Himachal Pradesh High Court
Narayan Singh vs State Of H.P on 25 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 385/2018 Reserved on: 23.8.2023 Decided on : 25.8.2023 .
Narayan Singh .....Appellant
Versus
State of H.P. ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1Yes For the Appellant:
rt Mr. Ajay Kochhar, Sr. Advocate with Mr. Vivek Sharma, Advocate.
For the Respondent: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Additional Advocate Generals, Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy.A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment, dated 1.8.2018 passed by the learned Special Judge-II, Chamba, H.P. whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for a 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 2period of 2 years under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985( in short, "NDPS Act").
.
2. The case of the prosecution, in a brief, is that on 10.2.2016 at about 8:45 P.M., when HC Virender Singh (PW16) along with HHC Mohd. Aslam (PW1), Constable Sanjay Kumar (PW2), Constable Suneel Kumar, along with I.O. kit, mega light, govt. camera, electronic scale and government vehicle bearing of No. HP 48-1220 was present at 'Dori Ban' in connection with patrolling and nakkabandi, the appellant was noticed coming rt from Khushnagari side towards Tissa having a 'pithu' bag on his right shoulder. On seeing the police party, when he tried to run back, a suspicion arose that he might be carrying some suspicious articles with him and accordingly, he was nabbed on the spot at some distance.
3 At the same time, one car bearing registration No. HP-73-2543 came from the side of Tissa to Khushnagari, wherein driver was the only occupant of the vehicle. The car was got stopped and its driver was asked about his credentials, who disclosed his name to be Babar Khan (PW4). PW4 was associated in the investigation as a witness. Thereafter, the credentials of the appellant were also asked, who accordingly disclosed his name. The 'Pithu' bag of the appellant was opened ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 3 in presence of police officials and independent witness PW-4 and on opening, a multi coloured carry bag was found, wherein .
a black coloured hard substance in the shape of rounds and sticks was recovered. On the basis of smell and experience, the black coloured hard substance was found to be charas/cannabis. The recovered cannabis/charas was thereafter weighed with the help of electronic scale and on of weighment it was found to be 3.568 kgs.
4 The recovered cannabis/charas was put in the multi rt coloured carry bag Ex.P3 in the same manner and the multi coloured carry bag was also put in the 'Pithu' bag. The 'pithu' bag was sealed in a white piece of cloth with five seal impressions of seal 'T'. Thereafter, PW16 filled-in NCB forms in triplicate on the spot. Sample seal was taken on a separate piece of cloth. The seal impression 'I' was also taken on the NCB forms in triplicate. The seal after its use was handed over to PW-1. The parcel containing charas, sample seal and NCB forms in triplicate was taken into possession vide recovery and seizure memo. PW-16 then prepared rukka and sent the same to Police Station Tissa through PW-1. A copy of the rukka was also sent to SDPO Salooni for his information.
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 45 The Superintendent of Police, Chamba was also informed telephonically about the apprehension of the appellant .
with the contraband. On the basis of rukka, an FIR was lodged by SI Babu Ram (PW13) and after registration of an FIR, the case file was prepared and handed over to PW1. Thereafter, on the directions of Superintendent of Police, Chamba, PW-16 telephonically informed SHO, Police Station Tissa about the of incident and requested him to send an independent Investigating Officer to the spot. After some time ASI Ravinder rt (PW-14) came to the spot alongwith other police officials.
6 PW-16 prepared the inventory list and handed over the parcel containing Charas alongwith documents to PW-14, who prepared the spot map on demarcation of PW-16 and recorded the statements of the witnesses on the spot. Thereafter PW-16 alongwith his team left the spot.
