Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.276-277 OF 2018
(Arising out of S.L.P.(Crl.) Nos.7105-7106 OF 2015)
THE STATE OF HIMACHAL PRADESH …APPELLANT(S)
VERSUS
PARDEEP KUMAR ETC. …RESPONDENT(S)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. These appeals are by the State of Himachal
Pradesh challenging the judgment of the High
Court acquitting the accused-respondent Nos.1 and
2 of the charge of commission of offences under
Section 20 read with Section 29 of the Narcotics
Drugs and Psychotropic Substances Act
(hereinafter referred to as “NDPS Act”). The
Judgment of acquittal by the High Court is in
reversal of the conviction recorded by learned
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trial court which had imposed a sentence of
rigorous imprisonment for 12 years and fine of
Rs.1,50,000/- on each of the accused. On default
of payment of the fine amount, it was ordered by
the learned trial Court that the
accused-respondents will suffer imprisonment for
a further period of one year.
3. The case of the prosecution in short is
that on 27-1-2009 at about 6.30 p.m. while a
police party was on patrolling duty on National
Highway 21 on the Manali- Kullu road, a white
colour Indica car was signaled to stop. According
to the prosecution, the vehicle stopped at a
distance of about 25 feet away from the police
party. One person is alleged to fled away from
the car and the accused No.1 was found sitting in
the rear seat of the vehicle whereas the accused
No.2 was found sitting in driver’s seat. The
prosecution further alleges that the accused
Nos.1 and 2 disclosed their names and had further
stated that the person who fled away is one
Rajbir Singh. It is the further case of the
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prosecution that prior to search of the vehicle,
police constables were sent to bring local
witnesses but they did not succeed in bringing
any witnesses as on account of the severe cold on
the date of occurrence, no independent person was
available. Thereafter, a search of the car was
conducted by the police party and a rucksack was
found lying near the legs of accused No.2 which
was found to contain cannabis mixture weighing
about 18.85 kgs. According to the prosecution
two samples of about 25 grams each were taken
from the contraband recovered and the samples
were separated and sealed. Both the accused Nos.1
and 2 were arrested and on the next day accused
No.3 was also arrested. During interrogation, the
accused persons had named one Jeewan Lal as the
person from whom they had purchased the
contraband. The house of Jeewan Lal was searched
on 29.11.2009 and an electronic weighing machine,
envelopes containing small particles of cannabis
and other such materials were recovered.
Accordingly, Jeewan Lal (accused No.4) was
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arrested. Charges were framed against all the
four accused who were sent for trial. At the
conclusion of the trial, the learned trial court
while convicting and sentencing the accused Nos.1
and 2, as aforesaid, acquitted the other accused
Nos.3 and 4.
4. Aggrieved, the accused-respondents had filed
appeals before the High Court.
5. The High Court, as it appears from the
impugned judgment, took the view that the
prosecution had not discharged its burden of
examining independent witnesses in support of its
case inasmuch as there was a bazaar situated at a
distance of about 100 meters and further the
place where the contraband was allegedly detected
and seized was on the Manali-Kullu Road which is
a busy road with many buses and vehicles plying
on the same. The High Court also took the view
that the contraband article was produced before
the learned trial court in a torn condition which
raised serious doubts as to its origin and
authenticity. On the basis of the aforesaid twin
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findings, the appeal was allowed and the order of
conviction of the accused-respondents was
reversed.
6. We have considered the matter and have heard
the learned counsels for the parties. So far as
examination of independent witnesses in support
of the prosecution case is concerned all that
would be necessary to say in this regard is that
examination of independent witnesses is not an
indispensable requirement and such
non-examination is not necessarily fatal to the
prosecution case. In the present case, according
to the prosecution, independent witnesses were
not available to witness the recovery of the
contraband due to extreme cold. The fact that
the incident took place at about 6.30 p.m. on
27-01-2009 and that too on the Manali-Kulu road
may lend credence to the prosecution version of
its inability to produce independent witnesses.
In the absence of any animosity between the
police party and the accused and having regard to
the large quantity of contraband that was
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recovered (18.85 kgs.), we are of the view that
it is unlikely that the contraband had been
planted/foisted in the vehicle of the accused
persons. In so far as the condition of the
contraband parcel is concerned, the materials on
record indicate that the said parcel was brought
to the learned trial Court on 15-9-2009 in a torn
condition. The prosecution witnesses examined in
this regard had testified that the parcel was in
a torn condition due to its bulky nature and also
due to nails on the stool on which it was kept.
In this regard, it may also be noted that the
samples from the contraband parcel were sent to
the Forensic Laboratory on 23.7.2010. No
suggestion was given to the witnesses (PWs 12 and
13) who had taken the samples to the laboratory
that the contraband parcel has been tampered
with. PW-16, who had chemically examined the
contraband samples, was fully cross-examined by
the defence. There is nothing in his evidence to
suggest that the sample(s) came to him in a torn
or otherwise doubtful condition. In view of all
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the above, we are of the opinion that the grounds
on which the High Court have reversed the
findings of conviction of the accused-respondents
ought not to be accepted.
7. We, therefore, for the aforementioned
reasons, set aside the order of the High Court
acquitting the accused-respondents and restore
the order of the learned trial court convicting
the accused-respondents under Section 20 read
with Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. The sentence
imposed by the learned trial Court is also
restored. The accused respondents shall surrender
forthwith to serve out the remaining part of the
sentence failing which they will be taken into
custody.
8. The appeals are allowed as indicated above.
....................,J.
(RANJAN GOGOI)
....................,J.
(R. BANUMATHI)
NEW DELHI
FEBRUARY 16, 2018