NCB of form and sample seal in the Road Certificate (Ex.PW-8/B) further renders the prosecution case to be doubtful. (e) Non-production of the original seal in the Court has rt rendered the prosecution case to be fatal. Reliance is sought on State of H.P. v. Kurban Khan, 2015 Cr.LJ 183;
State v. Anil Kumar, Latest HLJ 2015(HP) 341. (f) There is no proof as to how the contraband substance, after analysis, was brought first to the Police Station and thereafter produced in Court. Absence of such entries in the Malkhana Register renders the prosecution case to be fatal, in view of the decisions rendered by this Court in Shashi Kumar and another v. State of H.P., Latest HLJ 2015(HP) 596; Gurmeet Singh v. State of H.P., 2015(2) Him.L.R.766; and Surender Kumar alias Teena and another v. State of Himachal Pradesh, 2016(1) Him L.R. (DB) 566.
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8. On the other hand Mr. R.S. Verma, learned Additional Advocate General, has supported the judgment for the reasons set out therein.
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9. We have minutely gone through the testimonies of the witnesses and other incriminating material on record.
10. It is a settled proposition of law that presumption of culpable mental state, under Section 35 of of the Act, arises only when prosecution has proved recovery of the contraband substance from the conscious possession of the accused.
rt That such fact is to be proved beyond reasonable doubt is now well settled. (Mohan Lal V. State of Rajasthan, (2015) 6 SCC 222; and Kulwinder Singh and another V. State of Punjab, (2015) 6 SCC 674).
11. In Dharampal Singh v. State of Punjab, (2010) 9 SCC 608, the Hon'ble Supreme Court of India, held that the initial burden of proof of possession lies on the prosecution and once it is discharged, legal burden would shift on to the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence.
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12. Offences under the Act, being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expression .
"possession" is not capable of precise and completely logical definition of universal application in context of all the statutes. "Possession" is a polymorphous word and cannot be uniformly applied, it assumes different colour in different of context. In the context of Section 18/20 of the Act once possession is established, the accused who claims that it was not a conscious possession has to establish it because rt it is within his special knowledge. Section 54 of the Act raises presumption of possession of illicit articles.
13. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state.
It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and tested on this anvil. Once possession is established, the Court can presume that the accused had culpable mental state and committed the offence.
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14. In somewhat similar facts, the Hon'ble Supreme Court of India, had the occasion to consider this question in Madan Lal and another vs. State of H.P., 2003 (7) SCC 465, .
wherein it has been held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.
of Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law.
Similar is the position in terms of Section 54 where also rt presumption is available to be drawn from possession of illicit articles. (See also: Dehal Singh v. State of Himachal Pradesh, (2010) 3 SCC (Cri) 1139); Gian Chand & others v.
State of Haryana, (2013) 14 SCC 420; and Kulwinder Singh (supra).
15. The Apex Court in Mohan Lal (supra) has held that that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...9...
existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the .
unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as owner to the of exclusion of others.
16. Now let us apply the law to the given facts.
Significantly, the accused in his statement, recorded under rt the provisions of Section 313 of the Code of Criminal Procedure, has admitted the prosecution case, so put to him in Questions No.2 to 15, about the presence of the police party on National Highway No.22, near Saproon;
stopping of HRTC Bus bearing registration No.HP-10A-3968 of Rohru Depot for checking; entering of police officials into the bus from the front and the rear gates; checking of luggage of the passengers by Sub Inspector Narain Singh;
his sitting on seat No.17 of the said bus; search of bag (Pithoo) and recovery of the incriminating articles, i.e. red and green coloured micron bag (Ex.P-6), Parcel (Ex.PW-7) and Charas (Ex.P-8) in the shape of wicks and balls;
arranging of electronic weighing scale and weighing of ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...10...
