Varinder Kumar vs The State Of Himachal Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 2450­2451 OF 2010

VARINDER KUMAR ....APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant assails the order reversing his acquittal and

convicting him under Section 20(ii)(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as “the

NDPS Act”), sentencing him for 20 years, along with fine of Rs.2 lacs,

with a default stipulation.

2. The appellant is stated to have been apprehended on 31.03.1995

carrying “charas” on his scooter, in two gunny bags, with varying

quantities. The Trial Court acquitted the appellant on grounds of non­

compliance with Section 100(4) of the Code of Criminal Procedure, Signature Not Verified

with regard to independent witnesses. Further, there had been non­ Digitally signed by JAYANT KUMAR ARORA Date: 2019.02.11 17:38:48 IST Reason:

compliance with Sections 50, 52 and 57 of the NDPS Act, and that the

1 seal prepared at the time of seizure and handed over to PW­5, Naresh

Kumar had not been produced in the court.

3. The High Court, reversing the acquittal held that the seals

prepared at the time of seizure, and also at the time of deposit in the

Malkhana had been produced and marked as Exhibits PH and PK.

The chemical examiners report confirmed the seized material as

“charas”. The seizure of the contraband being from gunny bags,

Section 50 of the NDPS Act had no application. Merely because the

two independent witnesses were not from the same locality, would not

ipso facto amount to violation of Section 100(4), Cr.P.C.

4. Shri Dhruv Pall, learned counsel for the appellant submitted that

the appellant had been falsely implicated because he had lodged a

complaint against the C.I.D., for improper investigation in the case

relating to his father’s death. PW­5, Naresh Kumar, the independent

witness, had turned hostile and did not support the prosecution case

with regard to search and seizure. The second independent witness

Jeevan Kumar, was withheld by the prosecution without any

explanation. In the facts of the case, the absence of independent

witnesses from the same locality as required by Section 100(4) Cr.P.C.

2 assumes importance. PW­10 Sub­ Inspector Prem Singh, being the

informant himself, was also the Investigating Officer, and which alone

vitiates the conviction irrespective of all other issues. Strong reliance

was placed on a recent decision of this Court in Mohan Lal vs. State

of Punjab, AIR 2018 SC 3853.

5. Shri Abhinav Mukerji, learned counsel appearing for the State,

opposing the appeal submitted that the order of the High Court being

well reasoned and considered merits no interference. The appellant

has a previous history of convictions under the NDPS Act. The ground

that PW­10 being the informant could not have been the investigating

officer also, had not been raised at any stage. The order of conviction

therefore may not be tested on a ground to which the High Court had

no occasion to apply its mind. It has also not been pleaded in the

appeal.

6. We have considered the respective submissions. PW­10 is stated

to have received secret information at 2.45 P.M. on 31.03.1995. He

immediately reduced it into writing and sent the same to PW­8, Shri

Jaipal Singh, Dy.S.P., C.I.D., Shimla. At 3.05 P.M. PW­7, Head

Constable Surender Kumar stopped PW­5, Naresh Kumar and another

3 independent witness, Jeevan Kumar travelling together, whereafter the

appellant was apprehended at 3.30 P.M. with two Gunny Bags on his

Scooter which contained varying quantities of ‘charas’. PW­8, Shri

Jaipal Singh, Dy.S.P., C.I.D., Shimla who had arrived by then gave

notice to the appellant and obtained his consent for carrying out the

search. Two samples of 25 gms. each were taken from the two Gunny

Bags and sealed with the seal ‘S’, and given to PW­5. PW­2, Jaswinder

Singh the Malkhana Head Constable resealed it with the seal ‘P’. The

conclusion of the Trial Court that the seal had not been produced in

the Court is therefore perverse in view of the two specimen seal

impressions having been marked as Exhibits PH and PK. It is not the

case of the appellant that the seals were found tampered in any

manner.

7. Section 50 of NDPS Act patently has no application since the

recovery was not from the person of the appellant but the gunny bags

carried on the scooter. PW­5 the independent witness who had signed

the search and seizure documents but turned hostile, was duly

confronted under Section 145 of the Evidence Act, 1872 with his

earlier statements to the contrary under Section 161 Cr.P.C. and did

not deny his signatures. The order sheet dated 08.11.1995 of the Trial

4 Court reveals that independent witness Jeevan Kumar was present on

that date to depose, but was bound down on objection from the

defence side that he be examined on another date along with other

witnesses. It is therefore very reasonable to conclude that the witness

did not appear subsequently because he may have been won over by

the appellant. There is no material to conclude that the witness was

withheld or suppressed by the prosecution with any ulterior motive.

There is no material for us to conclude that PW­5 and the other

independent witness Jeevan Kumar were not respectable persons.

Given the very short span of time in which events took place it is not

possible to hold any violation of Section 100(4) Cr.P.C. In any event,

no prejudice on that account has been demonstrated. Sections 52

and 57 of NDPS Act being directory in nature is of no avail to the

appellant.

8. The appellant took a defence under Section 313 Cr.P.C. of false

implication but failed to produce any evidence with regard to the

complaint lodged by him against the C.I.D. department, a fact noticed

by the Trial Court itself. We therefore find no reason to come to any

different conclusion than that arrived at by the High Court.

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9. The only issue surviving for consideration is with regard to the

prosecution being vitiated because PW­10 was the informant as also

the Investigating Officer, in view of Mohan Lal (supra). The ground

not having been raised at any earlier stage quite obviously, the

prosecution never had a chance to contest the same. It has not even

been pleaded in the appeal. Nonetheless in view of the reliance placed,

we shall examine the issue.

