TaxTMI 
TaxTMI 
2022 (10) TMI 575
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.... Station House Officer (SHO for short) of Chakarbhata Police Station received a secret information that the appellant and his friend Reena Das, were carrying ganja in the dickey of a car bearing registration no.CG-04HA-4850 and were travelling from Raipur to Pendra Road; that the SHO recorded this information in Rojnamcha Sanha, prepared Mukhbir Suchana, forwarded the said information to the higher officer, proceeded to the spot, stopped the car, served a notice under Section 50 of the Act, conducted a search and found 47.370 Kgs. of ganja kept in three bags in the dickey of the car; that after weighing the contraband and preparing Panchnama, the SHO collected samples from each of the three bags, sent them to Forensic Science Laboratory ('FSL' for short) and after receipt of the Report, filed a charge-sheet against the appellant as well as his friend Reena Das for an offence punishable under Section 20(b) of the Act. 4. The prosecution examined seven witnesses. Two independent witnesses were examined as court witnesses CWs 1 and 2. 5. By a judgment dated 10-5-2017, the Special Court convicted the appellant for the offence under Section 20(b)(ii)(C) of the Act, and impos....
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....t of PW-7 with regard to the compliance of the requirements of Sections 42 and 57 of the Act. Though an argument was raised before the High Court on behalf of the appellant that the samples sent to FSL were not part of the seized contraband, it was rejected by the High Court on the basis of the cogent testimony of PW-7. This is how the High Court confirmed the conviction of the appellant as well as the sentence imposed upon him. 12. Assailing the concurrent judgments of the Special Court and the High Court, it was contended by the learned counsel for the appellant, (i) that the informant and the I.O. happened to be the same person; (ii) that the independent witnesses namely CW-1 and CW-2 did not support the case of the prosecution, thereby leaving the testimony of PW-7 uncorroborated; (iii) that when the appellant and the co-accused were alleged in the charge-sheet to be travelling in the same car from which ganja was seized, the acquittal of one of them and the conviction of the other, on the basis of the very same testimony of PW-7 cannot be sustained; and (iv) that the principles laid down in a series of judgments of this Court have not been followed by the Special Court a....
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....d, to explain how he came into possession; * That as held by this Court in Mukesh Singh v. State (Narcotic Branch of Delhi) [(2020) 10 SCC 120], it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses; * That as held by this Court in Dharampal Singh v. State of Punjab [(2010) 9 SCC 608], lack of independent witness is not fatal to the case of the prosecution; * That by the same analogy it was held by this Court in Rizwan Khan v. State of Chhattisgarh [(2020) 9 SCC 627], that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act; * That the protection under Section 50 of the Act is available only to the search of the body of a person and not to the search of a vehicle or place, as held by this Court in State of Punjab v. Baljinder Singh and Ors. [(2019) 10 SCC 473]; * That since the recovery was made in this case from the boot of the car, Section 50 had no application and hence the acquittal of the co-accused was also of no consequence; * That the question whether the informant can be I.O. is no longer res integra in view of the decision of this Court in Muk....
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....the manner in which the witnesses were roped in. The relevant portion of the testimony (Chief Examination) of PW-7, where a reference is made to independent witnesses, is extracted as follows : "(5) I got the information on 31-5-2014 at 16.50 Hrs. from informant that the one silver colour Hyundai Verna Car having Registration No. C.G.-04-HA-4850 is silver, in which, Sanjeet Kumar Singh @ Munna Singh resident of Kabir Nagar, Raipur and his lady friend namely Reena Das @ Manali Das resident of Kabir Nagar, Raipur have left towards Pendra road from Raipur carrying huge quantity of cannabis in the truck (Dikki) of Car for the purpose of sale, who would go via Pandidiha bypass Road. I lodge the above report at the Serial No. 1283 of Station Diary register maintained at Police Station. Today, I brought the Daily Register with me. The Serial No. 1283 entered in the Daily Register is Exhibit P-12 and its certified copy is Exhibit P-12 "C: I prepared the memo (Panchnama) of the information of informant in the presences of witnesses Virender Kumar Sahu and Baldev Singh Rajput. The memo (Panchnama) of the information of informant is Exhibit P-13 and I had my signatures on A to A parts.....
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....kes the time to search for and reaching to witnesses. The witness was silent, when the question asked that at what time the independent witnesses were presented. It is incorrect to say that on the memo of the information received from the informant, I had took the signatures of respective signatures of witnesses after returning to Police Station from the place of the occurrence of incident. xx       xx       xx (29) I get the contraband substances identified by the witnesses. It is correct to say that I have not mentioned that contraband substances identified by the witnesses in memo of identification Exhibit C-7. xx       xx       xx (38) It is also incorrect to say that the witnesses used to frequently visit at Police Station. Today, I cannot recall that on the date of occurrence of incident, the witnesses namely Sunil Maldhani and Firtu Banware had visited to the Police Station in relation of their own some dispute. It is also incorrect to say that I get the signatures on the documents of above both witnesses at Police Stat....
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..... xx       xx       xx 7. It is incorrect to say that Weighment Panchnama was done in my presence. It is incorrect to say that Ganja recovered from accused was weighed in my presence and in the presence of Sunil Malghani and at that time 20 kilo 370 grams in one bag, 20 kilogram in second bag and 07 kilogram in third bag was found." 22. The relevant portion of the evidence of Shri Sunil Kumar Malghani, examined as CW-2 reads as follows : "1. I do not know accused persons present here in the Court. In the Year 2014 I was Counsellor of Ward number 7 of Bodri Nagar Panchayat. Two and half year ago I and Firturam Banware went to Police-station Chakarbhata. We went there for compromise for the dispute between our people. Police took our signature on 4-5 documents. No proceedings were done by Police in my presence. Police did not caught any articles from the accused persons in my presence. Police did not gave me any notice. 2. Part A to A of notice under Section 160 of the Cr.P.C. vide Ex.P/14 bears my signature. Part B to B of C.2, C.3, C.4, C.5, C.6, C.7, C.8, C.9, C.10, C.11, C.12, C.13 ....
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....p with a plausible explanation as to how their signatures found place in the documents mentioned by PW-7. According to both the independent witnesses they went to the police station in connection with some other dispute relating to the members of the Sindhi community. These 2 witnesses claimed to be elected counsellors of the local Panchayat and this claim was not challenged by the Additional Public Prosecutor in cross examination. Therefore, the case on hand is not a routine, run-of-the-mill matter where independent witnesses are won over and they had no explanation to offer about their signatures in the Panchanama. 26. The statement of these two independent witnesses assumes significance in the light of certain other facts also. They are :- * According to PW-7, he received information from one Mukhbir at 16:50 hrs. on 31-5-2014; * PW-7 claims that upon receipt of information, he prepared Exhibit P-5 and completed the other formalities. Thereafter PW-7 sent notices to the independent witnesses at 17:10 hrs.; * PW-7 further claims that he departed to the place of incident at 17:10 hrs, from the Police Station and that the distance between the place of incident and the P....
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.... searched by the police officer. This Panchnama contains the names of Sunil Malghani and Firuturam Banware (CWs 1 and 2). Even the search Panchnama of the accused marked as Exhibit C-4 refers to the presence of CWs 1 and 2 at the time of search. 31. Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents. 32. In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case. 33. Right from the beginning, the co-accused Reena Das (A-2) was implicated at every stage. Admittedly, the information received by PW-7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellant as well as the co-accused Reena Das. But for some strange reason, PW-7 chose to serve a notice under Section 50 of the Act only on the appellant and not on the co-accuse....