The State Of Himachal Pradesh vs Pardeep Kumar

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 2

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 3

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 4

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 5

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 6

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 7

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