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2012 DIGILAW 263 (HP)

Ram Singh v. State Of Himachal Pradesh

2012-05-08

R.B.MISRA, SANJAY KAROL

body2012
JUDGMENT : Sanjay Karol, J.(Oral) - The Supreme Court in Zahira Habibulla H. Sheikh and another v. State of Gujarat and others, (2004) 4 SCC 158 has held as under:- "56. As pithily stated in Jennison v. Baker, [(1972) 1 All ER 997 : (1972) 2 QB 52 : (1972) 2 WLR 429 (CA)] "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope." Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or Whether reports of Local Papers may be allowed to see the judgment? covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. [See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 2003 SCC (Cri) 1918]" 2. On 28.2.2005, accused persons were caught carrying contraband substance i.e. Charas, weighing 6 kilograms and 800 grams. The contraband substance was seized from the conscious possession of the accused. It was sealed and taken into possession by the police. Accused were charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The Additional Sessions Judge, Mandi, Himachal Pradesh, by a common judgment convicted the accused of the charged offence and sentenced them to undergo rigorous imprisonment for a period of ten years and pay fine of Rs. 1,00,000/- each. The conviction was, inter alia, based on the chemical examiners report (Ex. PX), Section II of which reads as under:- "Mark: A-1. Lab No.656 1. Date of receipt in the laboratory : 2-3-2005 2. Weight [net weight]s fount in laboratory 29.3109 gms. 3. Date of conducting the test result of : 26-5-2005 4. 1,00,000/- each. The conviction was, inter alia, based on the chemical examiners report (Ex. PX), Section II of which reads as under:- "Mark: A-1. Lab No.656 1. Date of receipt in the laboratory : 2-3-2005 2. Weight [net weight]s fount in laboratory 29.3109 gms. 3. Date of conducting the test result of : 26-5-2005 4. [a] Qualities test Microscopic exam:- cystolithic hairs present [b] Result of quantitative test: Beams alkaline test = positive Resin = 31.14% [c] General observation of the chemist : I am of the opinion that the exhibit contains the contents of charas. Name and Signature of Chemical Examiner, Chemist Himachal Pradesh C.T.L. Kandaghat." 3. Assailing the impugned judgment dated 29.6.2006 passed by Special Judge (Additional Sessions Judge), Mandi, Himachal Pradesh in Sessions Trial No. 14 of 2005, titled as State v. Ram Singh and another, the accused have preferred the instant appeals. Criminal Appeal No. 259/2006 was admitted on 30.8.2006 and Criminal Appeal No. 267/2006 was admitted on 6.9.2006. 4. Similar report came up for consideration before the Division Bench of this Court in Sunil v. State of H.P., Latest HLJ 2010 (HP) 207. While construing the statutory provisions of Section 2 (iii)(a)(b) & (c) of NDPS Act, 1985, this Court held that it was necessary for the expert to have mentioned existence or absence of tetrahydrocannabinol or cystolithic hair and their respective percentages. Absence thereof, would not establish that the contraband substance was Bhang, ganja or charas. Also determination of percentage was necessary, as it would help the Court to determine whether seized quantity was of small or commercial in nature, on the basis of which, in the event of conviction, sentence could be awarded to the accused. 5. In the given facts and circumstances this technical flaw could lead to rejection of the prosecution case. Under these circumstances, State has filed the instant applications under Section 391 read with Section 91 and 482 of Code of Criminal Procedure for leading additional evidence. 6. Applications are opposed on the ground that prosecution cannot be allowed to fill in the lacuna and that too at a belated stage, as it would amount to de novo trial and also materially prejudice the accused. 7. 6. Applications are opposed on the ground that prosecution cannot be allowed to fill in the lacuna and that too at a belated stage, as it would amount to de novo trial and also materially prejudice the accused. 7. Under provisions of the Code of Criminal Procedure, 1898, the appellate court had power to pass orders, for leading additional evidence under Section 428 which reads as under:- "Appellate Court may take further evidence or direct it to be taken.- (1) In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When additional evidence is taken by Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken; but such evidence shall not be taken in the presence of jurors. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry." 8. With the enactment of the new Code of Criminal Procedure, 1973 said power is stipulated under Section 391, which reads as under:- "Appellate Court may take further evidence or direct it to be taken - (1) In dealing with any appeal under this Chapter, the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry." 9. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry." 9. Apparently both these Sections are somewhat similar with each other. In its various judicial pronouncements, Supreme Court has considered the object, significance, purpose, scope and ambit of such power. 