contraband substance; placing of the contraband substance in the micron bag (Ex.P-6) and thereafter in a cloth parcel, and sealing of the parcel with seal of seal impression 'M';
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preparation of NCB form (Ex.PW-11/A) in triplicate; taking into possession of the incriminating articles, including his clothes (Ex.P-3 to P-5) vide Memo (Ex.PW-1/B); conduct of videography (Ex.PW-1/C-1 to Ex. PW-1/C-7) of the of proceedings on the spot; preparation of Rukka (Ex.PW-
11/C), registration of FIR (Ex.PW-10/A), preparation of site plan (Ex.PW-11/D), recording of statements of witnesses, rt taking into possession and release of the HRTC Bus; his arrest vide Memo Ex.PW-11/G and intimation given to his wife; and taking into possession of his ticket (Ex.PW-4/A).
But however, the accused has denied possession of any bag from him, stating that the bag (Pithoo) was recovered from the rack of the bus.
17. Hence, he only wants the Court to believe that such recovery came to be effected not from his personal possession but from an unclaimed bag which was kept on the rack above the seat over which he was sitting.
18. In Raj Kumar v. State of Madhya Pradesh, (2014) 5 SCC 353, Hon'ble the Supreme Court of India, held as under:-
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"22. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then .
the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. [Vide: Ramnaresh vs. State of Chhattisgarh, (2012) 4 SCC 257; Munish Mubar vs. State of Haryana, of (2012) 10 SCC 464: AIR 2013 SC 912; and Raj Kumar Singh vs. State of Rajasthan, (2013) 5 SCC
722.]
23. In the instant case, as the appellant did not rt take any defence or furnish any explanation as to any of the incriminating material placed by the trial court, the courts below have rightly drawn an adverse inference against him. The appellant has not denied his presence in the house on that night. When the children were left in the custody of the appellant, he was bound to explain as under what circumstances Gounjhi died.
24. In Prithipal Singh vs. State of Punjab, (2012) 1 SCC 10, this Court relying on its earlier judgment in State of W.B. vs. Mir Mohammad Omar, (2000) 8 SCC 382, held as under:
"53..... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...12...
special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to .
establish certain facts which are particularly within the knowledge of the accused."
(Emphasis supplied) [Also: Neel Kumar vs. State of Haryana, (2012) 5 SCC 766; and Gian Chand vs. State of Haryana, (2013) 14 SCC 420]"
19. Independent of the aforesaid admissions, we of have examined the testimonies of the prosecution witnesses.
20. rt Noticeably, independent witnesses, namely Surinder Singh (PW-3) and Pramod Singh (PW-4) have not supported the prosecution case. They were declared hostile and extensively cross-examined by the learned Public Prosecutor. Before we deal with their testimonies, we shall first discuss how testimony of a hostile witness is to be appreciated. The law in this regard is now well settled.
21. The apex Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, has held that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act.::: Downloaded on - 15/04/2017 21:29:14 :::HCHP
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22. Further in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312, the apex Court has held that evidence of a hostile witness may contain elements of .
truth and should not be entirely discarded. Their Lordships have held that:
"22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so.
of Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law relating to appreciation rt of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth.
23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543, that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should not be washed out."
(Emphasis supplied)
23. Further in Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327 the Court held that evidence of hostile witnesses can also be relied upon by the ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...14...
prosecution to the extent to which it supports the prosecution version of the incident. It further held that:
"36. It is settled law that the evidence of hostile .
witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the of person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who rt has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624
(b) Prithi v. State of Haryana (2010) 8 SCC 536
(c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525"
(Emphasis supplied)
24. In Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 the Court held that seizure/recovery ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...15...
witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, could be relied on by prosecution and that:
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"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be of dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ rt Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v.
State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC
36)" (Emphasis supplied) ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...16...
