2019 (2) TMI 548 - SC - Indian Laws

Smuggling of contraband item - Charas - Section 20(ii)(c) of NDPS Act - seizure of the contraband from gunny bags - applicability of Section 50 of NDPS Ac - reliability on a recent decision of this Court in Mohan Lal vs. State of Punjab 2018 (8) TMI 963 - SUPREME COURT OF INDIA . Held that - Section 50 of NDPS Act patently has no application since the recovery was not from the person of the appellant but the gunny bags carried on the scooter. PW5 the independent witness who had signed the search and seizure documents but turned hostile, was duly confronted under Section 145 of the Evidence Act, 1872 with his earlier statements to the contrary under Section 161 Cr.P.C. and did not deny his signatures. The order sheet dated 08.11.1995 of the Trial Court reveals that independent witness Jeevan Kumar was present on that date to depose, but was bound down on objection from the defence side that he be examined on another date along with other witnesses. It is therefore very reasonable to conclude that the witness did not appear subsequently because he may have been won over by the appellant. There is no material to conclude that the witness was withheld or suppressed by the prosecution with any ulterior motive. The only issue surviving for consideration is with regard to the prosecution being vitiated because PW10 was the informant as also the Investigating Officer, in view of Mohan Lal - In Mohan Lal our attention had been invited to the divergent views being taken on the issue with regard to the informant and the investigating officer being the same person in criminal prosecutions, and the varying conclusions arrived at in respect of the same. The facts in Mohan Lal, were indeed extremely telling in so far as the defaults on part of the prosecution was concerned. In that back ground it was held that the issue could not be left to be decided on the facts of a case, impinging on the right of a fair trial to an accused under Article 21 of the Constitution of India. Societal interest therefore mandates that the law laid down in Mohan Lal cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Criminal jurisprudence mandates balancing the rights of the accused and the prosecution. If the facts in Mohan Lal were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused. There is a history of previous convictions of the appellant also. We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. All pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal shall continue to be governed by the individual facts of the case - appeal dismissed.

Issues Involved:
1. Reversal of acquittal and conviction under Section 20(ii)(c) of the NDPS Act.
2. Compliance with Section 100(4) of the Cr.P.C. and Sections 50, 52, and 57 of the NDPS Act.
3. Credibility of independent witnesses.
4. The role of PW10 as both the informant and the Investigating Officer.
5. Application of the Mohan Lal judgment on fair investigation.

Issue-wise Detailed Analysis:

1. Reversal of Acquittal and Conviction under Section 20(ii)(c) of the NDPS Act:
The appellant was convicted under Section 20(ii)(c) of the NDPS Act, sentenced to 20 years imprisonment, and fined ?2 lacs. The High Court reversed the Trial Court's acquittal, which was based on alleged noncompliance with procedural requirements and the failure to produce the seal used during the seizure. The High Court found that the seals were produced and marked as Exhibits PH and PK, and the chemical examiner confirmed the material as "charas."

2. Compliance with Section 100(4) of the Cr.P.C. and Sections 50, 52, and 57 of the NDPS Act:
The Trial Court acquitted the appellant citing noncompliance with Section 100(4) of the Cr.P.C., which pertains to the presence of independent witnesses, and Sections 50, 52, and 57 of the NDPS Act. However, the High Court held that Section 50 of the NDPS Act did not apply as the contraband was seized from gunny bags on a scooter, not from the appellant's person. The Court also noted that the seals were properly produced and there was no evidence of tampering.

3. Credibility of Independent Witnesses:
The appellant argued that the independent witness PW5 turned hostile and did not support the prosecution's case, and the second witness, Jeevan Kumar, was not produced without explanation. The High Court found that PW5 was confronted with his earlier statements under Section 161 Cr.P.C. and did not deny his signatures. The absence of Jeevan Kumar was attributed to possible influence by the appellant, as he was present initially but did not appear later. The Court concluded that there was no violation of Section 100(4) Cr.P.C. and no prejudice was demonstrated.

4. The Role of PW10 as Both the Informant and the Investigating Officer:
The appellant contended that PW10 being both the informant and the Investigating Officer vitiated the conviction, relying on the Mohan Lal judgment. The High Court noted that this issue was not raised at earlier stages, and thus the prosecution had no chance to contest it. The Court emphasized the need to balance individual rights of the accused with societal interests, recognizing that the law in this regard was nebulous before Mohan Lal.

5. Application of the Mohan Lal Judgment on Fair Investigation:
The Court discussed the implications of the Mohan Lal judgment, which emphasized that the informant and the investigator must not be the same person to ensure a fair trial under Article 21 of the Constitution. However, the Court also acknowledged the need to avoid reopening settled cases and creating uncertainty in the justice system. It held that the Mohan Lal ruling should not be applied retrospectively to cases prior to the judgment, to prevent it from becoming a "spring board" for acquittals irrespective of other considerations.

Conclusion:
The Supreme Court dismissed the appeals, finding no merit in the appellant's arguments. It upheld the High Court's decision, emphasizing that the procedural requirements were met, the credibility of witnesses was adequately addressed, and the role of PW10 did not vitiate the conviction under the specific circumstances of this case. The Court also clarified the prospective application of the Mohan Lal judgment to maintain balance in the criminal justice system.

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