10. The Constitution Bench of the Supreme Court in Ukha Kolhe v. The State of Maharashtra, AIR 1963 SC 1531 had the occasion to deal with the case where accused Ukha Kolhe, was allegedly driving motor vehicle under the influence of liquor. Vehicle met with an accident in which several persons, including the driver sustained injuries. Of his own, Ukha Kolhe went to the hospital, where on examination doctors found him smelling of alcohol. Dr. Kulkarni directed Dr. Rote to collect specimen of the blood from the body of Ukha Kolhe, which was done and kept in a phial. Thereafter Okha Kolhe left the hospital. Subsequently, police registered F.I.R against Ukha Kolhe under the provisions of Indian Penal Code, Motor Vehicles Act and the Bombay Prohibition Act IV, 1949. During the course of investigation, medical examination of Ukha Kolhe was got done by the police and specimen of his blood was again collected. Subsequently police learnt that hospital authorities had already taken specimen of blood of the accused, as such investigating officer collected the same alongwtih certificate issued by Dr. Rote, and after affixing his seal, forwarded the same to the chemical examiner for analysis. Upon examination of the contents of the phial, it was found that Ukha Kolhe was under the influence of alcohol, concentration of which was in excess of permissible level stipulated under the Provisions of Bombay Prohibition Act. However, the Magistrate acquitted Ukha Kolhe on the ground that there was no evidence on record to show in whose custody the phial remained till it was handed over to the investigation officer and also there was no evidence about the precautions taken to ensure that it was not tampered with while it remained with the hospital authorities. Observing that there was no fair and full trial in respect of the offence under the Prohibition Act, the Sessions Judge set aside the judgment passed by the trial Magistrate and remanded the case for re-trial. Observing that there was no fair and full trial in respect of the offence under the Prohibition Act, the Sessions Judge set aside the judgment passed by the trial Magistrate and remanded the case for re-trial. The Supreme Court while construing provisions of the Bombay Prohibition Act and Section 428 (i) of the Code of Criminal Procedure, 1898, held that, if in the interest of justice and for just and proper decision of the case, Sessions Judge thought it desirable to have additional evidence brought on record, in that event rather than directing re-trial and re-opening the entire proceedings, Sessions Judge should have himself taken the same on record and decided the matter on merits. However order leading to taking on record additional evidence was upheld. Significantly Supreme Court held that opportunity to lead evidence is not with a view to fill up lacuna in the evidence but to regularise the trial of the accused and ensure that case is established against him beyond reasonable doubt, more so when for the purposes of convicting the accused, reliance is sought to be placed upon the presumption arising from the report of the chemical examiner. 11. In our considered view the ratio laid down therein is squarely applicable to the instant fact. 12. Further in Rajeswar Prasad Misra v. The State of West Bengal and another, AIR 1965 SC 1887 , three Judge Bench of the Supreme Court had occasion to deal with case where accused was charged for having committed an offence punishable under Section 408 of the Indian Penal Code. Trial Court acquitted the accused. On the complainants appeal, High Court of Calcutta directed production of certain documents as additional evidence based on which accused was convicted. While construing the provisions of Section 428 of the old Code, it was observed that no straight jacket formula can be laid down with regard to the power which can be exercised by the appellate court under the Section. Since Legislature itself chose not to indicate limits of such power, courts cannot circumscribe the same. Wide discretion is conferred on the appellate court and limits of such jurisdiction must obviously be clearly indicated by the exigency of the situation. Fair play and good sense appears to be the only safe guides. Direction for leading additional evidence would subsume failure of justice as a condition precedent. Wide discretion is conferred on the appellate court and limits of such jurisdiction must obviously be clearly indicated by the exigency of the situation. Fair play and good sense appears to be the only safe guides. Direction for leading additional evidence would subsume failure of justice as a condition precedent. It further held that: "(9) Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise..." 13. In State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 , the Supreme Court held that a mere fact that six years had elapsed, for which time-lag prosecution was in no way responsible, was no good ground for refusing to act for leading additional evidence, in order to promote interest of justice in an age when delays in the court have become part of life and the order of the day. The Court was dealing where prosecution was intending to place on record report of the Mint Master to prove quality of gold (contraband substance) and establish the charge under the economic laws of the land. It was also held that: "to deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. It was also held that: "to deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the court in the discharge of his judicial functions. The Community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an ever-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest..." 14. The Supreme Court in Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 has held that:- "... A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 15. The Supreme Court in Rambhau and another v. State of Maharashtra, 2001 (4) SCC 759 again reiterated the principle with regard to the scope and power of the appellate court under Section 391 of the new Code by stating that it is not to fill up the lacuna but to sub serve the ends of justice. 16. While construing the provisions of Section 391 of the new Code, the Supreme Court in Zahira Habibulla H. Sheikh(supra) further held that: "31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court." Vice-Chancellor Knight Bruce said [Pearse v. Pearse, (1846), 1 De G & Sm. 12 : 16 L.J. Ch. 153 : 63 ER 950 : 18 Digest (Repl.) 91, 748] : "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination... Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much." The Vice-Chancellor went on to refer to paying "too great a price... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much." The Vice-Chancellor went on to refer to paying "too great a price... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms : "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards." "35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law...". "36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted..." "40. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted..." "40. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice." "47 ...Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable." "48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391." "59. Merely because the High Court permits additional evidence to be adduced, it does not necessarily lead to the conclusion that the judgment of the trial Court was wrong. That decision has to be arrived at after assessing the evidence that was before the trial court and the additional evidence permitted to be adduced..." 17. The Supreme Court in Anil Sharma and others v. State of Jharkhand, (2004) 5 SCC 679 again had an occasion to deal with the scope of Section 391 of the new Code and held that ultimately court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits, of the material sought to be brought in. 18. 18. In Satyajit Banerjee and others v. State of W.B. and Others, (2005) 1 SCC 115 , the Supreme Court had an occasion to deal with the case where the High Court remanded the matter to the trial court "for fresh decision from stage one", as acquittal by the trial court was contrary to the corresponding material on record, which could have been corroborated by leading additional evidence. The accused was charged for having abetted death of his wife and as such was charged for having committed an offence punishable under Section 498-A and 306 IPC. Order passed by the High Court was upheld, as it was found that the acquittal had resulted into flagrant miscarriage of justice. 19. In Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402 , the Supreme Court further held that primary object of provision of Section 391 of the new Code is prevention of a guilty mans escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. 20. Coming to the facts of the instant case, after admission, present appeals matured for hearing and listed only on 8.12.2011, when matter was adjourned on the request of the accused. After winter vacations, on 3.4.2012 when the matter was again listed, request for adjournment was made on behalf of the State. And before the matter could be heard on 9.4.2012 on merits, State filed the instant applications. 21. We find that in the instant case, accused stood convicted of a heinous crime of dealing in Narcotic Drugs and Psychotropic Substance, which is a source of great menace to the society. 22. Considering the principles of law laid down by the Supreme Court, we are of the considered view that request of the State needs to be allowed. It is not the endeavour of the State to fill in the lacuna. Application is necessitated on account of pronouncement of judgment in Sunil (supra). 23. It cannot be said that State is trying to fill in the lacuna or that there is inordinate delay on the part of the State to take effective steps. It cannot be shown as to how by allowing the applications prejudice would be caused to the accused. Application is necessitated on account of pronouncement of judgment in Sunil (supra). 23. It cannot be said that State is trying to fill in the lacuna or that there is inordinate delay on the part of the State to take effective steps. It cannot be shown as to how by allowing the applications prejudice would be caused to the accused. On the contrary, fresh analysis of the contraband substance would only lead to truth coming to the fore, and if it is ultimately found that the contraband substance recovered from the conscious possession of the accused is not Charas then it would definitely facilitate in their acquittal and discharge. On the other hand if the accused are let off only on technical grounds it would result into serious miscarriage of justice. It would have a definite bearing at the time of awarding sentence, if any. Principles of fair play and good sense being a safe guard and guiding force are required to be invoked in the instant case to arrive at a just decision. It is not a lacuna on the part of the investigating agency, which is now sought to be filled up by the prosecution. There is no inherent weakness and latent wedge in the instant case. In any event having the fresh report placed on record would sub-serve the ends of justice and more so to find out the ultimate truth and prevent miscarriage of justice. Elucidating the truth is absolutely essential in the instant facts. 24. In the instant case, it is seen from the testimonies of police officials that at the time of search and seizure operations, two samples (Ext. P-6 and Ext. P-7) were drawn. The samples along with bulk parcels (Ext. P1 and Ext. P-2) were packed and sealed separately. It has also come on record that only one sample was sent for chemical analysis. Undisputedly remaining sample as also the bulk parcels which were sealed are lying with the police in the Malkhana. It is this sample/parcel, which is now sought to be sent to Forensic Science Laboratory, Junga, for the purpose of chemical analysis. It has also come on record that only one sample was sent for chemical analysis. Undisputedly remaining sample as also the bulk parcels which were sealed are lying with the police in the Malkhana. It is this sample/parcel, which is now sought to be sent to Forensic Science Laboratory, Junga, for the purpose of chemical analysis. In the interest of justice, we find that it would be prudent and necessary that both the remaining sample and the bulk parcels are sent to the F.S.L. Junga, for chemical analysis and for obtaining a fresh report in the light of the ratio of law laid down by this Court in Sunil v. State of H.P., Latest HLJ 2010 (HP) 207. 25. Under these circumstances, applications are allowed. Station House Office, Police Station Gohar, District Mandi, is directed to personally take the sample/parcel to the F.S.L. Junga, along with the connecting material, within a period of two weeks from today and after collecting the report from the concerned Laboratory, place the same before this Court along with his personal affidavit. Needful be positively done before the next date. List on 29.5.2012.