TaxTMI 
TaxTMI 
2019 (10) TMI 9
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.... Court in the impugned judgment is not sound in law. Accordingly, we set aside the impugned order and remand the matter to the High Court for fresh decision on merits in accordance with law. The appeal is disposed of in the above terms." 2. The matter for consideration before this Court is a criminal appeal, filed by the convict, under sections 374 of the Code of Criminal Procedure, 1973, starting now called as CrPC. The appellant is assailing the judgment of conviction 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, convicting the accused for commission of an offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, starting now called as NDPS Act. The trial Court imposed a sentence of rigorous imprisonment for twelve years and to pay fine of INR 1,20,000/- (Rupees one lac and twenty thousand only) and in default of payment of fine to further undergo simple imprisonment for two years. The Court, in terms of section 428 CrPC, ordered to set off the period of detention, undergone during the trial. 3. Upon the S....
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....l of cannabis (charas) was emanating from him. On this, HCLakshman Dass (PW-14) acquired reasons to believe from his knowledge that this polythene packet contained charas. (e) Before proceeding further, the Investigating Officer HC Lakshman Dass (PW-14), asked accused Karam Singh to take his search, in the presence of other two members of the police party, namely HC Tek Chand (PW-1) and Constable Vinod Kumar (PW-2). To this effect, the Investigating Officer HC Lakshman Dass (PW-14), scribed a memo (Ext. PW-1/B), which reveals that the accused Karam Singh did search the Investigating Officer (PW-14), and he did not find anything incriminating therein from his person. (f) After that, the Investigating Officer (PW-14) gave an option under Section 50 of the NDPS Act, to the suspect, vide consent memo (Ext.PW-1/A). As per the contents of Ext. PW- 1/A, Karam Singh consented that he is ready and willing to give his search to the police at the spot itself. (g) At around 7.00 a.m., vide memo (Ext. PW-1/D), the Investigating Officer (PW-14) checked the polythene packet, which the accused was carrying in his hand. On opening the said packet, he noticed a black subst....
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....hen 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 (PW-8). (p) The special report (Ext. PW-7/A) reveals that ASI Mohan Lal resealed the cloth parcel, containing the contraband, with three seals of seal impression-C. He also embossed the impression of seal-C on a separate piece of cloth (Ext.PW-1/G) and handed over the NCB forms, specimen seals and cloth parcel containing charas to MHC Gian Chand (PW-3), with a direction to deposit the same in the Maalkhana. (q) On receipt of the case property, MHC Gian Chand (PW-3) kept the same in the police storeroom, and he also made entries to the said effect in the maalkhana register (store register), (Ext. PW-3/B). (r) On the next day, i.e., 29.7.2010, MHC Gian Chand (PW-3) sent the case property to the State Forensic Science Laboratory, Junga, through Constable Bhaskar Bhanu (PW-4). He also authorized Constable Bhaskar Bhanu to carry the contraband by issuing Road Certificate (Ext. PW-3/D). (s) The SFSL Junga conducted tests from 6th to 9th August 2010. The ....
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....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 culling out the circumstances, similar claims under the NDPS Act might be best analyzed, by going step by step. So this Court is tempted to take the initiative. STEP 1: Is the case based on prior information or is based on chance recovery- The case of the prosecution is that the police party did not have any prior information about the accused carrying charas. On noticing the police, the said person fumbled and started returning. This unusual behavior made the Investigating officer suspicious of the said person carrying some contraband. Resultantly, the police captured him, and on his search detected the charas. Thus the present case is based on chance recovery. However, the NDPS Act does not define chance recovery. Therefore, the procedure and safeguards in cases of chance recovery, laid down by the Hon'ble Supreme Court, in its landmark holding, State of Punjab v. Balbir Singh, (1994) 3 SCC 299, shall follow. STEP 2: Reaching the spot- Ano....
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....uka, 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 officer could not associate any non-police witness. In the Special Report (Ext. PW-7/A) similar fact was reiterated. However, when the spot witnesses testified during the trial, then HC Tek Chand (PW-1) did not utter a single word to corroborate the statement made in the initial recovery documents wherein the reason for non-association of independent witnesses was the absence of movement of people because the area was secluded and deserted. In his cross-examination, HC Tek Chand explicitly stated that when the investigation was going on at the spot, then people were going from that place. He also mentioned that the Investigating Officer had not sent any person to call for any independent witness. Now, this is totally in contradiction with the case set up by the prosecution, wherein the stand is that because there was no movement of people on the spot, as such no independent witness was associated. The conclusion is that no effort was made by....
