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2019 DIGILAW 880 (GAU)

Chander Pal @ Chandra Pal v. Union Of India

2019-08-07

MIR ALFAZ ALI

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JUDGMENT : Mir Alfaz Ali, J. Both these appeals arise out of the judgment and order dated 18-11-2017 passed by the learned Additional Sessions Judge, Kamrup (Metro), Guwahati in NDPS Case No. 7/2015. By the said judgment, the appellants were held guilty of offence punishable under section 21(c)/29 of the NDPS Act and sentenced to rigorous imprisonment for 12 years and fine of Rs. 1 lakh each with default stipulation. 2. Prosecution case in brief is that a secret information was received by PW-1, Intelligence Officer of the Narcotic Control Bureau (NCB) about the movement of two persons at the Guwahati Railway Station who were carrying heroine. The information was reduced to writing and was sent to the higher authority. To pursue the information, a team was constituted under the leadership of PW-1 and they arrived at the Guwahati Railway Station on that day at about 6.45 am. They also requested two persons to be witness to the search and seizure. The NCB team started to search the persons as per the information received. After few moments, they noticed two persons, one carrying a suitcase and the other a trolley bag, were standing at the platform no. 1 of the Guwahati Railway Station as mentioned in the secret information. On being asked by the NCB team, they introduced themselves to be Chander Paul and Shiv Kumar Verma. The NCB team conducted a search in presence of the independent witnesses and upon such search, colored powder suspected to be brown sugar was recovered from both the suitcase and the trolly bag. A small quantity of the said powder from the suitcase and the trolly bag was tested by the drug testing kits, which gave positive test for narcotic drugs. Accordingly, they seized the said brown colour powder by Ext. 4, took sample in duplicate from each of the packets, which were sent for forensic examination and the forensic examination report gave positive test for morphine. The total quantity of contraband seized was 3.540 kg. Accordingly, prosecution was launched against both the appellants. 3. In course of trial, prosecution examined five witnesses and on appreciation of evidence, learned trial court convicted both the appellants and awarded sentence as indicated above. 4. The total quantity of contraband seized was 3.540 kg. Accordingly, prosecution was launched against both the appellants. 3. In course of trial, prosecution examined five witnesses and on appreciation of evidence, learned trial court convicted both the appellants and awarded sentence as indicated above. 4. Learned counsel for the appellants assailed the impugned judgment basically on the ground that independent witnesses present at the time of search and seizure have not been examined and the trolley bag and the suit case containing the contraband articles were not seized from the possession of the appellants, inasmuch as, the trolly bag and suit case were not produced before the court. Learned counsel also contended that the trial stood vitiated as the investigation was done by the complainant himself. 5. Ext. 4, the seizure memo, shows that the contraband articles were seized in presence of two independent witnesses, namely, Ajit Das and Pranjal Baruah. It is also in the deposition of PW-1, the seizing officer as well as the PW-3, the investigating officer, that the said two persons, who were found in the Railway platform agreed to be witness to the search and seizure and they were present at the time of search and seizure. Evidently none of the independent witnesses was examined by the prosecution. 6. Learned counsel for the appellants placing reliance on a decision of this Court in Md Ayub Vs State of Assam, (1998) 1 GauLT 313 submits, that non-examination of the independent witness cast a serious doubt on the prosecution case, and therefore, no conviction can be based on the basis of such evidence, when the vital independent witnesses are withheld. 7. Learned Standing Counsel for the NCB submits that when the PW-1, PW-3 and PW-5, responsible officers of the NCB have clearly deposed regarding search and seizure of the contraband articles of commercial quantity from the possession of the appellants and the forensic examination report gave positive test for morphine, mere non-examination of the independent seizure witnesses cannot throw the prosecution case overboard, inasmuch as, there is no material on record to disbelieve the official witnesses. In support of his contention, learned standing counsel placed reliance on a decision of the Apex Court in Baldev Singh Vs State of Haryana, where the Apex Court held as under : - There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. 8. In Baldev Singh’s case, the contraband articles were seized from the accused at about 12.15 am midnight and no independent witness was available. The lone person found also refused to be witness. In that situation, the Apex Court held that the testimony of an official witness cannot be discarded only because of absence of independent witness to support such official witness. In the present case, apparently, after receipt of the secret information when the NCB team arrived at the railway platform, they met the two independent witnesses, who agreed to be witnesses to the process of search and seizure and they were all along with the NCB team and their signatures were obtained almost in all documents including the Ext. 4, the seizure list. However, no plausible explanation is forthcoming as to why the independent witnesses, who were all along present, were not examined. Had it been a case that inspite of all efforts the independent witnesses could not be examined, matter perhaps could be looked from a different angle. 