10. In Mohan Lal (supra) our attention had been invited to the

divergent views being taken on the issue with regard to the informant

and the investigating officer being the same person in criminal

prosecutions, and the varying conclusions arrived at in respect of the

same. The facts in Mohan Lal (supra), were indeed extremely telling

in so far as the defaults on part of the prosecution was concerned. In

that back ground it was held that the issue could not be left to be

decided on the facts of a case, impinging on the right of a fair trial to

an accused under Article 21 of the Constitution of India, observing as

follows:

“25. In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of

6 the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”

11. The paramount consideration being to interpret the law so that

it operates fairly, the facts of that case did not show any need to

visualise what all exceptions must be carved out and provided for.

The attention of the Court was also not invited to the need for

considering the carving out of exceptions.

12. Individual rights of the accused are undoubtedly important. But

equally important is the societal interest for bringing the offender to

book and for the system to send the right message to all in the society

—be it the law­abiding citizen or the potential offender. ‘Human

rights’ are not only of the accused but, extent apart, also of the victim,

the symbolic member of the society as the potential victim and the

society as a whole.

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13. Law has to cater to wide variety of situations as appear in

society. Law being dynamic, the certainty of the legislation appears

rigid at times whenever a circumstance (set of facts) appears which is

not catered for explicitly. Expediency then dictates that the higher

judiciary, while interpreting the law, considers such exception(s) as

are called for without disturbing the pith and substance and the

original intention of the legislature. This is required primarily for the

reason to help strike a balance between competing forces – justice

being the end – and also because the process of fresh legislation could

take a long time, which would mean failure of justice, and with it

erosion of public confidence and trust in the justice delivery system.

14. The principle of fair trial now informs and energises many areas

of the law. It is a constant, ongoing, evolutionary process continually

adapting itself to changing circumstances, and endeavouring to meet

the exigencies of the situation – peculiar at times – and related to the

nature of crime, persons involved, directly or operating from behind,

and so many other powerful factors which may come in the way of

administration of criminal justice, wherefore the endeavour of the

higher courts, while interpreting the law, is to strike the right balance.

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15. Societal interest therefore mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a spring board by an

accused for being catapulted to acquittal, irrespective of all other

considerations pursuant to an investigation and prosecution when the

law in that regard was nebulous. Criminal jurisprudence mandates

balancing the rights of the accused and the prosecution. If the facts

in Mohan Lal (supra) were telling with regard to the prosecution, the

facts in the present case are equally telling with regard to the accused.

There is a history of previous convictions of the appellant also. We

cannot be oblivious of the fact that while the law stood nebulous,

charge sheets have been submitted, trials in progress or concluded,

and appeals pending all of which will necessarily be impacted.

16. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570, it

was observed as follows:

“37.…… A large number of trials have been held during the period between 4.8.2005 and 18.9.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 has to be retrospective in operation unless the judicial tool of “prospective overruling” is applied.

However, retrospective application of the judgment is not in the interest of administration of justice as it would necessitate the reopening of a large number of

9 criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage.

Attempts will be made to reopen cases which have become final.”

17. That subsequent events noticed, may require revisiting of an

earlier decision, to save actions already taken was considered in

Harsh Dhingra vs. State of Haryana and Others, (2001) 9 SCC

550, observing as follows:

“6. Further, when the decision of the High Court in S.R. Dass case [(1999)3 SCC 362] had held the field for nearly a decade and the Government, HUDA and the parties to whom the allotments have been made have acted upon and adjusted their affairs in terms of the said decision, to disturb that state of affairs on the basis that now certain other rigorous principles are declared to be applied in Anil Sabharwal case [(1997) 2 Punj LR7] would be setting the rules of the game after the game is over, by which several parties have altered their position to their disadvantage. Therefore, we think that in the larger public interest and to avoid the discrimination which this Court had noticed in the order dated 5.12.1997 [(1998) 8 SCC 373] the decision of the High Court in Anil Sabharwal case should be made effective from a prospective date and in this case from the date on which interim order had been passed on 23.4.1996. Therefore, it would be appropriate to fix that date as the date from which the judgment of the High Court would become effective. If this course is adopted, various anomalies pointed out in respect of different parties referred to above and other instances which we have not adverted to will be ironed out and the creases smoothened so that discrimination is avoided.

7. Prospective declaration of law is a device innovated

10 by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation.

By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty­bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation. These principles are enunciated by this Court in Baburam vs. C.C. Jacob, (1999) 3 SCC 362 and Ashok Kumar Gupta vs. State of U.P., (1997) 5 SCC 201.”

18. The criminal justice delivery system, cannot be allowed to veer

exclusively to the benefit of the offender making it uni­directional

exercise. A proper administration of the criminal justice delivery

system, therefore requires balancing the rights of the accused and the

prosecution, so that the law laid down in Mohan Lal (supra) is not

allowed to become a spring board for acquittal in prosecutions prior to

the same, irrespective of all other considerations. We therefore hold

that all pending criminal prosecutions, trials and appeals prior to the

law laid down in Mohan Lal (supra) shall continue to be governed by

the individual facts of the case.

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19. The present appeals lack merit and are therefore dismissed.

…………...................CJI.

[RANJAN GOGOI]

…………...................J. [NAVIN SINHA]

…………...................J. [K.M. JOSEPH]

NEW DELHI FEBRUARY 11, 2019.

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