7 The appellant after interrogation was arrested by PW14 and information qua his arrest was given to his relative Bodh Raj. After the arrest of the appellant, his personal search was conducted. PW-14 alongwith the police team, appellant and contraband proceeded from the spot to Police Station, Tissa and when they reached at Bus Stand Bhanjararu, PW-1 met them there with the case file. He handed over the case file to PW14, ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 5 who filled in the FIR number on the documents prepared at the spot and recorded the statement of PW-1. The police team and .
appellant reached at Police Station, Tissa at about 3 AM. PW-14 handed over the parcel containing Charas for resealing alongwith the documents and appellant to PW-13, who resealed the case property with five seal impressions of seal 'TD'. Sample seal was drawn on the separate piece of cloth. PW-13 prepared of the reseal memo and PW-14 signed the same as presenter of the case. PW-14 deposited the articles of the appellant rt recovered from him while conducting his personal search with MHC, Police Station Tissa.
8 At about 3.50 AM, PW13 handed over to HC Deep Kumar (PW5) the parcel sealed with five seal impressions of 'I' and resealed with five seal impressions of 'TD'. PW5 entered the above said case property in the Malkhana register at Sr. No.
201. 9 On 11.2.2016, PW5 sent the case property to FSL Jugna alongwith documents vide RC No. 14/16 through Constable Pushap Raj (PW-10) and also made an endorsement on the NCB forms regarding sending of the case property to FSL Junga. On 12.2.2016, PW14 sent the special report to SDPO, Dalhousie through HHC Jagdish. On 20.4.2016, PW-5 received ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 6 the case property alongwith the result of the chemical analysis through HHC Dharmender Kumar (PW-11). On 25.4.2016 PW-5 .
sent the case property from Police Station Tissa to District Malkhana Chamba vide RC No.38/16 through HHC Subhash Singh and MHC made an entry in the Malkhana register to that effect.
10 The Chemical Examiner on analysis of the of contraband opined vide report Ex. PZ that the substance examined was extract of cannabis and sample of Charas and rt quantity of resin found therein was 20.35% w/w.
11 After the receipt of the FSL report (Ex.PZ and on the completion of the investigation PW-14 handed over the case file to SHO Kripal Singh for preparation and presentation of challan, which was accordingly presented in the court for trial.
12 In order to prove its case, the prosecution examined as many as 16 witnesses. Thereafter, statement of the appellant was recorded under Section 313 Cr.P.C., wherein he claimed to be an innocent, but he did not lead any evidence in his defence.
13 The learned Special Judge, after evaluating the oral as well as documentary evidence, convicted and sentenced the appellant, as aforesaid.
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 714 It has been vehemently argued by Mr. Ajay Kochhar, learned Senior Advocate, assisted by Mr. Vivek .
Sharma, Advocate, that there is legal infirmity in the case of the prosecution as despite provisions of Section 52A having been incorporated in the NDPS Act, the prosecution still did not follow said procedure, which vitiated the entire trial and in addition to that, would argue that PW4, so called independent of witness was never an independent witness, but rather a stock witness as he admittedly had been associated as a witness in rt FIR No. 5/16, dated 18.1.2016, which, too, had been registered under Section 20 of the NDPS Act, wherein PW4 was also cited as a witness along with PW1. He would also argue that no effort was made by the police to associate the independent witness despite the fact that they had an official vehicle and police Station Tissa and town of Bhanjararu were merely 5 kms away from the spot. Lastly, he would argue that the case of the prosecution is full of material contradictions and inconsistencies, which go to the root of the case, therefore, the appellant deserves to be acquitted.
15 On the other hand, Mr. J. S. Guleria, learned Deputy Advocate General, has vehemently argued that the judgment passed by the learned Special Judge is legal one ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 8 where all the material aspects of the case including so called contradictions have been taken care of and even otherwise .
recovery of huge quantity of contraband cannot be viewed with suspicion as the same could not have been planted by the police.
16 We have heard the learned counsel for the parties and have also gone through the records of the case carefully.
of 17 Adverting to first submission regarding non-
compliance of the provisions of Section 52A of the NDPS Act, rt learned Senior Counsel would argue that the procedure prescribed therein is mandatory as has been held by the Hon'ble Supreme Court in Noor Aga vs. State of Punjab, 2008 (16) SCC 47, more particularly paras 93 and 94 thereof, which read as under:-
93. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of Magistrate as envisaged under Section 52A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 9 psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes :
.
"(a) Certifying correctness of the inventory so prepared; or
(b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or
(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn."