9. Section 100 (4) of the Cr.P.C. provides that before making a search, the officer or other person shall call upon two or more independent and respectable inhabitants of the locality, in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do and search shall be made in their presence. Obviously the object and purpose of such provision of making a search in presence of independent witness is to give transparency and credibility to the process of search and seizure. 10. In case of search and seizure under the NDPS Act which provides stringent punishment, the officer conducting the search is under obligation to make such search in presence of independent witness and it is desirable that such legal requirements are strictly complied with. It is also to be noted that presence of independent witnesses at the time of search and seizure does not necessarily mean only to obtain their signatures in the seizure list or panchnama. Since the presence of independent witnesses are required in order to give transparency and credibility to the process of search and seizure, such witness cannot be withheld without any reason, otherwise the purpose of making the search and seizure in presence of independent witness would be meaningless. 11. This Court in Ayub Vs State of Assam, (1998) 1 GauLT 313, where the independent witnesses examined did not support the prosecution case, the Court was reluctant to rely upon the official witness to such search and seizure. This Court observed in Ayub Vs- State of Assam (supra) that there were many passengers coming and going, but none of them, except the excise office has been examined. It is not to suggest that the person in uniform is not a reliable witness but the particular fact of the case is that where other independent witness examined by the prosecution has neither supported the prosecution case, nor he has been declared hostile, it is difficult to hold that the prosecution has succeeded in bringing home the charge against the accused. It is no doubt true that mere non-examination of independent witness or absence of independent witness, per se, may not render the prosecution case unworthy of credence. There may be a situation where search and seizure was made in such circumstances, that it was not possible to get an independent witness and the official witnesses in such circumstances, cannot be disbelieved only for the reason of non-examination of an independent witness. But in the present case, two independent witnesses were present and allegedly accompanied the official witnesses throughout the process of search and seizure, but none of them has been examined without any explanation. But in the present case, two independent witnesses were present and allegedly accompanied the official witnesses throughout the process of search and seizure, but none of them has been examined without any explanation. When the purpose of presence of an independent witness is not merely to obtain their signatures in the seizure list, but to give transparency and credibility to the process of search and seizure, withholding of the independent witness without any reason cannot be viewed lightly in a trial of an offence under the NDPS Act which provides for stringent punishment and also carries certain legal presumption putting reverse burden on the accused. 12. It is evident from the record that the secret information was received by the PW-3 at 5 am. According to PW-3, he informed his senior officer about the secret information and he was appointed as the Investigating Officer of the case. All the PW-1, PW-3 and PW-5 stated that they started from the office at 6am and reached the railway platform at 6.45 am. PW-1 the seizing officer, one Suresh Kumar Singh stated in cross-examination, that they received the formal authority letter within half an hour before leaving the railway platform. Apparently the complaint in the instant case was lodged by PW-3 himself, who received the secret information and the investigating of the case was also done by him. 13. A Three-Judge Bench of the Apex Court in a recent decision in Mohanlal Vs- State of Punjab, 2018 SC 3853 held that when the informant and the investigating officer is the same person, the prosecution is said to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The Apex Court observed in para 25 and 26 as under :- 25. In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of 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. 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 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. 26. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The appellant is directed to be set at liberty forthwith unless wanted in any other case. 14. In the present case, the officer, who received the information was himself the complainant and investigating officer of the case, therefore, in view of the mandate of the Apex Court, the prosecution case is to be discarded on this count too. Otherwise also the prosecution case is not overboard for the reason as indicated above. 15. In view of the above facts and circumstances, prosecution cannot be held to have proved the guilt of the appellants beyond reasonable doubt, and as such, both the appeals deserve to be allowed. Accordingly, the conviction and sentence of the appellants in both the appeals are set aside. Both the appeals stand allowed. 16. The appellants be set at liberty forthwith, if not required in any other case. 17. Send down the LCR.