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TMI Blog2013 (7) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhuna in an official jeep. The police party saw a jeep coming at high speed from the opposite direction and asked the said jeep to stop. However, instead of stopping, the driver accelerated the speed of the jeep. This created suspicion in the minds of the police officials. Thus, they chased the jeep. The occupants of the jeep took a U-turn and in that process the jeep struck the wall of a house in the village. The three occupants of the jeep tried to run away but they were caught by the police. The said three occupants were later identified as the appellants. They were asked whether they would like to be searched before a Gazetted officer or a Magistrate, however, they chose the former. The Deputy Superintendent of Police was called and a search was conducted in his presence. The vehicle had 10 bags containing 41 kg poppy husk each. The police party took samples of 200 grams of poppy husk from each bag and the same was sealed by the Dy.S.P. B. On the basis of same, an FIR was lodged on 5.9.1996 itself at 3.15 a.m. at the Rania Police Station against the appellants-accused. After investigation, a chargesheet was filed against them and the appellants claimed trial. Hence, the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct while making his statement under Section 313 Cr.P.C. particularly where there are certain presumptions against him under Section 35 of the Act. There are concurrent findings of fact recorded by the courts below. Thus, no interference is called for and the appeal is liable to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. 6. No dispute has been raised regarding the poppy husk recovered from the jeep or the damaged jeep. Further, the appellants did not challenge the result shown in the FSL report wherein the qualitative tests in respect of Meconic Acid, Morphine, Codeine, Thebaine, Papaverine and Narcotine had all been shown as positive. 7. All three occupants, i.e. the appellants abandoned the vehicle just after it dashed against the wall and made a desperate attempt to escape but were apprehended by the police party. The Trial Court examined the matter elaborately and after appreciating the evidence of the witnesses, came to the conclusion that there were no discrepancies in the statements of the three officials, i.e. prosecution witnesses. Their statements inspired tremendous confidence and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss- examination of the prosecution witnesses, or by leading defence evidence. (Emphasis added) 9. Further, in their statement under Section 313 Cr.P.C., the appellants took the plea of false implication only and the appellants miserably failed to rebut the statutory presumption, referred to above. The High Court further held as under:- In the instant case, no plea was taken up by the accused, during the course of trial or in their statements, under Section 313 Cr.P.C. that they were not the occupants of the jeep. No plea was taken by the accused that they were not aware of the contents of the bags, lying in the jeep. No plea was taken up by the driver of the jeep that he was taking the bags, containing poppy husk, as per the directions of the owner thereof, and did not know, as to what was contained in the bags. No plea was taken up, by the other occupants, of the jeep, that they were merely labourers engaged for loading and unloading the bags, containing poppy husk, at the destination. No plea was taken up by the accused, other than the driver, sitting in the jeep, that they only took lift therein, and as such were passengers. They did not take up the plea, that the drive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (Emphasis supplied) (See also: Ravinder Kumar Sharma v. State of Assam Ors., AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181) 12. The defence did not put any question to the Investigating Officer in his cross-examination in respect of missing chits from the bags containing the case property/contraband articles. Thus, no grievance could be raised by the appellants in this regard. 13. The appellants were found travelling in a jeep at odd hours in the night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances. This Court dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872 (hereinafter referred to as `the Act 1872 ). 16. In State of West Bengal v. Mir Mohammad Omar Ors. etc. etc., AIR 2000 SC 2988, this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of 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 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 establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that Avtar Singh (supra) does not lay down the law of universal application as it had been decided on its own facts. 20. So far as Section 313 Cr.P.C. is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. A three-Judge Bench of this Court in Wasim Khan v. The State of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh Anr. v. State of Punjab, AIR 1974 SC 1256 held that every error or omission in compliance of the provisions of Section 342 of the old Cr.P.C. does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him. 21. In Asraf Ali v. State of Assam, (2008) 16 SCC 328, a similar view has been reiterated by this Court observing that all material circumstances appearing in the evidence against the accused are required to be put to him specifically and failure to do so amounts to serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. In Shivaji Sahebrao Bobade Anr. v. State of Maharashtra, AIR 1973 SC 2622, a three-Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under: Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon. (See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v. Superintendent of Customs, AIR 2007 SC 2040). 26. In State, Govt. of NCT of Delhi v. Sunil Anr. (2001) 1 SCC 652, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants. 29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed. In view of the above, the submissions of the learned counsel for the appellants in this regard, are held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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