Sub-section (3) of Section 52A of the Act provides that as and of when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefor such a provision is made would be evident from sub-section (4) rt of Section 52A which reads as under :
"52A. Disposal of seized narcotic drugs and psychotropic substances.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub- section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction.
94 We must also notice a distinction between Section 110(1B) of the 1962 Act and Section 52A(2) of the Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52A. It is of some importance to notice that paragraph 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52A of the Act. Exhibit PJ ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 10 can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1B) of the 1962 Act as the aspect of disposal clearly provided .
for under Section 52A of the Act is not alluded to. The High Court in its judgment purported to have relied upon an assertion made by the prosecution with regard to prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to destruction of case property, of stating:
"To a specific query put to Mr. Guglani by the Court with regard to aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that rt before destroying the case property, a certificate is obtained u/s 100 (1B) of Customs Act. He states that in this regard, a sample as per the provisions contained in sub clause (c) to clause (1B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed.
May be, in my view, some irregularities are committed in this case by the Customs Department while obtaining the order Exhibit PJ) from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved u/s 100 (1B) of the Customs Act or at least a specific request in this regard should have been made in the application but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution for which the appellant can derive any benefit especially under the circumstances when confessional statements made by the appellant are held to be made voluntary as observed by me hereinabove...
Similarly, non- production of cardboard card board carton is also not fatal to the prosecution."
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 11The question which arises for our consideration is as to whether it is permissible to do so. Evidently it is not. Firstly because taking recourse to the purported general .
practice adopted by the Customs Department is not envisaged in regard to prosecution under the Act. Secondly, no such general practice has been spoken of by any witness. A statement made at the Bar as regards existence of such a purported general practice to say the least cannot be a substitute of evidence whereupon only of the court could rely upon. Secondly, the High Court failed to take into consideration that a certificate issued under Section 110(1B) of the 1962 Act can be recorded as a certificate of authentication and no more; authority for rt disposal would require a clear direction of the Court in terms of Section 52A of the Act. Thirdly, the High Court failed and/or neglected to consider that physical evidence being the property of the Court and being central to the trial must be treated and disposed of in strict compliance with the law.
18 He would argue that the aforesaid view in Noor Aga's case was further reiterated by the Hon'ble Supreme Court in Union of India vs. Mohan Lal, (2016) 3 SCC 379 which judgment, in turn, has now been considered by the Hon'ble Supreme Court in one of its recent judgment, in Simarnjit Singh vs. State of Punjab, Cr. A. No. 1443/2023 arising out SLP (Crl.) No. 1958/2023, decided on 9.5.2023, wherein the Hon'ble Supreme court after taking into consideration the ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 12 facts of that case, wherein recovery of eight bags of poppy husk having been found concealed under tarpaulin was made and .
from each bag two samples of 250 gms were taken out and made into 16 parcels and residue of poppy husk in each bag was found to be of 29.5 kgs. It was in this background that the Hon'ble Supreme Court observed as under:-
4. The case of the prosecution in brief is that SI Hardeep of Singh (PW-7) along with other police officers were present at a bridge on a canal in the area of village Balak Khurd for the purposes of patrolling. When they noticed that a rt tempo coming from the side of village Matran, they signalled the tempo to stop. The driver and other two persons sitting in the tempo were apprehended. According to the case of the prosecution, search was conducted in the presence of the District Superintendent of Police of the tempo which led to recovery of eight bags of poppy husk which were concealed under tarpaulin. From each bag, two samples of 250 gms were taken out and made into sixteen parcels and residue of poppy husk in each bag was found to be of 29.5 kgs.
5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr.'. He submitted that the prosecution is section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in- vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub- Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.::: Downloaded on - 25/08/2023 20:34:48 :::CIS 13
6. The learned counsel appearing for the respondent-State supported the impugned judgments.
7. We have perused the evidence of PW-7 Hardeep Singh .
in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case', it was held thus:
of
15. It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officerin-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an rt inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and
(c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.::: Downloaded on - 25/08/2023 20:34:48 :::CIS 14
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, .
samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
of
9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This rt creates a serious doubt about the prosecution's case that substance recovered was a contraband.