25. We now proceed to examine the prosecution case from the version so disclosed by the independent witnesses. Surinder Singh admits to be the passenger, .
sitting on seat No.18, at the time of checking of the bus by the police party. He also admits that accused was sitting as a passenger over seat No.17. He admits that the bus was searched by the police party. Only on the point of recovery, of he states that police found one bag on the upper carriage of the bus, from which Charas was recovered. We do not find this version of his to be true, as we shall discuss rt hereinafter. He admits having signed recovery memo (Ex.PW-1/B) and parcel (Ex.P-2). He tries to explain the same by clarifying that since he was puzzled on account of illness of his child, reluctantly he appended his signatures, but crucially he admits that the police had photographed the entire proceedings and the photographs Ex.PW-1/C-1 to Ex.PW-1/C-7 are the ones which were taken on the spot. He admits that in the photographs, accused is seen with a bag on his lap. Now significantly, this witness does not state that the police intimidated or threatened him of false implication in the case or that the documents were forged or falsely prepared. After all, luggage of all the passengers, including his, was checked. If he was puzzled, he could ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...17...
have refused to participate in the proceedings conducted by the police. For the first time in Court, he has narrated the factum of illness of his child. He admits recovery of .
Charas in the form of wicks and balls from the bag recovered by the police. This Charas kept in a micron bag was wrapped. He also did not make any complaint to any person of having signed the papers without knowing of contents thereof, or his statement so recorded by the police, with which he was confronted to be unture.
26. We are of the considered view that only to help rt the accused, to a limited extent, he deposed contrary to the factual position. Hence, this part of his testimony can be discarded safely.
27. Pramod Singh is a Government employee. He was posted as a Conductor of the bus owned by a Public Sector Undertaking. He admits the police to have checked the bus at the relevant time. He admits that police instructed the passengers to identify their luggage. He also admits the police to have checked the luggage of the passengers. He tries to save the accused by deposing that from one unclaimed bag, which was lying on the shelf, Charas was recovered and when none claimed ownership thereof, under suspicion, since the accused was sitting ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...18...
immediately below such unclaimed baggage, police falsely implicated him. The witness is obviously not telling the truth. We find that the witness was cross-examined by the .
learned Public Prosecutor. He admits to have signed all the papers after noting contents thereof. He has studied upto 12th class and writes and reads in Hindi. He admits his signatures on the recovery memo. This was not under of threat, pressure or coercion. He voluntarily signed the same. Also, he never made any complaint for unnecessary harassment of the passengers by the police. His statement rt (Mark-B), which he denies in Court, wherein he admits recovery of the contraband substance from the conscious possession of the accused, stands duly proved by the Investigating Officer. The witness is bound to disclose the truth, more so being a public servant. That he was associated by the police in the recovery proceedings, he does not deny. Why is it that he did not report false implication of the accused to any one? Why is it that he did not protest against false implication of an innocent person?
Why is it that he immediately did not report the incident being false or fabricated, to any one of his superior officers?
Why is it that he did not inform his superior officers of any unnecessary harassment caused, if any, on account of ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...19...
checking by the police officials? He was duty bound to do so. Under these circumstances, it would be only appropriate that action be taken against this witness, in .
terms of the judgment and order passed by a Coordinate Bench of this Court in Criminal Appeal No.417 of 1996, titled as State of Himachal Pradesh v. Balak Ram.
28. Even from the testimony of independent of witnesses, it cannot be said that a case other than the one which the prosecution wants the Court to believe has emerged. It is not a case where we find two views to have rt emerged on record.
29. It is also a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...20...
ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to .
an extent of his involving innocent people, in that event, no credibility can be attached to the statement of such witness.
30. It is not the law that Police witnesses should of not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as rt much in favour of a police officer as any other person.
There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.
31. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, can form basis of conviction and ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...21...
absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of .
the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by of some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. [See:
Govindaraju alias Govinda v. State by Srirampuram Police rt Station and another, (2012) 4 SCC 722; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625); and Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217].
32. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, held as under:-
"6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...22...
corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
33. In the aforesaid background, we now proceed to .
examine the testimonies of police officials and the case unfurling on record.
