State of Himachal Pradesh vs Rajiv Kumar

Sanjay Karol J.

State has appealed against the judgment dated 31.3.2009 of the learned Special Judge, Fast Track Court, Una, Himachal Pradesh, passed in Sessions Case No. 11/08, titled as State v. Rajiv Kumar, challenging the acquittal of respondent Rajiv Kumar (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

It is the case of prosecution that police party, consisting of HC Sanjay Kumar (Pw-1), Constable Gopal Singh (PW-2), Constable Satpal Singh (PW-3), headed by SI Jugal Kishore (PW-13), while on patrol duty saw accused trying to flee away at a place near Churru. On suspicion, he was apprehended. Suspecting the accused to be in possession of illegal arms and narcotic substance, after associating independent witnesses Sarwan Kumar (Pw-4) and Rachhpal Dev (not examined), he was searched. From the rain coat worn by the accused, one packet containing opium was recovered. It was weighed and found to be 800 grams. Two samples, each weighing 25 grams were separated. Samples and bulk parcel were sealed with seal impression ''J''. On the basis of Ruka (Ex. PW-13/B), sent through Constable Gopal Singh (Pw-2), FIR No. 147 dated 7.7.2008 (Ex. PW-8/A), under the provisions of Section 20 of the NDPS Act, was registered at Police Station, Amb. Contraband substance was taken into possession vide Memo (Ex. PW-1/B); NCB form (Ex. PW-13/A), in triplicate, was filled up on the spot. On suspicion, cow-shed of the accused in village Takarla was also searched from where two polythene envelopes, each containing 1 kg opium, were recovered. Two samples, each weighing 25 grams, were drawn from each of the envelopes, and sealed with seal impression ''T''. With the completion of investigation on the spot, SI Jugal Kishore (PW-13) handed over the case property to ASI Ram Swaroop (PW-8), who handed it over to MHC Kusha Dutt (PW-12). Entry was made in the Malkhana Register. Sealed sample was sent to the Forensic Science Laboratory through Constable Jagan Nath (PW-6) and report (Ex. PW-13/H) taken on record. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 18 of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 14 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took up plea of innocence and false implication due to a quarrel with police officials.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar, learned Additional Advocate General, on behalf of the State as also Mr. Subhash Sharma, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in- AIR 1934 227 (Privy Council) , in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

In the instant case, independent witness, namely Sarwan Kumar (PW-4) has not supported the prosecution case. He was declared hostile and extensively cross-examined, but nothing fruitful could be elicited from his testimony.

It is a settled proposition of law that merely because a witness has turned hostile, his entire evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy.

It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.

It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.

Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction.

[See: Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, ; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ; and Aher Raja Khima v. State of Saurashtra, AIR 1956].

Apex Court in Tahir Vs. State (Delhi), , dealing with a similar question, held as under:-

"6.....In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot.

We find testimonies of HC Sanjay Kumar (PW-1), Constable Gopal Singh (PW-2), Constable Satpal Singh (PW-3) and SI Jugal Kisore (PW-13), the spot witnesses, not to be inspiring in confidence at all. There are material contradictions, variations, discrepancies and exaggerations. According to Jugal Kishore, he entrusted the case property to MHC Kusha Dutt (PW-12). This version of his stands materially belied and contradicted by ASI Ram Swaroop (PW-8) and MHC Kusha Dutt, according to whom case property was entrusted by Jugal Kishore to ASI/SHO Ram Swaroop (PW-8), who resealed the same with his seal impression ''S'' and then handed it over to the MHC (PW-12). Entry was made in the Malkhana Register.

Version of SI Jugal Kishore (PW-13) that accused was searched on the basis of suspicion of carrying Narcotic substance or illegal arms, is also not supported by Sanjay Kumar (PW-1), Gopal Singh (PW-2) and Satpal Singh (PW-3). This renders the prosecution case to be further doubtful and in fact fatal, as according to Satpal Singh, no notice as is mandatorily required under the provisions of Section 50 of the NDPS Act was ever served upon the accused, informing him of his statutory right of being searched by a Gazetted Officer or Magistrate.

A Constitution Bench of the Apex Court in State of Punjab Vs. Baldev Singh, etc. etc., , has clearly held that the accused has a right to be made aware of his right to get searched before a Magistrate or a Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda v. Arizona [ 384 US 436], the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search.

It was thereafter held as follows:

"57 On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused."

(emphasis supplied)

A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat 2007 (1) SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate.

Thereafter, the Apex Court in Man Bahadur Vs. State of H.P., again followed the aforesaid judgments and held that not only the consent of the accused should be taken but the accused must also be informed of his right to get himself searched in the presence of the Magistrate.

This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if the consent memo does not show that the accused was informed that he had a right to be searched before a Magistrate or a Gazetted Officer the search is not in conformity with Section 50 of the Act.

In view of the law laid down, the accused must be informed about his right also, and since this was admittedly not done, there is violation of mandatory provisions of Section 50 of the Act, rendering the prosecution case to be doubtful.

Also we find the trial Court to have succinctly dealt with the issue of recovery allegedly effected from the cow-shed of the accused in village Takarla. Para-16 of trial Court judgment is evidently clear and we see no reason to differ with the findings so recorded therein. We further find the mandatory provisions of the NDPS Act not to be complied with prior to carrying out search and seizure operations of the cow-shed of the accused.

The apex Court in State of Rajasthan Vs. Parmanand and Another, , while dealing with a case where both the person and the bag of the accused were searched and though nothing was recovered from the person, but the contraband substance was recovered from the bag, relying upon its earlier decision rendered in Dilip and Another Vs. State of M.P., , held that non-compliance of mandatory provisions of Section 50, even if no recovery was effected from the person, would be fatal to the prosecution case.

Also, in Gurjant Singh @ Janta Vs. State of Punjab, , the Court, in similar circumstances, observed as under:

"23. The aforesaid observations of the above Constitution Bench decision in Baldev Singh (supra) and the three Judge Bench decision in Pawan Kumar (supra), clearly highlight the legal requirement of compliance of Section 50 in its true spirit. It will have to be stated that such compliance of the requirement u/s 50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed u/s 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it.

Keeping the above principles in mind, when we examine the manner in which the trial Court dealt with the case of the prosecution as well as the defence pleaded, we find that the trial Court committed a serious flaw in holding that Sections 42 and 50 were not attracted to the case on hand, which we have found in the earlier paragraph was a total misreading of the provision as well as the decision relied upon by it. That apart, when admittedly Section 50 was invoked by offering the presence of a Gazetted officer or a Magistrate to the appellant and at the request of P.W. 6, P.W. 3, who was stated to be the D.S.P. at that point of time, was summoned and in whose presence the search and seizure was stated to have been made, the trial Court failed to appreciate whether such a search or seizure was really held in accordance with Sections 42 and 50 of the NDPS Act."

Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was found in conscious and exclusive possession of opium.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.