State of Himachal Pradesh vs Tinku

Sanjay Karol, J.—We have perused the entire record of the trial Court, so made available by Mr. Kush Sharma, Deputy Advocate General, which stands returned.

In relation to FIR No. 9 of 2014, dated 27.01.2014 (Ex. PW.12/A), registered at Police Station, Kheri, District Chamba, H.P., accused Tinku was charged to face trial for having committed offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Allegedly 900 grams of charas (contraband substance) was recovered from the conscious possession of the accused.

In crux, it is the case of prosecution that on 27.01.2014, police party headed by Inspector Jagdish Chand (PW.13) comprising of Daulat Ram (PW.3), Shakti Singh (PW.5), Tilak Raj (PW.6) and Kewal Kumar (not examined) had laid a Naka at a place commonly known as Dralka Rain Shelter. At about 9.15 AM, they noticed the accused trying to flee away. Suspecting that he may be carrying some contraband substance, he was apprehended and after associating two independent witnesses Meer Chand (PW.1) and Tara Chand (PW.2), accused was searched. Prior thereto, he was informed of his statutory right, but agreed to be searched by the police party present on the spot. From the pocket of the jacket worn by the accused one packet containing charas was recovered, which upon weighment was found to be 900 grams. The same was sealed with nine seals of having impression ''SK'' and taken into possession vide memo (Ex. PW.2/C). NCB forms in triplicate were filled up. Shakti Singh (PW.5) took Rukka (Ex. PW.11/B) to the Police Station, on the basis of which FIR No. 9 of 2014, dated 27.01.2014, was registered under the provisions of Section 20 of the NDPS Act. The case property was entrusted to MHC Daleep Kumar (PW.9), who sent the same for chemical analysis to the Forensic Science Laboratory and report (Ex. PW.13/D) 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.

In order to establish its case, in all, prosecution examined as many as thirteen witnesses.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused vide judgment dated 14.08.2015, passed in Sessions Trial No. 15 of 2014, titled as State of Himachal Pradesh Versus Tinku. Hence the present leave to appeal filed by the State under the provisions of Section 378(3) of the Code of Criminal Procedure.

Having heard Mr. Kush Sharma, learned Deputy Advocate General and Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State, 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 - Sheo Swarup and Others vs. The King-EmperorAIR 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."

Significantly in the instant case, one of the independent witnesses Meer Chand (PW.1) has not supported the prosecution case and despite extensive cross-examination nothing fruitful could be elicited from his testimony. Whereas, Tara Chand (PW.2), who though was not declared hostile, but has also not supported the prosecution as he has deposed that in his presence no consent of the accused was obtained prior to conduct of the search. In this view of the matter, two versions with regard to the manner in which prosecution carried out search and seizure operations have emerged on record, which definitely renders the prosecution story to be doubtful.

It is also well established principle of law that (i) the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) and Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) .

In Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , the Privy Council held that:

"...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...."

In Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , the apex Court observed as under:

"(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

In Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court''s decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court''s conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court''s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court; and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that "Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court''s acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference."

(Emphasis supplied).

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: Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760 ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; and Aher Raja Khima v. State of Saurashtra, AIR 1956]."

Apex Court in Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , 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."

Inspector Jagdish Chand (PW.13), who nabbed the accused in no uncertain terms states that police party had prior information about the accused being possessed with contraband substance. Now if this were so, then what prevented the police to comply with the statutory provisions of Section 42 of the NDPS Act.

Matter does not end here. The prosecution version is rendered to be doubtful further from the admissions made by the witnesses that only after the recovery of the contraband substance documents stood prepared on the spot. In fact, Inspector Jagdish Chand (PW.13) goes to state that accused was not informed of his statutory right in writing, but it was so done orally.

In this view of the matter, we find the prosecution to have violated the statutory provisions inasmuch as neither there is compliance of Section 42 of the NDPS Act nor is there effective compliance of Section 50 of the NDPS Act. It is the case of prosecution that contraband substance was recovered from the person of the accused and it is not a case of chance recovery.

A Constitution Bench of the Apex Court in State of Punjab versus Baldev Singh, 1999(6) SCC 172, 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 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 accused must be told of his right to be searched before a gazetted officer or a Magistrate.

Thereafter, the Apex Court in Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) 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 Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , 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: Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) (Constitution Bench); and Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council)

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.

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 police officials are glaring, material and relevant, totally shaking the edifice of prosecution story. Witnesses are unreliable and their testimonies not free from embellishments/contradictions/variations.

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 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 Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , 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 leave to appeal, being devoid of merit, is dismissed, so also the pending application(s), if any.