34. Simply put, it is the case of the Investigating Officer Narinder Singh (PW-11) that on 7.8.2012, he of alongwith other police officials, was on a patrol duty at Saproon (NH-22). At about 10 p.m., one bus bearing No.HP-
10A-3968 was stopped for checking. Police officials entered rt the bus from both the gates, when he instructed the passengers to identify their luggage and keep it with them for checking. Accused, who was sitting on Seat No.17, was found having kept one Khaki colour "Pithu" (carry bag) on his lap. It was opened for checking, in the presence of the Conductor (PW-4) of the Bus and passenger (PW-3) sitting on Seat No.18. The Pithu contained a micron bag, from which another transparent envelope, wrapped in an adhesive tape, was found. This parcel contained black coloured substance, in the form of wicks and balls. On checking, it appeared to be Charas. As instructed, Ram Krishan (PW-2) brought the scales. When weighed, Charas was found to be 3 kgs. Entire stuff was packed in the very same manner, in which it was opened and sealed with four ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...23...
seals of seal impression 'M'. NCB form (Ex.PW-11/A) was filled up in triplicate and impression of seal 'M' embossed thereupon. Sample of the seal was separately taken on a .
piece of cloth (Ex.PW-1/A), which was signed by both the independent witnesses and Om Parkash as also the accused. Original seal was handed over to witness Pramod Singh. Contraband substance was taken into possession of vide Memo (Ex.PW-1/B). Entire proceedings were got photographed (photographs are Ex.PW-1/C-1 to C-7) and videographed (video CD is Ex.PW-1/C-8). Ram Krishan took rt Rukka (Ex.PW-1/C), which led to registration of the FIR (Ex.PW-10/A). Witness has testified to have recorded statements of independent witnesses Surinder Singh (Mark-
A)(Ex.PW-11/E) and Pramod Singh (Mark-B)(Ex.PW-11/F).
Accused was arrested vide Memo (Ex.PW-11/G) and as per his desire, information furnished to his wife over telephone.
Thereafter, personal search of the accused was conducted vide Memo (Ex.PW-11/H) and certain articles taken into possession. Case property was produced before the SHO, who resealed it by affixing his own seal of impression 'R', whose signatures he has identified. Special Report (Ex.PW-
2/A) so prepared was sent to the Superior Officer through Ram Krishan. He identifies the Charas parcel (Ex.P-2) and ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...24...
Pithu (Ex.P-1) to be the one which stood recovered by him, from the conscious possession of this accused. He has also identified the micron bag (Ex.P-6), Khaki tape (Ex.P-7) and .
other belongings of the accused.
35. The witness has clearly withstood the test of cross-examination. His statement is natural, clear, convincing and cogent. Suggestion put to this witness of of having influenced other witnesses for appending signatures on various documents stands denied by him, so also the fact that police recovered Charas from the unclaimed bag, rt which was kept on the rack, above the seat and the accused having been falsely implicated.
36. We notice, police officials Om Parkash (PW-1) and Ram Krishan (PW-2) to have fully corroborated such version. Their testimonies are clear, cogent and consistent.
37. Having minutely observed the testimonies of the police officials, we do not find defence of the accused to have been probablized. Why would police officials falsely implicate the accused? There is no prior animosity. He was not the only passenger in the bus. Entire luggage, of all the passengers, was checked and recovery effected from the bag kept by him on his lap.
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38. Rajinder Kumar (PW-5) testifies Ram Krishan (PW-2) to have brought the scales from his Dhaba.
39. Ram Krishan also testifies having carried the .
Rukka to the Police Station, which led to the registration of FIR by Hem Ram (PW-10), to which effect, even testimony of this witness is evidently clear.
40. SHO Chaman Lal (PW-13) has also testified of having resealed the contraband substance with his own seal 'R', impression whereof, was taken on a piece of cloth (Ex.PW-1/A). Both Narinder Singh (PW-11) and Chaman Lal rt testify having filled up the NCB forms in triplicate.
