State of Himachal Pradesh vs Sanjay Kumar

Sanjay Karol, J.—State has appealed against the judgment dated 22.2.2008 of the learned Special Judge, Fast Track Court, Mandi, Himachal Pradesh, passed in Sessions Trial No. 5/2006, titled as State of Himachal Pradesh v. Sanjay Kumar, challenging the acquittal of respondent Sanjay Kumar (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

It is the case of prosecution that on 22.10.2005, police party, consisting of HC Ram Lal (PW-8), Constable Whether reporters of the local papers may be allowed to see the judgment? Tara Chand (PW-1) and Constable Sant Ram (PW-13), was on patrol duty. At 5.15 p.m., when they reached near Skodhi Bridge (Mandi), they saw the accused fleeing away. On suspicion, he was apprehended after covering certain distance. Independent witness Sushil Kumar (PW-7), who arrived on the spot, was associated by Ram Lal (PW-8). Accused was searched. From the jacket worn by the accused, one envelope containing Charas in the form of sticks was recovered. The same was weighed and found to be 400 grams. Two samples (A-1 and A-2), each weighing 25 grams, were drawn. Samples as also bulk parcel were sealed with seal impression ''T''. NCB form (Ex. PW-8/A), in triplicate, was filled up; seal was handed over to Sushil Kumar (PW-7). On the basis of Rukka (Ex. PW-8/B) sent through Constable Sant Ram (PW-13), FIR No. 392, dated 22.10.2005 (Ex. PW-9/B), under the provisions of Section 20 of the NDPS Act, was registered at Police Station, Sadar, District Mandi, Himachal Pradesh. Accused was arrested on the spot vide Memo (Ex. PW-1/D). His wife, as per his desire, was informed about the same. Special Report (Ex. PW-6/A) was sent to the Superintendent of Police, Mandi, which was received by Man Singh (PW-6). Ram Lal handed over the case property, including the samples, to SHO Naresh Kumar (PW-9), who resealed the same with his seal impression ''H'' and deposited the same with MHC Nand Lal (PW-5), who made entries in the Malkhana Register. One of the samples was sent through Constable Mehar Chand (PW-4) to Forensic Science Laboratory (FSL), Junga. Report (Ex. PX) of the Chemical Examiner was obtained by the police, which revealed the contraband substance to be Charas. 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 20 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 13 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 a plea that witnesses, who are police officials, have deposed falsely to show progress in the NDPS cases.

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. G.R. Palsara, 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, the only independent witness, namely Sushil Kumar (PW-7) 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 Vs. The State of Saurashtra, ].

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.

It has come in the testimony of Ram Lal (PW-8) that on the basis of suspicion, after associating independent witness Sushil Kumar (PW-7), he searched the accused. The contraband substance was allegedly recovered from the person (body) of the accused, who had allegedly hid the envelope under the jacket worn by him. Now, no notice prior to effecting any recovery was ever issued to the accused. It is not a case of chance recovery, for police official had suspicion and in fact associated an independent witness for carrying out search and seizure operations. In our considered view, mandatory provisions of Section 50 of the NDPS Act stand violated.

On this point, we find police officials to have given different versions. Ram Lal (PW-8), who is the Investigating Officer, is silent of having issued any prior notice, informing the accused of his rights. But however, Tara Chand (PW-1) categorically states that prior to carrying out search operation, the Investigating Officer had informed the accused of such rights and had also drawn memo (Fard) in this regard. Now, if this were so, then why is it that prosecution has not placed on record complete material. Presumption under the provisions of Section 114 of the Evidence Act can safely be drawn against the prosecution in this regard. We may not be misunderstood to have accepted the version of PW-1 on this issue, but we find his version is also not supported by Sant Ram (Pw-13).

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 Vs. State of Gujarat, 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 Vs. State of H.P., 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 Section 50 of the Act.

From the conjoint reading of testimonies of Tara Chand (PW-1), Ram Lal (PW-8) and Sant Ram (PW-13), we find that there are major contradictions, improvements and improbabilities, rendering the prosecution case to be absolutely doubtful if not false. The witnesses are not truthful.

We find the version of Ram Lal (PW-8) and Naresh Kumar (PW-9) that only Sant Ram (PW-13) took Rukka to the Police Station and case property stood entrusted by Ram Lal to SHO Naresh Kumar to have been materially contradicted by Tara Chand (PW-1), according to whom, it was Sant Ram who took the Rukka alongwith the case property and the NCB form to the police at about 5.30 p.m. Now, if this were so, then version of PW-8 that he filled up the NCB form on the spot as also the version of Sant Ram that he took the case file after registration of the FIR to the spot to have been contradicted.

Ram Lal admits that spot map, depicting the place of occurrence, is contrary to what stands deposed in Court. Tara Chand (PW-1) admits that shops were open at the place where accused was apprehended, yet such fact is not depicted in the spot map. This witness does not remember that Sushil Kumar (PW-7) is a stock witness and had testified in favour of the police in several cases, which version stands belied by PW-7 himself. Further, he admits that on the NCB form (Ex. PW-8/A) there is overwriting. Date 12.10.05 has been changed. Figure ''12'' has been overwritten to read as ''22''. There is no explanation for the same.

Even on the point of link evidence, we find the prosecution case to be absolutely weak. Except for a brief period, when Makhan Singh (PW-2) was handling charge of MHC, it was Nand Lal (PW-5), who remained regularly posted as MHC in the Police Station. Sample for depositing the same at the Laboratory was taken by Gauri Dutt (PW-3) and Mehar Chand (PW-4). We find that first the sample was taken to Chandigarh, where it was not accepted and eventually deposited at FSL, Junga. We find that there is no entry in the Road Certificate with regard to the dates when samples were drawn and deposited in the Malkhana or with the FSL. We also find version of the witnesses that objections were raised by the officials at the Laboratory and as such sample could not be deposited, not to have been supported by any documentary evidence. There is no explanation for the samples remaining in the hands of these officials for considerable period of time. What transpired between 23.10.2005 and 13.12.2005, when sample was sent for analysis, has not been explained by the prosecution. We also find that on the sample there are ten seal impressions, out of which only four (two each of seal impression ''T'' and ''H'') were intact. There is cutting on the Road Certificate, which also remains unexplained.

There is yet another unexplained circumstance, which Ram Lal has failed to establish. From where did he bring the scale and weights for weighing the contraband substance, has not been stated, for it is not the case of any of the prosecution witnesses that they had brought the scales and thereafter the contraband substance was weighed.

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 Charas.

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.