1. Recovery of commercial quantity of charas from a backpack during traffic check — Prosecution under Section 20, Narcotic Drugs and Psychotropic Substances Act. (Para 3 )
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2020 Supreme(SC) 628
SUPREME COURT OF INDIA
N.V. RAMANA, SURYA KANT, HRISHIKESH ROY, JJ.
Rajesh Dhiman - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Appeal No. 1032 of 2013
With
Gulshan Rana - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Appeal No. 1126 of 2019
Decided On : 26-10-2020
Advocates Appeared:
For the Appellant(s) :Saurabh Ajay Gupta, Nishant Bishnoi, Srishti Prabhakar, Hrishikesh S. Chitaley, Vijay Kari Singh, Rajat Joseph, Advocates
For the Respondent(s):Abhinav Mukerji, Bihu Sharma, Pratishtha Vij, Advocates
For the Appellant(s) :Saurabh Ajay Gupta, Nishant Bishnoi, Srishti Prabhakar, Hrishikesh S. Chitaley, Vijay Kari Singh, Rajat Joseph, Advocates
For the Respondent(s):Abhinav Mukerji, Bihu Sharma, Pratishtha Vij, Advocates
IMPORTANT POINTS
(1) NDPS offences – Complainant can also be investigating officer.
(2) Non-examination of independent witnesses would not ipso facto entitle one to seek acquittal.
(3) Reasonable doubt does not mean that proof be so clear that no possibility of error exists. Evidence must only be so conclusive that all reasonable doubts are removed from mind of an ordinary person.
Headnote:
(A) Narcotics, Drugs and Psychotropic Substances Act, 1985 – Section 20 read with Section 50 – Seizure of Charas – Reversal of acquittal by High Court – Complainant was also investigating officer – It is necessary to demonstrate that there has either been actual bias or there is real likelihood of bias, with no sweeping presumption being permissible – No reason to draw any adverse inference against complainant himself investigating his complaint – Appellants have at no stage claimed that there existed any enmity or other motive for police to falsely implicate them and let real culprits walk free – Such a huge quantity of Charas could not have been planted against appellants by police on its own – Appellants have miserably failed to make out a case where two reasonable conclusions can be reached on the basis of evidence on record – Appellants effectively have ended up admitting that they were present on spot; some interaction with police had indeed taken place; that there was sufficient cause to stop vehicle, and that such search was based not on any prior information but was spontaneous and, it was a case of chance recovery – Non-examination of independent witnesses would not ipso facto entitle one to seek acquittal – Though a heighted standard of care is imposed on court in such instances but there is nothing to suggest that High Court was not cognizant of this duty – High Court has rightly relied upon testimonies of government officials having found them to be impeccable after detailed reappreciation of entire evidence – Bo reason to disagree with such finding(s) – Safeguards for search of a person would not extend to his bag or other article being carried by them – There arises no need to examine compliance with Section 50 of NDPS Act – High Courts are well within their power to reverse an acquittal and award an appropriate sentence – Trial Court appreciated facts in a mechanical manner and dismissed prosecution case based on a misinterpretation of law, particularly qua satisfying burden of proof – There were more than enough reasons for High Court to interfere with acquittal and arrive at a different finding – Appeals dismissed. (Paras 10, 15, 16, 18, 19, 20, 21 and 22)
(B) Criminal Law – Appreciation of evidence – Expression “reasonable doubt” is a well-defined connotation – It refers to degree of certainty required of a court before it can make a legally valid determination of guilt of an accused – These words are inbuilt measures to ensure that innocence is to be presumed unless court finds no reasonable doubt of guilt of person charged – Reasonable doubt does not mean that proof be so clear that no possibility of error exists – Evidence must only be so conclusive that all reasonable doubts are removed from mind of an ordinary person – To entitle an accused person to benefit of a doubt arising from possibility of a duality of views, possible view in favour of accused must be as nearly reasonably probable as that against him. (Paras 14 and 15)
Facts of the case:
Present Criminal Appeals have been preferred against a common judgment of the High Court of Himachal Pradesh dated 28.08.2012, by which the appellants’ acquittal under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was reversed and a sentence of ten years rigorous imprisonment and fine of Rs 1,00,000 each was awarded.
Findings of Court:
Trial Court appreciated facts in a mechanical manner and dismissed the prosecution case based on a misinterpretation of law, particularly qua satisfying the burden of proof. Hence, there were more than enough reasons for High Court to interfere with the acquittal and arrive at a different finding.