41. Case property stood entrusted to Narender Parkash (PW-8), who clarifies that on 8.8.2012, one cloth parcel, having four seals of seal impression 'M' and three seals of seal impression 'R', one bag, sample seals of seals 'M' and 'R', NCB form in triplicate and one Pithu, containing clothes were entered in Malkhana register (Ex.PW-8/A). The parcel of Charas, containing seals 'M' and 'R', as also the NCB form were sent to the Forensic Science Laboratory, Junga through Kuldeep Kumar (PW-9), vide Road Certificate (Ex.PW-8/B). He has identified the parcel (Ex.P-2) to the one which stood deposited with them. Kuldeep Kumar (PW-
5) has also deposed that the parcel handed over to him was ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...26...
deposited, as it is, with the Laboratory. Now significantly, both these witnesses have identified the case property, which remained with them untampered.
.
42. We also find that Special Report, so prepared by Narinder Singh (PW-11) came to be received in the office of Deputy Superintendent of Police by Devender Kumar (PW-
7).
of
43. Hence, the prosecution case remains fully established, beyond reasonable doubt. It is in this backdrop, we observe that accused has failed to even rt probablize his defence, much less dislodge the statutory burden, so cast upon him, both under the provisions of the Act and Indian Evidence Act.
44. It is not the requirement of law that names of all the persons/witnesses, in whose presence search and seizure operations took place, must necessarily be mentioned in the Ruka. Deepak Kumar (supra) also does not lay down such a proposition.
45. That Om Prakash was present on the spot is evident from other ocular/documentary evidence on record.
It definitely cannot be the case of the accused that prior to the filing of the challan, the Investigating Officer was already aware about the fact that independent witnesses ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...27...
would not support the prosecution. Hence, plea of Om Prakash being introduced as a witness only to falsely implicate the accused is farfetched.
.
46. Reliance upon the decisions rendered by learned Single Judge and a Coordinate Bench of this Court in Gurmeet Singh (supra) and Shashi Kumar (Supra), for the reason that malkhana register does not establish of movement of the contraband substance from the Forensic Science Laboratory to the Police Station and thereafter to the Court is misconceived. Not only the decision is clearly rt distinguishable on facts, inasmuch as the Court found the genesis of the prosecution case to be extremely doubtful, but also the Bench subsequently took a different view in Cr.A No.201 of 2016, titled as State of Himachal Pradesh v.
Kishori Lal, decided on 1.9.2016. Hence, earlier decisions rendered in Sanjeev Kumar v. State of H.P., 2016(3) Him.LR (DB) 1529; Rishi Pal v. State of Himachal Pradesh & connected matters, 2016(3) Him LR (DB) 1336; Des Raj & another v. The State of H.P. & connected matter, 2016(3) Him LR (DB) 1455; Sanju v. State of Himachal Pradesh, 2016(2) Him LR 1210; and Kartik v. State of Himachal Pradesh, 2016(2) Him LR 1217 are also of no use to the accused.
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47. It was for the accused to have established the prejudice caused to him on account of non-establishment of the movement of the contraband substance, after it came .
to be analyzed by the experts at the Forensic Science Laboratory. Now, once the prosecution has been able to establish the factum of recovery and seizure of the contraband substance from the conscious possession of the of accused, beyond reasonable doubt, which after analysis was found to be Charas, onus to disprove the same heavily lied upon the accused, which in the instant case was not so rt done.
48. Police officials have deposed that on the spot two bags, i.e. one Pithu and one micron bag, were taken into possession. Their testimonies do not reveal such version to be false. In fact, these bags stand produced in Court. Simply because there is discrepancy in the number of bags in the Malkhana Register, that fact itself would not be sufficient enough to acquit the accused, more so when there is nothing on record to establish as to in what manner it has caused prejudice to him. Similar view stands taken by a Coordinate Bench of this Court in Kishori Lal (supra) (Cr.A No.201 of 2016).
