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TMI Blog2012 (8) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The motorcycle was driven by Gulshan Kumar and pillion rider was Rajesh Dhiman. The pillion rider of the motorcycle was carrying a bag on his back. The motorcycle was signaled to stop. The documents of the motorcycle were demanded. The accused became frightened. In the meantime, a Maruti Van bearing registration number HP-02-6276 came from Ani side, which was also stopped. Karam Chand (PW-3) and Shiv Ram were travelling in the Van. They were also associated in the investigation of the case. The accused were asked whether they intended to be searched before the Magistrate or Gazetted Officer or present police officials. Both the accused told that they intended to be searched before the police officials present on the spot. Consent memo Ex. PW-8/A was prepared. The police officials have also given their personal search to the independent witnesses. Thereafter, the bag was searched in the presence of independent witnesses. In the bag, two polythene bags were found, in which, charas was kept in the shape of balls, sticks and chapattis. PW- 7, Constable Bhopal Singh was directed to bring the weighing scale. The charas weighed 3 Kg. 100 grams. Three samples of charas 25 grams each we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e brought. The charas was weighed on the spot. It weighed 3kg. 100 grams. Three samples of charas 25 grams each were taken out for sample purpose and were sealed with seal impression H . The remaining bulk of charas was also sealed in a separate parcel with seal impression H . The seizure memo of charas Ex. PW-1/A was prepared. The seal after use was handed over to Karam Chand. 6. PW-2, Constable Bhup Singh has corroborated the statement of PW-1, Constable Sunder Singh. PW-3, Sh. Karam Chand was declared hostile. According to PW-4, Sh. Jia Lal, he received rukka, Ex. PW-2/A in the Police Station, on the basis of which, F.I.R. Ex. PW-4/A was registered. SHO Mohinder handed over to him 4 parcels of charas which were sealed with seal impression T . The N.C.B. form in triplicate was also handed over to him. On 11.01.2002, he sent the parcels of sample alongwith seal of impression and N.C.B. in the office of Chemical Analyst, Kandaghat through Constable Tej Ram (PW-9) vide R.C. No. 7/2002. He has also produced the extract of malkhana register, Ex. PW-4/B. 7. According to PW-6, a special report was received in the office on 10.01.2002 at 5:00 p.m. The special report is Ex. PW-6/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Ani. The case property was re-sealed by S.H.O. Police Station, Ani. 9. PW-9, Tej Ram has deposed that on 11.01.2002, one parcel was given to him by MHC Jia Lal. He deposited the parcel in the office of the Chemical Analyst, Kandaghat on 14.01.2002. In his cross-examination, he has stated that on 12th January and 13th January, 2002, it was 2nd Saturday and Sunday and the parcel remained in Police Station, Kandaghat. 10. PW-10, SI Mohinder Kumar has deposed that four parcels were handed over to him with seal impression H at about 8:20 p.m. He resealed the parcels with his own seal. He also filled in N.C.B. form. He handed over the parcels alongwith specimen seal impression and NCB form to MHC Jia Lal (PW-4). He also obtained seal impression on plain cloth Ex. PW-10/A. He prepared the challan and presented in the Court. He also brought the report of Chemical Analyst Ex. PW-10/B. 11. Learned trial Court has acquitted the respondents on the ground that PW-3, Sh. Karam Chand was declared hostile and one Sh. Shiv Ram has not been examined. According to the learned trial Court, the consent memo Ex. PW-8/A was not duly proved. According to the learned trial Court the convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the rapat roznamcha nor it has been proved on record. It has come in the statement of PW-1, Constable Sunder Singh that the departure report was recorded in the Police Station. 16. It is always desirable that the independent witnesses are associated at the time of search, more particularly, in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985. However, there may be circumstances, in which it may be difficult due to geographical condition to associate independent witnesses. 17. In this case, PW-3, Sh. Karam Chand, an independent witness has been declared hostile and one Shri Shiv Ram has not been produced by the prosecution. However, it has come in the statement of PW-8, ASI Purshottam Dutt, Investigating Officer that the witnesses of the locality were not available. He tried to locate independent witnesses from the locality. He inquired from Shri Shiv Ram and PW-3, Karam Chand about respectable residents of the locality. 18. The statements of official witnesses can be relied upon, if it inspire confidence, even though independent witnesses have not been produced and not supported the case of the prosecution. In this case, the chain is complete from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held: Next, the learned counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. Reliance is placed upon the decision in Pradeep Narayan Madgaonkar V. State of Maharashtra. In the decision relied upon while observing that prudence dictates that evidence of police witnesses needs to be subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particulars should be sought . 13. In the instant case we find that the courts below have critically scrutinized the evidence of the prosecution witnesses applying the rule of caution and we find no reason to disagree with their findings. 20. Their Lordships of the Hon ble Supreme Court in Girja Prasad Vs. State of M.P. (2007) 7 Supreme Court Cases 625 have held that the conviction can be recorded solely on the testimony of police officials. However, there is a word of caution th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts corroboration by independent evidence can form basis of conviction if court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable. Their Lordships have held as under: 19. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalawat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is of record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, people belonging to the same village would not unnecessarily want to create bad relations/enmity with any other villager. Especially when such a person would be feeling insecure, having been accused of committing a crime. 24. Their Lordships of the Hon ble Supreme Court in Rameshbhai Mohanbhai Koli and others Vs. State of Gujrat (2011) 11 Supreme Court Cases 111 have held that merely because panch witnesses turned hostile, is no ground to reject evidence, if the same is based on testimony of investigating officer alone. Their Lordships have held as under: 32. An argument was advanced about reliance based on the evidence of investigating officer. This Court in State of U.P. vs. Krishna Gopal and Another, (1988) 4 SCC 302 has held that courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities. Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. [vide State of Kerala vs. M. M. Mathew Anr., (1978) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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