Result : Appeals dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Validity of investigation where complainant is investigating officer — Necessity of independent witnesses — Admissibility of alternate defense theory — Compliance with Section 50, NDPS Act. (Para 7 , 8 )
3. Official witnesses' testimony is reliable despite lack of independent witnesses — Complainant as investigator does not automatically vitiate trial unless actual bias is proven. (Para 6 , 11 , 14 , 15 , 16 , 17 , 18 )
4. Complainant acting as investigator does not inherently cause bias — Section 50 NDPS Act safeguards do not extend to bags or articles carried by the accused. (Para 10 , 21 )
5. Appeals dismissed — Conviction and sentence of ten years rigorous imprisonment and fine upheld. (Para 22 )
6. Does the fact that the complainant is also the investigating officer automatically vitiate a trial under the NDPS Act?
No. It does not automatically cause bias or entitle the accused to acquittal. The question of bias or prejudice depends on the facts and circumstances of each case, and there is no sweeping presumption of unfairness. (Para 10 , 11 )
7. Is the non-examination of independent witnesses fatal to a prosecution case under the NDPS Act?
No. While desirable, their non-examination is not per se fatal, especially when due efforts are made by the police to secure their presence and the testimonies of official witnesses are found to be impeccable. (Para 6 , 18 )
8. Does the requirement for a search in the presence of a Magistrate or Gazetted Officer under Section 50 of the NDPS Act apply to bags?
No. The safeguards for the personal search of a person under Section 50 of the NDPS Act do not extend to the search of a bag or other articles being carried by them. (Para 21 )
9. When is an accused entitled to the benefit of doubt based on an alternative version of events?
An accused is entitled to the benefit of doubt only if the alternative view is as reasonably probable as the view against them. Fanciful and remote possibilities must be excluded. (Para 14 , 15 , 16 )
JUDGMENT :
Surya Kant, J.
Heard over video conferencing.
2. These Criminal Appeals have been preferred against a common judgment of the High Court of Himachal Pradesh dated 28.08.2012, by which the appellants’ acquittal under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) was reversed and a sentence of ten years rigorous imprisonment and fine of Rs. 1,00,000 each was awarded.
FACTS
3. The facts giving rise to both the appeals are common. On 09.01.2002, at about 1.00 P.M., a police team led by ASI Purushottam Dutt (PW8) and also comprising Constable Sunder Singh (PW1), Constable Bhup Singh (PW2) and Constable Bhopal Singh (PW7) were checking traffic at Shamshar when a motorcycle without a number plate was spotted. Gulshan Rana (appellant in Criminal Appeal No. 1126 of 2019) was driving the vehicle and Rajesh Dhiman (appellant in Criminal Appeal No. 1032 of 2013) was seated on the pillion with a backpack slung over his shoulders. They were signalled to stop and documents of the motorcycle were demanded. Meanwhile, another vehicle was halted and its occupants Karam Chand (PW3) and Shiv Ram were included in the search. An attempt was made to associate local residents to witness the subsequent proceedings, but none agreed. Subsequently, the appellants were given option to be searched in the presence of a Magistrate or Gazetted Officer but they consented to be searched by the police on the spot itself. The police then discovered polythene bags containing charas from the backpack carried by Rajesh Dhiman. The polythene bags were weighed and found to be 3kg 100gms. After separating some samples, the charas was duly sealed and handed over to Karam Chand (PW3) who later deposited it at the police station. After completion of personal search of the appellants, they were formally arrested.
4. The prosecution examined nine witnesses to support their case of chance recovery, which included eight police officials and one independent witness, Karam Chand (PW3). Whereas the police witnesses strongly corroborated each other’s testimony, PW3 was declared hostile for he claimed not to have witnessed the seizure of the narcotics. The spot map, arrest memo, search memos, consent memo, seizure memo, rukka seals, chemical analysis report and samples of charas were also adduced as evidence. In response, both appellants asserted their innocence. Although the appellants did not lead any defence evidence but they propounded an alternative version and claimed that while returning from a nearby temple, they had given a lift to an unidentified third person. The backpack containing the recovered narcotics was claimed to be owned by the said stranger, who allegedly escaped from the spot when the motorcycle was stopped by the police.
5. The learned Special Judge through judgment dated 28.12.2002 acquitted the appellants holding that charges under the NDPS Act had not been proved beyond reasonable doubt. The trial Court viewed that the witnesses on the spot had either not been examined or turned hostile. Thus, each individual element of the prosecution case, namely, from preparation of personal search memo to consent memo to recovery memo to notifying appellants’ relatives about their arrest or handing over of seal to PW3 had come under cloud for want of independent corroboration. Failure to include any other locally-resident as a neutral witness in terms of Section 100(4) of the Code of Criminal Procedure, 1973 (“CrPC”), was also held to cast serious aspersions on the prosecution version. Relying upon a decision of the Rajasthan High Court in Gyan Chand v. State of Rajasthan , 1993 Cri LJ 3716, learned Special Judge was also critical of the fact that the complainant himself was the investigating officer which caused serious prejudice to the fairness of the investigation. The trial Court thus concluded that since two versions had emerged, the one which was favourable to the accused ought to be preferred. Consequently, it held that