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49. A Coordinate Bench of this Court, by relying upon the decision rendered by the apex Court in State versus N.S. God, (2013) 3 SCC 594, further clarified its .
judgment, rendered in Shashi Kumar (supra) and Gurmeet Singh (supra), that mere absence of entry of a particular fact in the Malkhana Register would not render the prosecution case to be fatal. Significantly, one of the of Judges and author of Surender Kumar alias Teena (supra) was himself a party to the decision rendered in Kishori Lal (supra). rt
50. Absence of reference of NCB form as also the sample seal in the Road Certificate (Ex.PW-8/B), in no manner, renders the prosecution case to be doubtful. It has not caused any prejudice to the accused.
51. According to the accused, the bag was recovered from the rack immediately above his seat. It certainly did not belong to the co-passenger sitting on the adjoining seat. All the passengers, even according to the accused and witness Pramod Singh (PW-4), had identified their luggage. Under these circumstances, it was necessary for the accused to have explained, on the spot, that the bag did not belong to him.
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52. Non-production of original seal in the Court also cannot be said to be fatal, for the police officials have fully established their case of having sealed the case property, .
both on the spot and at the Police Station. There is no discrepancy about the number and nature of the seals.
Also, there is no iota of evidence that they were either broken or tampered with. Report of the FSL (Ex.PW-13/C) is of also evidently clear to such effect.
53. On this issue much reliance is placed on a decision rendered us in Kurban Khan (supra) and Anil rt Kumar (supra), wherein it is held that non-production of original seals does render the prosecution case to be fatal.
As authors of the said decisions, we ourselves clarify them to have been rendered in the given facts and circumstances, which fact, also subsequently stands clarified by another Coordinate Bench of this Court, by relying upon a judgment rendered by the apex Court in State represented by Inspector of Police, Chennai v. N.S. Gnaneswaran, (2013) 3 SCC 594, in Kishori Lal (supra) (Criminal Appeal No.201 of 2016), that the said decisions were rendered in the given facts and circumstances. Not only that, they further clarified that it was incumbent upon the accused to have established prejudice caused to him on ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...31...
account of non-production of the original seal(s) in the Court, particularly when otherwise there was sufficient evidence, linking the seal affixed on the sample and .
embossed on the documents to be the same and the case property to be the one so recovered from the conscious possession of the accused. The Court observed that "availability of other sufficient evidence renders non-
of production of originals seal as a technical defect, which does not vitiate trial unless prejudice is caused........".
"Purpose of production of original seal in the Court is to rt compare it with seal affixed on parcels of contraband and sample in the Court so as to prove that the parcels produced in the Court are the same which were prepared and sealed on the spot at the time of recovery from the accused and also to ensure that parcel sent for chemical examination and received back were the same which were seized and sealed on the spot."
54. In the instant case, the contraband substance came to be recovered not from the person, but from the Pithu of the accused. It is a matter of record that no notice in compliance of Section 50 of the Act came to be issued to the accused. It is also a matter of record that both the ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...32...
person, i.e. the body of the accused as also Pithu were searched by the police party.
55. The Apex Court in State of H.P. v. Sunil Kumar, .
(2014) 4 SCC 780, has extensively dealt with the issue of chance recovery. It stands clarified that mere suspicion, even if it is "positive suspicion" or "grave suspicion", cannot be equated with "reason to believe", as the of concepts are completely different. Only where there is "reason to believe", the Investigating Officer is duty bound to follow the procedure, so prescribed under the Act. The rt Court was dealing with a case where the police officials accidently or unexpectedly came across drug carried by the passenger, travelling in the bus, of which there was no prior information or suspicion with regard thereto.
56. In the instant case, undisputedly, police had no prior information of the accused either dealing with or possessing the contraband substance. The police party per chance stumbled upon the recovery of the contraband substance from the bag held by the accused.
57. While contending that there has been infraction of provisions of Section 50 of the Act, our attention is invited to the decision rendered in Parmanand (supra)(two Judges.
