THE STATE OF HIMACHAL PRADESH versus PARDEEP KUMAR ETC. on 16 February 2018

656

SUPREME COURT REPORTS [2018] 2 S.C.R. 656

[2018] 2 S.C.R.

ATHE STATE OF HIMACHAL PRADESH

v.

PARDEEP KUMAR ETC.

(Criminal Appeal Nos. 276-277 of 2018)

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FEBRUARY 16, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Narcotics Drugs and Psychotropic Substances Act, 1985 –Cs.20 r/w. s.29 – Conviction under – Propriety of – On 27.01.2009 apolice party on patroling duty on National Highway 21 on Manali-Kullu road, signaled a car to stop – Vehicle stopped and a personallegedly fled away from the car, while accused-respondent nos.1and 2 were found sitting in the car – On search, rucksack containingcannabis mixture found from the car – Trial court convicted andDsentenced the accused for offences u/s. 20 r/w. s.29 – High Courtin appeal reversed the order of conviction on the ground thatprosecution did not discharge its burden of examining independentwitnesses in support of its case and that the contraband article wasproduced before trial court in a torn condition raising serious doubtEabout its authenticity – Held: Examination of independent witnessesis not an indispensable requirement and such non-examination isnot necessarily fatal to the prosecution case – In the present case,according to the prosecution, independent witnesses were notavailable to witness the recovery of contraband due to extreme cold– In absence of any animosity between the police party and theFaccused and having regard to the large quantity of contrabandthat was recovered (18.85 kgs.), it is unlikely that the contrabandwas planted/foisted in the vehicle of accused persons – Further,w.r.t. condition of the contraband parcel, the prosecution witnessesexamined in this regard testified that the parcel was in a torn conditionGdue to its bulky nature and also due to nails on the stool on whichit was kept – Order of High Court is set aside and that of trial courtconvicting and sentencing the accused-respondents, restored.

Evidence – Independent witnesses – Non-examination of –Discussed.H

Allowing the appeals, the Court

HELD: 1.1 Examination of independent witnesses is notan indispensable requirement and such non-examination is notnecessarily fatal to the prosecution case. In the present case,according to the prosecution, independent witnesses were notavailable to witness the recovery of the contraband due to extremecold. The fact that the incident took place at about 6.30 p.m. on27-01-2009 and that too on the Manali-Kulu road may lendcredence to the prosecution version of its inability to produceindependent witnesses. In the absence of any animosity betweenthe police party and the accused and having regard to the largequantity of contraband that was recovered (18.85 kgs.), it isunlikely that the contraband had been planted/foisted in thevehicle of the accused persons. In so far as the condition of thecontraband parcel is concerned, the materials on record indicatethat the said parcel was brought to the trial Court on 15-9-2009in a torn condition. The prosecution witnesses examined in thisregard had testified that the parcel was in a torn condition due toits bulky nature and also due to nails on the stool on which it waskept. In this regard, it may also be noted that the samples fromthe contraband parcel were sent to the Forensic Laboratory on23.7.2010. No suggestion was given to the witnesses (PWs 12and 13) who had taken the samples to the laboratory that thecontraband parcel had been tampered with. PW-16, who hadchemically examined the contraband samples, was fully cross-examined by the defence. There is nothing in his evidence tosuggest that the sample(s) came to him in a torn or otherwisedoubtful condition. The grounds on which the High Court hadreversed the findings of conviction of the accused-respondentsought not to be accepted. [Para 6][659-E-H; 660-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 276-277 of 2018.

From the Judgment and Order dated 02.04.2015 of the High Courtof Himachal Pradesh at Shimla in Cr. A. No. 179/2011 and Cr. A. No.180/2011 respectively.

D. K. Thakur, AAG, Varinder Kumar Sharma, Adv. for theAppellant.

Rabin Majumder, Ms. Antima Bazaz, Advs. for the Respondents.

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AThe Judgment of the Court was delivered byRANJAN GOGOI, J. 1. Leave granted.

2. These appeals are by the State of Himachal Pradesh challengingthe judgment of the High Court acquitting the accused-respondent Nos.1and 2 of the charge of commission of offences under Section 20 readBwith Section 29 of the Narcotics Drugs and Psychotropic SubstancesAct (hereinafter referred to as “NDPS Act”). The Judgment of acquittalby the High Court is in reversal of the conviction recorded by learnedtrial court which had imposed a sentence of rigorous imprisonment for12 years and fine of Rs.1,50,000/- on each of the accused. On defaultCof payment of the fine amount, it was ordered by the learned trial Courtthat the accused-respondents will suffer imprisonment for a further periodof one year.

