State of Himachal Pradesh vs Surender Kumar

Sanjay Karol, J.—Assailing the judgment dated 22.05.2009, passed by Special Judge, Bilaspur, H.P., in N.D.P.S. Case No. 2 of 2006, titled as State Versus Surender Kumar, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 03.02.2005, Inspector Manoj Kumar (PW.9) alongwith Head Constable Jag Pal, Constable Jagat Pal, Shyam Lal, Raj Kumar (PW.1), Sanjiv Kumar (PW.7) and Parkash Chand, was on patrol duty. At about 3.15 P.M. near Chharol, seeing the police party, accused got perplexed and tried to flee away. Same time, independent witnesses Surender Pal (PW.5) and Jai Pal (PW.6) reached the spot in a vehicle. Accused was apprehended and independent witnesses Yusuf Khan (PW.4), Surender Pal and Jai Pal were associated for carrying out the search and seizure operations. Accused gave his consent vide memo (Ex.PW.7/A) and in the presence of independent witnesses was searched. He was carrying a packet hidden under his armpit, from which opium was recovered. Upon weighment, it was found to be 450 grams. Two samples of 25 grams each were drawn and sealed with a seal of seal impression ''J''. They were marked as A-1 and A-2. Remaining bulk parcel was sealed with the very same seal and taken into possession vide memo (Ex.PW.7/D). NCB forms in triplicate were filled up. Special report (Ex.PW.2/A) was sent to the superior Officer. Rukka (Ex.PW.9/B) was sent through Constable Raj Kumar (PW.1) on the basis of which FIR No. 61/05 dated 03.02.2005 (Ex.PW.10/A) was registered at Police Station, Sadar, Bilaspur, H.P., under the provisions of Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Accused was arrested on the spot. Contraband substance was deposited with MHC Lalit Kumar (PW.11), who sent the sample for chemical analysis to the CTL, Kandaghat, through Constable Raj Kumar vide Road Certificate (Ex.PW.1/A). Reports of the Chemical Analyst (Ex.P-A and P-B) were taken on record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

The 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, in all, prosecution examined as many as eleven witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard Mr. Ashok Chaudhary, learned Addl. AG., assisted by Mr. Vikram Thakur, learned Dy. AG., and Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. T.S. Chauhan, 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 the 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 witnesses Yusuf Khan (PW.4), Surender Pal (PW.5) and Jai Pal (PW.6) have not supported the prosecution case at all. In one voice, they have deposed that police did not recover the contraband substance from the conscious possession of the accused in their presence. They were declared hostile and extensively cross-examined, yet nothing fruitful could be elicited from their testimony. These witnesses are truck drivers and according to them police obtained their signatures without letting them know contents of the documents.

Prosecution version of having recovered the contraband substance from the conscious possession of the accused in the presence of independent witnesses, thus stands falsified. Thus view other than the one which prosecution wants us to believe has emerged on record.

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 eye-witness 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, ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; 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."

Sanjiv Kumar (PW.7) states that seeing the police party accused tried to flee away. He slightly suspected the accused to have carried the contraband substance and as such associated independent witnesses. Now in the instant case, he did not inform the accused of his valuable right as is so mandatorily required under Section 50 of the NDPS Act. After all contraband substance was recovered from the person i.e. armpit of the accused. The officer had strong suspicion of the accused carrying the contraband substance. This is thus fatal to the prosecution case.

A Constitution Bench of the Apex Court in State of Punjab Vs. Baldev Singh, etc. etc., , has clearly held that accused has a right to be made aware of his right of getting 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 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., after taking note of judgments held that not only consent of the accused should be taken but he must also be informed of his right of getting 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 consent memo does not record that accused was informed of his right of being searched before a Magistrate or a Gazetted Officer, search is not in conformity with Section 50 of the Act.

In Ashok Kumar Sharma Vs. State of Rajasthan, , the apex Court held as under:

"8. We may, in this connection, also examine the general maxim "ignorantia juris non excusat" and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure."

[Also see: Vijaysinh Chandubha Jadeja Vs. State of Gujarat, ; and Myla Venkateswarlu Vs. The State of Andhra Pradesh,

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

That apart, we do not find version of Sanjiv Kumar (PW.7) of having left Police Station, Sadar, Bilaspur, on patrol duty to be inspiring in confidence. Witness admits that he left the Police Station at 1.30 PM. Now accused was apprehended at Chharol at 3.45 PM, which is at a distance of 22 kms from the Police Station. There is nothing on record to establish that police party left in a Government vehicle and that too in connection with patrol duty. Presence of police party on the spot is rendered doubtful from the testimony of the witness as according to him, he does not remember the exact location of the accused on the spot. He does not know whether accused was on the left side of the vehicle or as to whether accused was coming from Bilaspur side or not.

Further we find that there is contradiction in the testimony of police officials. According to PW.9 it took them time to reach Chharol for they checked the vehicle on the way, which version stands belied by Sanjiv Kumar (PW.7), according to whom, no vehicle was checked but delay in covering the distance to Chharol was on account of unfitness of the vehicle, which in fact is not the prosecution case.

Further according to PW.9, case property was deposited in the Malkhana at 8.30 PM, whereas, according to MHC Lalit Kumar (PW.11) it was so done at 11/12 PM (night). Version of Manoj Kumar that recovery was also effected in the presence of police officials stands contradicted by Constable Raj Kumar (PW.1), according to whom, no person was either caught or searched in his presence. Significantly this witness states that he was informed by MHC Lalit Kumar (PW.11) that sample contained opium. Now how was MHC aware of such fact as sample was yet required to be analyzed by the Chemical Analyst. Thus, possibility of sample being tampered with cannot be ruled out in the instant case. The contradictions appear to be minor but stands magnified when we further examine the testimony of the MHC, according to whom number of NCB forms was not entered in the Malkhana register. Also there is overwriting in the road certificate (Ex.PW.1/A). Neither time of sending sample to CTL, Kandaghat, stands entered nor the seal with which sample was sealed proved on record. Testimonies of the police officials are materially contradictory, rendering their version to be unbelievable and the witnesses to be unreliable and not trustworthy.

We do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to recovery of contraband substance from the conscious possession of the accused. Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused person 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., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.