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TMI Blog2019 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... neither trustworthy nor reliable, and it cannot from basis of conviction. The prosecution has miserably failed to prove its case beyond reasonable doubts. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... gar, on the directions of the Superintendent of Police. (c) When the police party was on their way, HC Tek Chand (PW-1) also joined the patrolling party. (d) The further case of the prosecution, as revealed from the complaint under Section 154 CrPC (Ruka)(Ext. PW-14/A), is that HC-Lakshman Dass (PW-14), Investigating Officer, Special Investigating Unit, Mandi, along with HC-Tek Chand (PW-1), Constable Jitender Kumar (not examined) and Constable Vinod Kumar (PW-2) were on patrolling duty, in a private vehicle, to detect crime under the NDPS Act. They had proceeded towards Sundernagar and Karsog etc. The police party was patrolling through a trail leading from Kotla to Tewan. On 28.7.2010, at around 6.15 a.m., at a place near Tewan, on that trail, one person was noticed, who was carrying a pink-colored polythene packet in his right hand. On seeing the police party, such person became perplexed and started turning back. On this, the police party captured him and inquired about his name. The man revealed his name as Karam Singh (accused). The smell of cannabis (charas) was emanating from him. On this, HCLakshman Dass (PW-14) acquired reasons to believe from his knowledge that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pointed out that he is at the spot conducting further investigation. (l) On receipt of this ruka (Ext.PW-14/A), SHO, ASI Mohan Lal (PW-8) registered the complaint, in FIR No. 129, dated 28.7.2010 (Ext. PW-3/A), in Police Station Karsog against Karam Singh (accused) for the commission of an offence under Section 20 of the NDPS Act. (m) The Investigating Officer (PW-14) made the spot map (Ext. PW-14/B) and recorded the statements of police officials under Section 161 CrPC. (n) The Investigating Officer (PW-14) arrested the accused at 10.30 a.m., and in compliance he also informed Budhi Singh, father of the accused, about his arrest on Phone No. 9816503037. (o) The Investigating Officer (PW-14) proceeded towards the police station, without waiting for Constable Vinod Kumar (PW- 2). However, on the way at a place known as Kelodhar, Constable Vinod Kumar met the police party. At that time, the Investigating Officer (PW-14) recorded the statement of Vinod Kumar (PW-2), and then the police party proceeded towards the police station. On reaching the police station, the Investigating Officer (PW-14) handed over the case property, along with the accused, to SHO, ASI Mohan Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana Incharge, MHC Gian Chand (PW-3); Constable Bhaskar Bhanu (PW-4), who had carried the contraband to SFSL, Junga; SHO/ASI Mohan Lal (PW-8), amongst others, which are formal witnesses. 8 After the completion of the prosecution evidence, in compliance with the provisions of Section 313 CrPC, the incriminating material appearing against the accused was put to him, to which he denied all the circumstances. In answer to Question No. 46, he stated that on 27.7.2010, after he had closed the hotel, a car bearing No. HP28A 0852 arrived there. Lakshman Dass, Jitender, and Jagdish were sitting in the car, and they took him away in the presence of Om Parkash. He further stated that on the next date, he informed his father on the phone. To corroborate his plea, he examined Om Prakash (DW-1). The defence also examined Devinder Verma (DW-2), the Nodal Officer of Airtel. 9 After completion of the evidence, the learned Special Judge found the accused guilty of the charged offence and sentenced him as aforesaid. The convict has come up with the present appeal, challenging his conviction and sentence. DISCUSSION AND ANALYSIS: 10 As the Courts decide cases of circumstantial evidence by culli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quite possible that the hotel owner would not have charged any money from the police for their stay, thus not to be burdened with the liability of paying the taxes, he would not have made such entries. Had he made such entries, then he would have to pay taxes from his pocket. For this reason, the explanation of police officials that the hotel owner did not enter their stay in the hotel register is believable. STEP 3: Spotting the accused- The spot witnesses testified in one voice that when the accused saw the police, he turned back and this aroused suspicion, which led to his search and consequent seizure. STEP 4: Efforts to associate independent witnesses- The case set up by prosecution is that they were patrolling on a trail, which was half a kilometer ahead of Kotlu. The initial document, which mentions about the efforts of the Investigating Officer to associate independent witnesses, is the ruka (Ext. PW-14/A). Based on this ruka, an FIR (Ext. PW-3/A) was registered, which is its literal reproduction. The Investigating Officer stated that the spot is secluded and deserted, and due to this reason, there is no movement of any person. For this reason, the investigating of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in proceedings drawn under Section 313 CrPC, vis-à-vis, his authoring the signatures borne in the relevant parcel and, upon the relevant seizure memos, and, to also cogently prove that qua the accused, making his valid signatures upon memos and his making his authentic signatures on the sealed parcel(s). Contrarily, the afore evidence remains un-adduced, thereupon the effect of existence of the signatures, if any, of the accused, on the seizure memos, is, redundant, and, therefrom the ensuing sequel is, yet, it was imperative upon the Investigating Officer to associate independent witnesses in the relevant proceedings, and, whereas theirs remaining unassociated, despite, their availability, rather engendering the inference qua the Investigating Officer concerned, intending to smother the truth, vis-à-vis, the genesis of the prosecution case, and, also, a further inference is sparked, vis-à-vis, his conducting a skewed and slanted investigation in the apposite FIR. The