TaxTMI 
TaxTMI 
2019 (10) TMI 9
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....dingly, 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 Supreme Court remanding back the matter to this Court, the Convict ....
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....sons 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 substance in the shape of sticks and spheres. The Investigating Officer (PW-14) smelled the content and based on hi....
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....ong 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 report mentions of conducting various scientific experiments, physical tests, chemical, and chromatographic tests, indicating the presence of cannabinol, including the presence of te....
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....e 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- Another aspect of the case is how the investigating team reached the spot. To this effect, the learned defence counsel, during the trial, had focused his entire efforts to challenge the travel of the po....
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....rson. 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 the Investigating Officer to call for an independent witness. Another spot witness Constable Vinod Kumar (PW-2) also did not utter a word in his examination-in-chief about the absence of people on the ....
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....olice 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 non-availability of the witnesses because it was not possible in the facts and circumstances of the situation, and because it was a case of chance recovery. The learned Special Judge did not notice the fact that....
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....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 inform any person that police had taken the accused. He says that the police officials who had taken the accused had two stars and one was having no star. The witness further admits that Jagdish was his classmate and h....
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....nce. 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 available." In Masalti v. The state of U.P., AIR 1965 SC 202, a four member bench of Supreme Court, holds, "14. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or intereste....
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....hould 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, "2. ... We also noticed the fact that the investigating agency has not associated any independent witnesses even though they were available in the nearby vicinity. On facts of this case this by itself is a good ground to reject the appeal. The appeal f....
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.... 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 special barricading was set up by the police party at Basantpur Bus Stand, Patiala. At that time, the police party signaled to stop a silver colour Indica Car bearing No. DL-7CC-0654 which was coming from the side of Rajpura. The driver of the said car (appellant herein), accompanied with o....
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....ef: 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) In case of proven evidence that an attempt was made to join person from public at the time of search but none was available, then in such a factual matrix, mere absence of independent witness at the time of search and seizure will not render the case of the prosecution unreliable. (Ref: Dharampal Singh v. State of Punjab) 9) Since the....
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.... 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 make any effort to associate an independent witness. Such conduct might lead to a possible inference that no search, seizure, and investigation took place at the spot. STEP 5: Option under Section 50 of NDPS Act- The police claimed that they recovered chars from the bag held by the accused in his hand. Since the police did not seize the charas from the person of the ....
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....mple 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 society." 19. While interpreting a provision in the Finance Act, 1972, Lord Denning in S.J. Grange Ltd. vs. Customs and Excise Commissioners, (1979) 2 All ER 91, observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. ... 26. The Constitution Bench decision in Pooran Mal vs. Director of Inspe....
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....itender 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 police officials state that they had taken the investigation kit from the police station. It renders the prosecution story of having weighed and sealed the substance on the spot, to be extremely doubtful, if not false. The burden is always upon the prosecution to prove its case, and it shifts to the accused under Sections 35 and 54 of the NDPS Act only when the prosecution had discharged its initial burden. In the ab....
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....nciples 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 impressions B, C, O, D, V, and F embossed on its six sides. The defence did not rebut the comparison of this seal with the seal impression over the parcel. Therefore, the link evidence to the effect that PW-1 Tek Chand had taken possession of the seal, after its use, is proved. STEP 8: Handing over the further investigation to some other investigating officer- This rule of caution is applicable only in the cases of chance recovery and in those cases of pr....
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....her 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 tested, and this Court cannot place any reliance on it. However, the provisions of Section 57 of the NDPS Act are directory and not mandatory. Even otherwise it appears to be an unintentional omission by the Public Prosecutor, and it would have no bearing on the merits of the case. In Varinder Kumar v. State of Himachal Pradesh, 2019 (1) RCR (Criminal) 1003, a three member bench of Supreme Court observed, 7. ...Sections 52 and 57 of NDPS Act being directo....
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.... 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 ASI Lakshman Dass. He did not say that he had stitched the parcel. The FSL report did not narrate that the laboratory, while returning the parcel, had stitched one side of the parcel. Resultantly, the prosecution failed to prove the link evidence. Thus the link in evidence is not complete that right from the stage of sealing until its reopening by the laboratory, the sealed parcel remained intact and untampered. Regarding the link evidence, the Special Judge observe....
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....h 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 required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence." 12. Learned Special Judge, pronounced the judgment of conviction on the following points: a) While repelling the contention of the learned defence counsel that by improvement of version of HC Tek Chand (PW-1) regarding chasing of the accused by the police officials, the trial Court relied upon the ....
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.... 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 imperative that the law the Court should follow for awarding conviction under the provisions of N.D.P.S. Act is "stringent the punishment stricter the proof." In such cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication...." In Noor Aga v. State of Punjab, 2008(16) SCC 417, Supreme Court observed, "16. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail,....