THE STATE OF HIMACHAL PRADESHversusPARDEEP KUMAR ETC.

656                      [2018]REPORTS
               SUPREME COURT   2 S.C.R. 656                   [2018] 2 S.C.R.


A                  THE STATE OF HIMACHAL PRADESH
                                         v.
                            PARDEEP KUMAR ETC.
                     (Criminal Appeal Nos. 276-277 of 2018)
B
                              FEBRUARY 16, 2018
              [RANJAN GOGOI AND R. BANUMATHI, JJ.]
              Narcotics Drugs and Psychotropic Substances Act, 1985 –
C     s.20 r/w. s.29 – Conviction under – Propriety of – On 27.01.2009 a
      police party on patroling duty on National Highway 21 on Manali-
      Kullu road, signaled a car to stop – Vehicle stopped and a person
      allegedly fled away from the car, while accused-respondent nos.1
      and 2 were found sitting in the car – On search, rucksack containing
      cannabis mixture found from the car – Trial court convicted and
D     sentenced the accused for offences u/s. 20 r/w. s.29 – High Court
      in appeal reversed the order of conviction on the ground that
      prosecution did not discharge its burden of examining independent
      witnesses in support of its case and that the contraband article was
      produced before trial court in a torn condition raising serious doubt
E     about its authenticity – Held: 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 contraband due to extreme cold
      – In absence of any animosity between the police party and the
F     accused and having regard to the large quantity of contraband
      that was recovered (18.85 kgs.), it is unlikely that the contraband
      was planted/foisted in the vehicle of accused persons – Further,
      w.r.t. condition of the contraband parcel, the prosecution witnesses
      examined in this regard testified that the parcel was in a torn condition
G     due to its bulky nature and also due to nails on the stool on which
      it was kept – Order of High Court is set aside and that of trial court
      convicting and sentencing the accused-respondents, restored.
           Evidence – Independent witnesses – Non-examination of –
      Discussed.
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                                       656
 THE STATE OF HIMACHAL PRADESH v. PARDEEP KUMAR                         657
                      ETC.

       Allowing the appeals, the Court                                  A
       HELD: 1.1 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      B
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 recovered (18.85 kgs.), it is           C
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 trial Court on 15-9-2009
in a torn condition. The prosecution witnesses examined in this         D
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            E
contraband parcel had 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. The grounds on which the High Court had             F
reversed the findings of conviction of the accused-respondents
ought not to be accepted. [Para 6][659-E-H; 660-A-B]
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 276-277 of 2018.
       From the Judgment and Order dated 02.04.2015 of the High Court
                                                                        G
of Himachal Pradesh at Shimla in Cr. A. No. 179/2011 and Cr. A. No.
180/2011 respectively.
       D. K. Thakur, AAG, Varinder Kumar Sharma, Adv. for the
Appellant.
      Rabin Majumder, Ms. Antima Bazaz, Advs. for the Respondents.
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658            SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A           The Judgment of the Court was delivered by
            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
B     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
      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
C     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
D     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
E     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 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,
F     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
G     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
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 THE STATE OF HIMACHAL PRADESH v. PARDEEP KUMAR                               659
               ETC. [RANJAN GOGOI, J.]

other such materials were recovered. Accordingly, Jeewan Lal (accused         A
No.4) was 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          B
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     C
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 findings, the appeal was allowed and       D
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            E
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        F
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 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       G
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
                                                                              H
660            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     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
B
      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 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.
C            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
D     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.

E
      Divya Pandey                                                 Appeals allowed.




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