19 After going through aforesaid judgments, we are of the considered view that the same do not apply to the facts of the instant case. It would be noticed that in all the earlier judgments, the Hon'ble Court was dealing with case where samples had been drawn from the bulk and then samples had been sent for chemical analysis and the residue or bulk sample remained with the investigating agency. However, this is not the fact obtaining situation in the instant case. Here, the entire contraband had been sent for chemical analysis that too on the very next date of its recovery. In such circumstances, there could be no better and primary evidence for the purpose of trial.
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 1520 Adverting to the next contention PW4 not being an independent witness, suffice it to say, that if the witness was a .
stock witness, as is other claimed and argued by the learned senior counsel, then we see no reason why he had not supported the case of the prosecution in its totality and was required to be declared hostile.
21 As regards non association of independent witness, of it has to be appreciated that the instant case is that of chance recovery and even otherwise, the available independent witness rt was associated by the police.
22 As regards there being material contradictions, it has been argued by the learned senior counsel that there are material inconsistencies and contradictions with regard to time and place. As per PW14, the police party met PW1 with the case file at Bhanjararu bus stand, whereas PW9 denied this fact in totality and claimed that PW1 never met the police party while coming to the Police Station.
23 However, we find that so-called contradiction pointed out in the statements of PW14 and PW9 cannot be termed to be contradictions for the simple reason that PW9 in his cross-examination was not confronted with question of PW1 meeting the police party, rather suggestion was that they had ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 16 met one HHC Aslam Beg and not HHC Mohd. Aslam (PW1) who was unknown and not at all connected with this case much less .
member of the raiding party.
24 Learned senior counsel for the appellant would then argue that as per the statement of PW1, parcel was stitched by HC Virender Singh, however contrary to that PW2 deposed that parcel was stitched by PW1 HHC Mohd. Aslam He has further of argued that PW16 had deposed that the photographs had been clicked on the spot, whereas PW2 deposed that photographs rt were not clicked due to non functioning of the camera. It is on the strength of these contradictions, the appellant would claim that the prosecution case was false or that the police party was not present on the spot. He would further argue that it is more than settled principle of criminal jurisprudence, that the more serious is the offence, the stricter the degree of proof is required since a higher degree of assurance is required to convict the appellant. In support of his argument, he would place reliance upon judgment passed by one of us (Justice Tarlok Singh Chauhan) in Prem Singh vs. State of H.P., 2018 (3) ILR HP 272, wherein it was held as under:-
6. We only need to remind that it is well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 17 degree of assurance is required to convict the accused.
(See: Mousam Singha Roy and others vs. State of W.B. (2003) 12 SCC 377.) .
25 In addition to that, he has also placed reliance on the following judgments:
(i) State of H.P. vs. Krishan Chand, 2018 (1) SCC 222;
(ii) Sarwan Dass vs. State of H.P., 2017 (2) Latest of HLJ 1179;
(iii) Satya Narayan vs. State of H.P., 2016 (3) Him.
L.R. 1768;
rt
(iv) Parkash Chand vs. State of H.P., 2022 (2) Latest HLJ 851;
(v) State of H.P. vs. Ram Krishan 2017 (1) Him.L.R.488:
(vi) State of H.P. vs. Bhagi Ram 2017(1) Crimes 521
(vii) State of H.P. vs. Ramesh Kumar, 2015 (3) SLC 1715;
(viii) State of H.P. vs. Roshan Lal, 2016 (3) SLC 1668;
(ix) State of H.P. vs. Mukesh Mohan, 2016 Cr.L.J. 4211
26 Obviously, there can be no quarrel with the proposition of law as canvassed by the learned senior counsel for the appellant, however then it is also settled law that minor contradictions, inconsistencies, embellishments or ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 18 improvements on trivial matters, which do not affect core of the prosecution case, should not be made a ground on which .
evidence can be rejected in its entirety.