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58. The said decision is squarely inapplicable in the given facts and circumstances. In the said case, the Court was dealing with a case where though two persons were .
arrayed as accused, but recovery of the contraband substance came to be effected from a polythene bag carried by one of them. Though police had informed the accused of their statutory right and also issued notices, but of the accused from whom such recovery came to be effected, contested, of not having independently consented for being searched by the police party, as the document did not bear rt his signatures. While holding that there was infraction of Section 50 of the Act, the Court referred to and relied upon its earlier decisions rendered in Dilip and another v. State of M.P., (2007) 1 SCC 450 (two Judges); and Union of India v.
Shah Alam and another, (2009) 16 SCC 644 (two Judges).
What also weighed with the Court was the fact that the accused stood acquitted by the High Court.
59. Now, when we peruse the decision rendered in Shah Alam (supra), we find the same to have been rendered in the given facts and circumstances, which is quite evident from Para-16 of the Report. Also what weighed with the Court was the otherwise uninspiring testimonies of the police officials, which never came to be ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...34...
corroborated by independent witnesses, who also were not examined in Court.
60. When we peruse the decision of Dilip (supra), .
we find that though actual recovery of the contraband substance came to be effected from the Scooter, but the person of the accused was also searched. The Court found provisions of Section 50 of the Act to have been breached.
of Hence, the Court specifically did not deal with the proposition that though no recovery came to be effected, from the person/body but from a place/object under rt conscious control and possession of the accused, and the accused was searched, failure to comply with the provisions of Section 50 of the Act, would ipso facto vitiate the trial.
We find the decision to have been rendered in the given facts and circumstances and thus clearly distinguishable having no binding effect to the instant facts. Observations made in Para-16 of the Report to the following effect, are moreso obiter in nature, considering the fact that earlier decision rendered by a three-Judge Bench of the Apex Court in State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, was never brought to their Lordships notice. Also, such observations came to be made in the backdrop of the ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...35...
fact that the accused originally stood acquitted and there was serious infraction of Section 42 of the Act.
"16. In this case, the provisions of Section 50 .
might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellant was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done."
61. At this juncture, it would be appropriate to of reproduce the principles laid down by a Constitution Bench (Five-Judges), of the apex Court in State of Punjab v. Baldev rt Singh, (1999) 6 SCC 172, as under:
"57. On the basis of the reasoning and discussion above, the following conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-sec. (1) of Sec. 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...36...
only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Sec. 50 of the Act.
(4) That there is indeed need to protect society .
from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the of laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial rt process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Sec. 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Sec. 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Sec. 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.
(6) That in the context in which the protection has been incorporated in Sec. 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Sec.
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50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-sec. (1) of Sec. 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.
.
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Sec. 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, of notwithstanding the recovery of that material during an illegal search.
(8) A presumption under Sec. 54 of the Act can only be raised after the prosecution has rt established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Sec.
50. An illegal search cannot entitle the prosecution to raise a presumption under Sec. 54 of the Act.
(9) That the judgment in Pooran Mal case (supra), cannot be understood to have Lald down that an illicit article seized during a search if a person, on prior information, conducted in violation of the provisions of Sec. 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search.
(10) That the judgment in AH Mustaffa case (supra), correctly interprets and distinguishes the judgment in Pooran Mal case, and the broad observations made in Pirthi Chanel case (supra) and Jasbir Singh case (supra), are not in turn with the correct exposition of law as Lald down in Pooran Mal case."
62. The said decision came to be considered by another Constitution Bench (five-Judges) in Vijaysinh ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...38...
Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, wherein the Court laid the following principles:
"29. In view of the foregoing discussion, 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 of 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 rt 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. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
"31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."
(Emphasis supplied)
63. In Pawan Kumar (supra), the apex Court was specifically dealing with an accused where both the ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...39...
accused and the bag carried by him were searched and even though no recovery was effected from the person but Charas was recovered from the bag. With these facts, the .