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....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 the contraband being recovered, therefore, it was not possible to join independent witnesses. The Special Judge also concluded that simply because independent witnesses were not joined, it will not make the case of the prosecution suspicious. Trial Court relied upon judgment of Hon'ble Supreme Court, titled, Kashmira Singh vs. State of Punjab, 1999 Cri.L.J. 2876, and judgment passed by a Division Bench of this Court, titled Chet Ram vs. State, Criminal Appeal No. 151 of 2006, decided on 25.7.2008. The findings of these judicial precedents were on different parameters. In paragraph-33 of the impugned judgment although the Special Judge placed reliance on the decision of Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746. However, the ratio of the said judgment does not give a total go bye to the effect of non-joining of the independent witnesses. The Special Judge concluded that the prosecution case could not be doubted due to the n....
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....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 version of the defence witness Om Prakash (DW-1) on the ground that he did not report the matter to the police though he was a friend of the accused. The case of the police is that they had reached the spot in the private car of HC Lakshman Dass (PW-14), who mentioned the number of the said vehicle as HP 33B 2218. The accused examined Om Prakash as DW-1. He stated that on 27.7.2010 at 6.30 p.m. when the accused had closed his shop, then two police officials along with one Jagdish resident of Ashala came in vehicle No. HP 28 0852. He stated that Jagdish called the accused, and in his presence, the police took him away. Next day the father of the accused called him, and he narrated the entire incident to him. Reason for the father of the accused calling him is that he runs a tea stall at the same place, which is adjacent to the hotel of the accused. The Prosecutor cross-examined DW-1 Om Praksah, to which he stated that he did not info....
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....ey 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 decision did not lay down any universal or inflexible rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such rule can be laid down; for the value of the testimony of a witness depend on diverse factors, such, as the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinized with care and there may be cases, as in Shiv Bahadur Singh's case (Shiv Bahadur Singh v. State of Vindhya Prasad, 1954 SCR 1098) where the Court will as a matter of prudence look for independent corroboration. It is wrong, however to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is availabl....
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....2, 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 such a violation and evaluate the evidence on record keeping that in view." In Kalpnath Rai v. State, (1997) 8 SCC 732, Supreme Court, while dealing with a case under Terrorist and Disruptive Activities (Prevention) Act, 1987, observed, "90. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined..." In State of Punjab v. Partap Singh, 2004 Drugs cases (Narcotics) 104, Supreme Court, in its order, observed, ....
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.... 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, "4....It is true that no independent witness had been involved and no attempt had been made in that direction. However, keeping in mind that the seizure had been effected at about 5:30a.m. and was the outcome of a sudden meeting between the police party and the appellant, it was difficult to get an independent witness. In any case, we find that Sub Inspector Jaspal Singh, PW 3 SI Kirpal Singh, P.W. 7, DSP Bhulla Singh and several others had also been present at the time of the incident and all have supported the seizure that had taken place. Even assuming that SI Jaspal Singh bore some animosity the possibility of false implication has been dispelled by the presence of the other police officers particularly DSP Bhulla Singh." In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, Supreme Court observed, "3. ...According to the prosecution, on 27.06.2004, at about 5.00 p.m., a specia....
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....ust 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: Tahir v. Delhi). 5) Value of the testimony of a witness depends on diverse factors, such, as the character of the witness, to what extent and in what manner he was interested and how he fared in crossexamination etc. (Ref: Basawan v. Bihar). 6) In the absence of independent witnesses, the presence of gazetted officer of the police, at the time of the search, would dispel the possibility of false implication. (Ref: Surjit Singh v. Punjab). 7) Absence of independent witness during the police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. (Ref: Kalpnath Rai). 8....
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...., 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 have proved the presence of the police party at the spot and the seizure at the place. Despite having a phone, none of the police officers tried to call someone at the spot, to corroborate the presence of the accused, police, and the recovery of the contraband from the spot. In this case, there is a total failure of the Investigating Officer to make an effort to associate independent witnesses. The Investigating Officer was working under the notion that there is no requirement of law to associate any independent witness. It was morning time. Allegedly the time was 6.30 a.m., and the investigation had continued for about 4½ hours. So it means that by the time the investigation concluded it would have been 11 a.m. Therefore, despite the fact that the day had broken and the people were crossing the spot, he did not ....