3. The case of the prosecution in short is that on 27-1-2009 atabout 6.30 p.m. while a police party was on patrolling duty on NationalDHighway 21 on the Manali- Kullu road, a white colour Indica car wassignaled to stop. According to the prosecution, the vehicle stopped at adistance of about 25 feet away from the police party. One person isalleged to fled away from the car and the accused No.1 was foundsitting in the rear seat of the vehicle whereas the accused No.2 wasfound sitting in driver’s seat. The prosecution further alleges that theEaccused Nos.1 and 2 disclosed their names and had further stated thatthe person who fled away is one Rajbir Singh. It is the further case ofthe prosecution that prior to search of the vehicle, police constableswere sent to bring local witnesses but they did not succeed in bringingany witnesses as on account of the severe cold on the date of occurrence,Fno independent person was available. Thereafter, a search of the carwas conducted by the police party and a rucksack was found lying nearthe legs of accused No.2 which was found to contain cannabis mixtureweighing about 18.85 kgs. According to the prosecution two samples ofabout 25 grams each were taken from the contraband recovered andthe samples were separated and sealed. Both the accused Nos.1 and 2Gwere arrested and on the next day accused No.3 was also arrested.During interrogation, the accused persons had named one Jeewan Lalas the person from whom they had purchased the contraband. Thehouse of Jeewan Lal was searched on 29.11.2009 and an electronicweighing machine, envelopes containing small particles of cannabis and H

other such materials were recovered. Accordingly, Jeewan Lal (accusedNo.4) was arrested. Charges were framed against all the four accusedwho were sent for trial. At the conclusion of the trial, the learned trialcourt while convicting and sentencing the accused Nos.1 and 2, asaforesaid, acquitted the other accused Nos.3 and 4.

4. Aggrieved, the accused-respondents had filed appeals beforethe High Court.

5. The High Court, as it appears from the impugned judgment,took the view that the prosecution had not discharged its burden ofexamining independent witnesses in support of its case inasmuch asthere was a bazaar situated at a distance of about 100 meters and furtherthe place where the contraband was allegedly detected and seized wason the Manali-Kullu Road which is a busy road with many buses andvehicles plying on the same. The High Court also took the view that thecontraband article was produced before the learned trial court in a torncondition which raised serious doubts as to its origin and authenticity.On the basis of the aforesaid twin findings, the appeal was allowed andthe order of conviction of the accused-respondents was reversed.

6. We have considered the matter and have heard the learnedcounsels for the parties. So far as examination of independent witnessesin support of the prosecution case is concerned all that would benecessary to say in this regard is that examination of independentwitnesses is not an indispensable requirement and such non-examinationis not necessarily fatal to the prosecution case. In the present case,according to the prosecution, independent witnesses were not availableto witness the recovery of the contraband due to extreme cold. Thefact that the incident took place at about 6.30 p.m. on 27-01-2009 andthat too on the Manali-Kulu road may lend credence to the prosecutionversion of its inability to produce independent witnesses. In the absenceof any animosity between the police party and the accused and havingregard to the large quantity of contraband that was recovered (18.85kgs.), we are of the view that it is unlikely that the contraband had beenplanted/foisted in the vehicle of the accused persons. In so far as thecondition of the contraband parcel is concerned, the materials on recordindicate that the said parcel was brought to the learned trial Court on 15-9-2009 in a torn condition. The prosecution witnesses examined in thisregard had testified that the parcel was in a torn condition due to its A

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Abulky nature and also due to nails on the stool on which it was kept. Inthis regard, it may also be noted that the samples from the contrabandparcel were sent to the Forensic Laboratory on 23.7.2010. No suggestionwas given to the witnesses (PWs 12 and 13) who had taken the samplesto the laboratory that the contraband parcel has been tampered with.PW-16, who had chemically examined the contraband samples, wasBfully cross-examined by the defence. There is nothing in his evidence tosuggest that the sample(s) came to him in a torn or otherwise doubtfulcondition. In view of all the above, we are of the opinion that the groundson which the High Court have reversed the findings of conviction of theaccused-respondents ought not to be accepted.

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7. We, therefore, for the aforementioned reasons, set aside theorder of the High Court acquitting the accused-respondents and restorethe order of the learned trial court convicting the accused-respondentsunder Section 20 read with Section 29 of the Narcotic Drugs andPsychotropic Substances Act, 1985. The sentence imposed by the learnedDtrial Court is also restored. The accused respondents shall surrenderforthwith to serve out the remaining part of the sentence failing whichthey will be taken into custody.

8. The appeals are allowed as indicated above.

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Divya Pandey

Appeals allowed.

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