In the case of Raveen Kumar v. State of Himachal Pradesh, (CRIMINAL APPEAL NOS. 2187­88 of 2011), the Supreme Court had held that the lack of independent witnesses is not fatal to the prosecution case. However such omissions cast an added duty on Courts to adopt a greater­ degree of care while scrutinizing the testimonies of the police officers.

The facts of this case initiated on 01.11.1994 at around 3:30 P.M., a police party while conducting traffic checks for suspected ammunition near the HP­J&K border at Surangani, stopped a Maruti van which was being driven by the appellant. The police in the course of rummaging found that the van was loaded with tins of ghee, a bag of maize, 20 bottles of honey, rajmah, angithi, thermos, stepney and some other miscellaneous articles. The appellant was informed of his statutory right to be searched in the presence of a magistrate or gazetted officer but he consented to being searched by the police party itself. The contents of the bag were then examined and charas,  in the form of  dhoopbati and balls was found. It was weighed using scales obtained from a nearby shop and was found to be 1 kg and 230 gms. After a 10 gm sample of the contraband was extracted, the charas was sealed and seized, and other procedural formalities were completed. The appellant was arrested and the statement of one of the two independent witnesses – Nam Singh (PW1) was recorded. The sample was sent for chemical analysis where it was confirmed to be charas with a   resin content of   34.5%.   The prosecution, accordingly, charged the appellant for the offense under Section 20 of the NDPS Act.

PW1 was declared hostile by the prosecution as he denied having personally witnessed seizure of the charas,  but nevertheless he broadly supported the prosecution case as regards procedural compliances, sealing of the recovered narcotics, and presence of the appellant. PW2 to PW5, being police witnesses,   corroborated the prosecution version regarding search, seizure, and other statutory compliances under the NDPS Act. The appellant, in his defense, denied possession of any prohibited substance and claimed that the charges were fabricated by the police given his earlier refusal to contribute money towards a sports meet organized by the jurisdictional police. No defense evidence, however, was led and the appellant instead focused on highlighting contradictions between statements of the police witnesses. The learned Special Judge vide his judgment dated 10.07.1995, acquitted the appellant observing that possession of a prohibited substance had not been proved beyond a reasonable doubt. In reaching such conclusion, the Court placed heavy reliance on an earlier reply dated 09.11.1994 ­ given by the prosecution to oppose the appellant’s prayer for bail, wherein the police claimed that the appellant “roams in the area in the vehicle in the guise of a contractor and usually deals in Contraband articles.   Earlier also on   27.10.94,   reliable secret information was received that he was carrying charas 7 kgs in the same vehicle. He was chased … but he could not be nabbed … He has been under observation for a long time.” In the opinion of the trial

Court, this unambiguously negated PW2 and PW5’s depositions that they did not know or previously engage with the appellant. It also became the sole factor to conclude that the police, in fact, had previous information of the alleged smuggling and the chance recovery was nothing but a deliberately crafted narrative to circumvent the legal safeguards under the NDPS Act, which consequently weakened the very foundations of the case. The Special Judge also noted that there was a contradiction in the statements of PW2 and PW5 and that the only independent witness had not supported the prosecution version.

Thus the court in this case had held that “There is, therefore, no legal necessity for us to re­appreciate the entire evidence merely on the premise that the High Court has convicted the appellant for the first time in the exercise of its appellate jurisdiction. Instead, the scope of the present appeals ought to be restricted to test whether the trial Court’s order was indeed perverse and whether the   High   Court’s   re­appreciation   of evidence and consequent conviction was founded on cogent evidence.”

“It is apparent that the appellant’s acquittal was primarily based upon the finding that the case was not one of ‘chance recovery’. The trial Court reached such finding solely on the basis of certain averments made in a written reply submitted on 09.11.1994 by the prosecution in opposition to the appellant’s bail application.”

“The High Court has correctly noted in the present case that no opportunity to controvert this reply document was given to the prosecution, nor was PW5 confronted with it. Moreover, no weight can be accorded to such reply when the trial Court itself, while rejecting bail on 17.11.1994, had interpreted the same to conclude that the police “was not having a prior information that the petitioner was carrying Charas in his Maruti Van, though, it appears, that there was a general information against the petitioner indulging in such activities.” Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the High Court was adequately justified to interfere with and reverse the findings.”

“It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case ( Kalpnath Rai v. State, (1998) AIR SC 201, ¶ 9.). However, such omissions cast an added duty on Courts to adopt a greater­degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction.”

“As regards the question of contradiction between PW2 and PW5’s statements,   we   find   that   the   High   Court’s   observations   are unimpeachable. It would indeed be patently wrong to suggest that PW5 deposed that the independent witnesses were called after the suspected contraband had already been recovered from underneath the driver’s seat. In fact, both PW2 and PW5 unequivocally state that the polythene bag was inspected only after the independent witnesses had arrived. There might be some confusion over the timing of removal of the other substances, being the tins of ghee, honey, maize etc., but such trivialities are not material.”

“After   having   given   a   very   generous   consideration   to   the appellant’s age and circumstances, as well as the delay in trial and appeal, we feel that it would serve the interests of justice to simply not disturb the sentence of two years’ rigorous imprisonment and a fine of Rs.50,000 which has been awarded by the High Court. We say so for the reason that the law on minimum mandatory sentence, both at the time of commission of the offence and at the stage of appeal, prohibits any imprisonment lower than a term of ten years.   Section   20(ii)   of   the   NDPS   Act,   as   it   stood   before   the amendment of 20017, specified that where contravention relates to cannabis  in  a  form other than  ganja,  then  the  same  shall be punishable with “rigorous imprisonment which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees”.

“Similarly, Section 20(ii)(C) of the NDPS Act, as it stands post the amendment   of   2001,   specifies   the   same   minimum   mandatory punishment of ten years for possession of ‘commercial quantity’ of cannabis. The High Court, as the law was being misconstrued at that time, relied upon the quantity of pure resin content of 424 gms. Instead, as now stands clarified by a co­ordinate Bench of this Court in Hira Singh v. Union of India the total quantity of the mixture, which includes the neutral substance, ought to be relevant for purposes of sentencing. This total quantity in the instant case is 1 kg 230 gms, which exceeds the definition of ‘commercial quantity’ as specified at Sl. No. 23 in Notification S.O. 1055 (E), dated 19.10.2001. Thus, the sentence accorded by the High Court is clearly already far too charitable.”

“For the afore­-stated reasons, the appeals are dismissed. The appellant’s bail bonds are cancelled and the respondent­ State is directed to take the appellant into custody to serve the remainder of his two years’ sentence.”

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