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....tatutory 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, for example where it appears that Parliament really intended it or the literal meaning is too strong." The learned author has referred to Sheffield City Council vs. Yorkshire Water Services Ltd., (1991) 1 WLR 58 at p. 71, where it was held as under: "Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the Court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by Judges in developing the common law. '.....the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the Courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of soc....
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....nt 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 Dass (PW-14), Constable Vinod Kumar (PW-2) and Constable Jitender Kumar had left the police station for detection of crime. The Superintendent of Police, District Mandi, had directed them to do so. In the daily diary register of police line Mandi, the concerned person recorded the fact of the departure of the police team. The prosecutor proved this fact by tendering in evidence the extracts of the register as Ext. PW-11/A. This departure report is silent about the fact that the team had carried the investigation kit along with them. PW-1 Tek Chand, who had joined the police team, at a later point of time, also did not state that he had carried the investigation kit. In the absence of the earliest evidence of the police party carrying weights and scale, it would be doubtful to believe the version of the police. None of the ....
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....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 the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked."... ... In Bansidhar Mohanty v. State of Orissa, AIR 1955 SC 585, a four member bench of Supreme Court holds, 5. ...We do not think it is any part of the duty of the defence advocate to fill up the lacunae in the evidence adduced by the prosecution. STEP 7: Handing over of the seal to some independent witness- The search memo (Ext. PW-1/D) mentions that the Investigating Officer, HC- Lakshman Dass (PW-14) handed over the seal after its use to HC Tek Chand (PW-1). The Special Report (Ext. PW-7/A) also corroborates this fact. During the trial, HC Tek Chand (PW-1) states that he had received the seal. HC Tek Chand produced the seal which was a 'metal cube' having impressio....
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....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 him over the Special Report (Ext. PW-7/A) on 29.7.2008 at 12.40 p.m. He further testified that he had entered the receipt of such Special Report at Sr. No. 115 of the concerned register (Ext. PW-7/B). The prosecution did not examine Sh. Raj Kumar Chandel, SDPO; however, they tendered his statement by way of an affidavit, Ext.PW-6/A. From the bare perusal of the Special Report (Ext. PW-7/A), it appears that the same bear the signatures of ASI Mohan Lal. However, when ASI Mohan Lal entered into the witness box as PW-8, the prosecution did not prove this report through him. He is silent in his examination-in-chief as well as cross-examination about the special report. Therefore, the prosecution has failed to prove the Special Report (Ext. PW-7/A) as per Indian Evidence Act, 1872, hence, this fact is not tes....
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....wly 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 of seal D". Now the Investigating Officer is silent about the stitching part. Why this material contradiction has come is apparent from the fact that stitching would need a needle and thread, and it would also lead to the conclusion that nothing was done at the spot. At this stage, a doubt would arise in the mind of the reader that the SHO of the Police Station may have stitched this parcel during the process of resealing. Now ASI Mohan Lal (PW-8) was officiating as the SHO at that particular point of time. He stated on oath that the Investigating Officer HC Laxman Dass had brought before him one parcel sealed with six impressions of seal-D. He further says that he resealed the parcel with three impressions of seal- C in the presence of HC Tek Chand, MHC Gian Chand, and the Investigating Officer....
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....) 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 bags, it would be miscarriage of criminal justice to convict him of the offence keeping such strong doubt dispelled. Even so, it is for the accused to dispel any doubt in that regard. 22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the requir....
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....ed 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 to the statement under Section 313 CrPC, accused did not level any such allegations against any of the police officials. Therefore, it cannot be said that the police had falsely planted this kind of charas on the accused. But then it does not mean that the prosecution need not prove its case simply because such type of assumption would always be there in the mind of the Court. The quantity involved in this case is commercial quantity, which will provide a minimum ten years of imprisonment, without any remission. Law is settled that graver the punishment, the stricter is the proof and higher the obligation upon the prosecution to prove the charges. Supreme Court in State of Himachal Pradesh v. Trilok Chand & Anr, (2018) 2 SCC 352, holds, "13. ...It is im....