27 Exaggeration per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
of Therefore, mere marginal variations in the statements of witnesses can be dubbed as improvements as the same may be rt elaborations of the statement made by the witness earlier. The omissions, which amount to contradictions in material particulars, that is, go to root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
28 Adverting to the present case, all the above mentioned contradictions and inconsistencies are normal in nature and the same do not erode the substance of the testimonies of the witnesses. It has to be remembered that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition etc. Where the omissions amount to ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 19 a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make .
material improvement while deposing in the court, such evidence cannot be safe to rely upon.
29 Further, even if a witness is found false on a point, it does not mean that his entire testimony has to be disbelieved, rather it is duty of the court to separate the grain from the of chaff. At the same time, the Court cannot also ignore that the offence under the NDPS is quite grave and provide stringent rt punishment. Graver is the offence severe should be the punishment.
30 Even if it is assumed that the independent witnesses had not been associated at all, then also the case of the prosecutrix could have sustained on the strength of testimonies of the official witnesses, more particularly, when it is not a case of prior information, but a case of chance recovery. For it is settled that the conviction can be based on the mere testimony of the police officials, which, in the instant case, otherwise is reliable, trustworthy and cogent and cannot be discarded only on the ground that they are police officials and may therefore be interested in the success of the case.
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 2031 Reliance in this regard can conveniently be placed on one of the latest judgments rendered by Three-Judge Bench .
of the Hon'ble Supreme Court in Sathyen Versus State of Kerala, 2023 INSC 703, wherein, it was observed as under:-
"22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, of trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State rt (Govt. of NCT of Delhi)10
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 :
(2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion.
Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 21 principle that quality of the evidence weighs over the quantity of evidence.
23. Referring to State (Govt. of NCT of Delhi) v. Sunil11, .
in Kulwinder Singh v. State of Punjab12 this court held that: - "23... That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is of trustworthy. 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 rt evidence."
24. We must note, that in the former it was observed:-
"21. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature... If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery.
But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi13) had observed that the testimonies of ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 22 police witnesses, as well as pointing out memos do not stand vitiated due to the absence of independent witnesses.
.
26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined."
32 Learned counsel for the appellant would then argue of that it has come in the evidence of prosecution witnesses that the seal 'I' after its use was handed over to HHC Mohd. Aslam, whereas the same ought to have been handed over to the rt independent witness, more particularly, when he was available on the spot.
33 However, we again do not find any merit in this submission, because perusal of FSL report, Ext. PZ, would go to show that one cloth sealed parcel bearing five seals of 'I' and 'TD' each were received at FSL Junga along with sample seal and the documents and after reaching the police station, the case property was again sealed with seal 'TD'. The seals at FSL were found to be intact and tallied with specimen seal.
34 Once that be so, ratio laid down by this Court in Baljeet Sharma vs. State of H.P. 2007 Latest HLJ 707 would clearly apply to the instant case, wherein this court held that in case the report of analysis shows that the seals were ::: Downloaded on - 25/08/2023 20:34:48 :::CIS 23 intact, the case of the prosecution that the case property remained intact has to be accepted as correct.
.
35 In the given facts and circumstances, learned Special Judge is absolutely right in observing that once the appellant is found to have been apprehended with such a huge quantity of charas weighing 3.568 kgs, which is otherwise not easily available in the market, it would be highly improbable of that the police would have planted such a huge quantity and falsely implicated the appellant.
rt The appellant has led no evidence which may establish that the police party or any member thereof was having enmity with him prior to the incident.
36 Having regard to the oral as well documentary evidence, we are in agreement with the findings recorded by the learned Special Judge. From the evidence on record, the prosecution has proved the guilt of the appellant beyond reasonable doubt and the conviction and sentence imposed is in in conformity with the provisions of law and evidence on record, thus no interference is called for, more particularly, when such findings do not suffer from any perversity and illegality.
::: Downloaded on - 25/08/2023 20:34:48 :::CIS 2437 In view of aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant appeal and .
the same is accordingly dismissed, so also the pending application (s), if any.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) of 25.8.2023 Judge (pankaj) rt ::: Downloaded on - 25/08/2023 20:34:48 :::CIS