Court observed as under:
11. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-sec. (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be of searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-sec. (2) it is Lald down that if such request is made by the suspected person, the officer who is to take the search, may detain rt the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-sec. (3) lays down that when the person to be searched is brought before such a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made.
12. On its plain reading, Sec. 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Sec. 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered, the requirements of Sec. 50 of the Act are not attracted."
"14. The above quoted dictum of the Constitution bench shows that the provisions of Section 50 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 he may be carrying."::: Downloaded on - 15/04/2017 21:29:14 :::HCHP
...40...
"27. Coming to the merits of the appeal, the high Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have .
recorded a unanimous opinion that the report of the chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and of other evidence on merits. Accordingly, the matter has to be remitted back to the High court for a fresh hearing of the appeal."
(Emphasis supplied)
64. rt The said decision came to be reiterated by another three-Judge Bench of the apex Court in State of Rajasthan v. Ratan Lal, (2009) 11 SCC 464.
65. Apart from the fact that the decision rendered in Pawan Kumar (supra) is squarely applicable to the given facts, there is yet another reason for us to follow the same and that being the law of binding precedents. The apex Court in Union of India and another v. K.S. Subramanian, 1976 (3) SCC 677, also observed as under:
"12. We do not think that the difficulty before the High Court could be resolved by it by following what it considered to be the view of a Division Bench of this Court in two cases any by merely quoting the views expressed by large benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that, in each of the cases cited before the High Court, observations of this Court occur in a context different from that of the case ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...41...
before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by .
larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view."
of (Emphasis supplied)
66. The principle stands reiterated by a three-Judge rt Bench of the apex Court in Pyare Mohan Lal v. State of Jharkhand and others, 2010 (10) SCC 693, as under:
"24. In view of the above, the law can be summarized to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed......."
67. Further, the Constitution Bench (five-Judge) of the Apex Court in P. Ramchandra Rao v. State of Karnataka, 2002 (4) SCC 578, has observed that:
"........Even where necessities or jurisdiction , if any were found therefore, there could not have been scope for such liberties being taken to transgress the doctrine of administration of justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a Larger Bench of this Court and not to deviate by any other means......"
[Also : Pyare Mohan Lal (supra); Union of India v. Raghubir Singh, AIR 1989 SC 1933; N S Giri v.
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Corporation of City of Mangalore, AIR 1999 SC 1958; Director of Settlement, AP v. M.R. Apparao, AIR 2002 SC 1598; Hyder Consulting (UK) Ltd. V. Governor, State of Orissa and others, (2015) 2 SCC 189] .
68. Hence, we are bound by the decisions rendered by three Hon'ble Judges of the Apex Court in Pawan Kumar (supra) & Ratan Lal (supra), and not Parmanand (supra), Shah Alam (supra) & Dilip (supra), rendered by two Hon'ble of Judges of the same Court.
69. Hence, the contention that the search is illegal or that there has been violation of mandatory provisions of rt Section 50 of the Act is untenable in law.
70. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence.
71. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for.
There is sufficient, convincing, cogent and reliable evidence on record to this effect. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by ::: Downloaded on - 15/04/2017 21:29:14 :::HCHP ...43...
the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner .
and hence is to be disbelieved.
72. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court.
The Court has fully appreciated the evidence placed on of record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties.
rt Hence, the
appeal is dismissed.
73. We have noticed that the Courts below are often faced with the dilemma of dealing with different/various decisions rendered by this Court. As such, we direct the Registrar General of this Court to immediately send a copy of this judgment to every Judicial Officer of the State as also the Director, H.P. Judicial Academy, for appraisal, compliance and necessary action.
74. A copy of this judgment be also sent to the accused.
75. Assistance rendered by Mr. Rajesh Mandhotra, learned Legal Aid Counsel, is highly appreciable.
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Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), .
Judge.
( P.S. Rana ),
November 2, 2016(sd) Judge.
of
rt
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