reasoning of Sessions Judge: Regarding the non-association of any independent witness, in paragraphs 28 the Special Judge says that because the police party had no prior information about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused, but due to lack of signal, he could not do so. The prosecution could not even prove the lack of signals because it has come in the evidence of SHO Amar Chand (PW-9) that there are towers of BSNL and in the statement of the Investigating Officer, he admitted that there were towers of BSNL, Air Cell, Airtel and other companies. Later on, he clarified that he had called the father of the accused, informing him of the arrest of his son. Thus he did not make phone calls to associate independent witnesses. The case of the defence is that the Investigating Officer HC Lakshman Dass (PW-14), Jitender, and Jagdish carried the accused from his shop in a car. The defence suggested this version to the prosecution witnesses. In answer to the statement under Section 313 CrPC, the accused has explicitly stated in the following terms, "I was closing the hotel on 27.7.10. A car bearing registration No. HP-28A-0852 came. Laxman Dass, Jitender and Jagdish were sitting in that car. I was taken in that car in the presence of Om Parkash. I telephoned my father on the next date." Dealing with this aspect, in paragraphs- 36 & 37 of the judgment, the Special Judge did not believe the versi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case." In State of Bihar v. Basawan Singh, AIR 1958 SC 500, Constitutional Bench of Supreme Court holds, "10. If the witnesses are not accomplices, what then is their position? In Shiv Bahadur Singh's case it was observed, with regard to Nagindas and Pannalal, that they were partisan witnesses who were out to entrap the appellant in that case, and it was further observed: "A perusal of the evidence …...leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value." We have taken the observations quoted above from a full report of the decision, as the scrutinize report does not contain the discussion with regard to evidence. It is thus clear that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided there under. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." In Surjit Singh v. State of Punjab, 2011(15) SCC 187, keeping in view the fact of search and seizure in the presence of DySP, a gazetted officer, the Supreme Court holds, " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family." In the light of the binding judicial precedents, the application of the law, when no efforts are made to associate independent witnesses, is summarized as follows: 1) The provisions of Sections 100 and 165 CrPC are consistent with the requirements of the NDPS Act and are applicable for affecting search, seizure, or arrest under the NDPS Act. (Ref: Baldev Singh). 2) Judicial approach has to be cautious in dealing with interested or partisan evidence but such evidence should not be rejected because it is partisan. (Ref: Masalti v. U.P.). 3) There is no universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available. (Ref: Basawan v. Bihar). 4) In the absence of independent witnesses, the rule of prudence requires a more careful scrutiny of the evidence, since the police officials can be said to be interested in the result of the case projected by them. (Ref: Tahi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of each case, if the explanation of the police officials that independent witnesses could not be associated does not inspire confidence, then, coupled with other contradictions, it would lead to the inference that the prosecution did not come up with clean hands. (Ref: Krishan Chand v. H.P.) In Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 (4) SCC 158, Supreme Court observed, (41). "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process... In the present case, the Investigating Officer stated that the village Nehar was at a distance of 500 meters from village Kotlu. He admitted that people frequented this road. It came in the evidence that village Kotlu was 500 meters from the spot. It means that within a kilometer, there was not only a village but also a small market. The fact that people used the trail, where the police conducted seizure, is proved. The evidence also establishes that people had crossed that trail during the time when the investigation was going on at the spot. Even if the Investigating Officer had associated independent witness at some later stage, it would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. The same baggage often keeps changing hands if more than one person are moving together in a group. Such transfer of baggage at the nick of time when it is about to be searched would again create practical problem. Who in such a case would be informed of the right that he is entitled in law to be searched before a Magistrate or a Gazetted Officer? This may lead to many practical difficulties. A statute should be so interpreted as to avoid unworkable or impracticable results. In Statutory Interpretation by Francis Bennion (3rd Edn.) para 313, the principle has been stated in the following manner: "The Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him." Given the settled law, the investigating officer was not under any legal obligation to extend the offer, as contemplated u/s 50 of the NDPS Act, to the accused. STEP 6: Search, seizure, weighing, sampling and sealing- The investigating officer and other police officials, present at the spot, testified in a single tone that everything, including measuring the weight of charas, and its sealing in the cloth parcel, took place at the spot. However, none of them uttered a single word that the police team had the investigating kit with them. It is not their case that they had summoned or procured the sealing material at the spot. There is not even a whisper about the procurement or availability of this evidence. The State wants this Court to believe that since the case property was weighed and sealed, as such, the material was available. However, the issue is whether sealing, etc., took place at the spot or later on in the Police Station, and the burden to prove this fact is on the prosecution and not on the accused. HC Lakshman D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, the absence of cross examination would not mean that the prosecution is discharged of its initial burden to prove its case beyond reasonable doubt. It is well settled by the Constitution Bench of the Supreme Court in Amba Lal vs. Union of India & others, AIR 1961 SC 264 wherein the Supreme Court considered the application of the Sea Customs Act and the Land Customs Act viz-a-viz Section 106 of Indian Evidence Act by holding as under: 8. ...Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This Court in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 (AIR 1956 SC 404) considering the earlier Privy Council decisions on the interpretation of S. 106 of the Evidence Act, observed at p. 204 (of SCR) thus : "The section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts." If S. 106 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h own seal and after resealing, handed over it to MHC Gian Chand (PW-3) for depositing the same in the Maalkhana. HC Gian Chand, MHC Police Station Karsog, corroborates this fact, in his testimony, by admitting the receipt of the case property, which had been resealed by SHO Mohan Lal (PW-8). He further testified that he had kept the case property in the police store (maalkhana), and entered the fact of depositing, in the Maalkhana register at Sr. No. 403 (Ext. PW-3/B). Thus, all these facts stand proved, and such evidence is unrebutted. STEP 10: Special Report u/s 57 of NDPS Act- The Investigating Officer, HC Lakshman Dass (PW-14) testified that he had handed over the case property to the SHO, ASI Mohan Lal (PW-8), who was the officiating SHO of the police station on 28.7.2010. He testified that on 2.9.2010 after the completion of the investigation, he had handed over the case file to the regular SHO, Amar Chand Sharma (PW- 9) of the concerned police station, who corroborated this fact. HC Ram Lal (PW-7) who was posted in the office of Sub Divisional Police Officer Sundernagar as his reader, stated that Sh. Raj Kumar Chandel, who was the SDPO at the relevant time, had handed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e version of HC Tek Chand (PW- 1). The parcel was shown to the witness, and it was noticed that the said parcel was stitched from one side. Now on comparison of this fact of stitching of the package, with the initial seizure documents, it is nowhere mentioned in the search memo (Ext. PW-1/D), FIR (Ext. PW-3/A), special report (Ext. PW-7/A) and ruka (Ext.PW-14/A) that the police had stitched the parcel at the spot. The initial version is definite that the charas, along with polythene packet, was placed back in the cloth parcel. Now, this is a material contradiction in comparison to the factual situation recorded in the above documents. When this witness was confronted with the stitching portion, his simple statement is that it was stitched at the spot. However, there is no corroboration to the newly improved fact of stitching at the spot. Neither earlier documents state so nor do the PW-1 HC Tek Chand, who had testified before the recording of statement of PW-2. The Investigating Officer, HC Laxman Dass stepped into the witness box as PW-14. In his examination-in-chief, he stated that "This polythene bag was wrapped in a piece of cloth. The parcel was sealed with six impressions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that had such evidence been produced, the same would have gone against the prosecution. 11. The presumption under section 35 and 54 of NDPS Act would come into play only when the prosecution discharges the initial burden upon him, by proving its case beyond reasonable doubts. In the present case, the prosecution could not cross this hurdle. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, a three member bench of Supreme Court, 2000(2) SCC 513, holds, "21. No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in subsection (2) as "beyond a reasonable doubt". If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded that even if there were some illegality in the investigation, it would not affect the trial. This Court is of the concerned opinion that the findings as to whether there was any illegality in the investigation are not required to be answered in the present case because it would not cast any specific bearing in the outcome of the case. c) In paragraphs- 39 to 44 of the judgment the Special Judge discussed non-application of Section 42 of the NDPS Act although even in the preceding paragraphs the Special Judge had concluded that it was a case of chance recovery. Hence he has rightly observed that Section 42 would not come into operation. 13. After careful appreciation of the entire evidence, application of law and judicial precedents, the findings returned by the trial Court, convicting the accused, are not based on the correct and complete appreciation of testimonies of prosecution witnesses. It does not lead to an irresistible conclusion of the guilt of the accused, beyond reasonable doubts. 14. One question which will always come to the mind of the Court is that such a considerable quantity would not be planted unless there is animosity against the accused. In answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused." 15. Therefore, appreciation of the evidence and application of law cited hereinabove, take this Court to only one conclusion that the possibility of the investigating team not revealing the true and correct facts cannot be ruled out. After careful scrutiny, the evidence of the police officials, does not inspires confidence, being neither trustworthy nor reliable, and it cannot from basis of conviction. The prosecution has miserably failed to prove its case beyond reasonable doubts. 16. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 10th June 2011 passed by Special Judge, Mandi, Himachal Pradesh, in Sessions Trial No. 55 of 2010, titled as State of Himachal Pradesh vs. Karam Singh, is set aside and the accused is acquitted of the charged offence. The fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged. Appeal stands disposed of, so also pending application(s), if an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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