VARINDER KUMARversusSTATE OF HIMACHAL PRADESH

                         [2019] 2 S.C.R. 707                               707


                         VARINDER KUMAR                                    A
                                   v.
                  STATE OF HIMACHAL PRADESH
               (Criminal Appeal Nos.2450-2451 of 2010 )
                         FEBRUARY 11, 2019
                                                                           B
           [RANJAN GOGOI, CJI, NAVIN SINHA AND
                         K. M. JOSEPH, JJ.]
       Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.20(ii)(c) – Appellant was apprehended with two Gunny Bags on
his scooter which contained varying quantities of ‘Charas’ – Trial
Court acquitted the appellant on the grounds of non-compliance             C
with s.100(4) of Cr.P.C. and ss. 50, 52 and 57 of the NDPS Act, and
that the seal prepared at the time of seizure was not produced in the
Court – High Court reversed the acquittal and convicted appellant
u/s.20(ii)(c) of the NDPS Act – On appeal, held: The conclusion of
the trial court was perverse in view of the fact that two specimen         D
seal impressions were marked as Exhibits PH and PK – S.50 of
NDPS Act is not applicable as the recovery was not from the person
of the appellant but the gunny bags carried on the scooter – There
was no material to conclude that PW-5 and the other independent
witness were not respectable persons – There was no violation of
s.100(4) of Cr.P.C. – In any event, no prejudice on that account           E
was demonstrated – Further, s.52 & 57 of NDPS are directory in
nature, is of no avail to the appellant – Therefore, no reason to
interfere with the judgment of High Court.
       Narcotic Drugs and Psychotropic Substances Act – s.20(ii)(c)
– Conviction under – Appellant contended that PW-10-sub-inspector,         F
being the informant himself, was also the investigating officer, and
which alone vitiates the conviction and placed reliance upon Mohan
Lal v. State of Punjab (AIR 2018 SC 3853) – Held: If the facts in
Mohan Lal case were telling with regard to the prosecution, the
facts in the present case are equally telling with regard to the accused
                                                                           G
– Appellant has history of previous convictions – 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 case is not allowed to become
a spring board for acquittal in prosecutions prior to the same,
irrespective of all other considerations – Therefore, all pending          H
                                  707
708               SUPREME COURT REPORTS                  [2019] 2 S.C.R.


A     criminal prosecutions, trials and appeals prior to the law laid down
      in Mohan Lal shall continue to be governed by the individual facts
      of the case.
             Dismissing the appeals, the Court
             HELD: 1. Two samples of 25 gms. each were taken from
B     the two Gunny Bags and sealed with the seal ‘S’, and given to
      PW-5. PW-2-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
C     in any manner. [Para 6][711-H; 712-A-B]
             2. 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. PW-5 the independent witness
      who had signed the search and seizure documents but turned
D     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 of
      the Trial Court reveals that independent witness was present on
      that date to depose, but was bound down on objection from the
E     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
F     that PW-5 and the other independent witness 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. [Para 7][712-C-E-]
G
             4. The only issue surviving for consideration is with regard
      to the prosecution being vitiated because PW-10 was the
      informant as also the Investigating Officer, in view of Mohan Lal
      case. [Para 9][712-G]

H
  VARINDER KUMAR v. STATE OF HIMACHAL PRADESH                          709


       3. The paramount consideration being to interpret the law       A
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.
[Para 11][713-F]
                                                                       B
       4. 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 law-abiding citizen
or the potential offender. ‘Human rights’ are not only of the
accused but, extent apart, also of the victim, the symbolic member     C
of the society as the potential victim and the society as a whole.
[Para 12][713-G]
       5. Societal interest therefore mandates that the law laid
down in Mohan Lal case cannot be allowed to become a spring
board by an accused for being catapulted to acquittal, irrespective    D
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 case 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     E
convictions of the appellant also. This Court 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.
[Para 15][714-E, F]                                                    F
       6. The criminal justice delivery system, cannot be allowed
to veer exclusively to the benefit of the offender making it uni-
directional 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
                                                                       G
Mohan Lal case is not allowed to become a spring board for
acquittal in prosecutions prior to the same, irrespective of all
other considerations. Therefore all pending criminal prosecutions,
trials and appeals prior to the law laid down in Mohan Lal case
shall continue to be governed by the individual facts of the case.
[Para 18][716-C-D]                                                     H
710                SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A           Sonu alias Amar v. State of Haryana (2017) 8 SCC 570
            : [2017] 8 SCR 151 ; Harsh Dhingra v. State of
            Haryana and Others (2001) 9 SCC 550 : [2001] 3
            Suppl. SCR 446 – relied on.
            Mohan Lal v. State of Punjab AIR 2018 SC 3853 –
B           referred to.
                           Case Law Reference
      AIR 2018 SC 3853                 referred to              Para 4
      [2017] 8 SCR 151                 relied on                 Para 16

C     [2001] 3 Suppl. SCR 446          relied on                Para 17
             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos. 2450-2451 of 2010
             From the Judgment and Order dated 02.06.2010 and 22.07.2010
      of the High Court of Himachal Pradesh, Shimla in Criminal Appeal
D     No. 427 of 1996
              Dhruv Pall, Ajay Marwah, Mool Singh,Advs. for the Appellant.
              Abhinav Mukerji, AAG, Ms. Bihu Sharma, Ms. Purnima Krishna,
      Ms. Pratishtha Vij, Advs. for the Respondent.
              The Judgment of the Court was delivered by
E             NAVIN SINHA, J.
              1. 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
F     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, with
G     regard to independent witnesses. Further, there had been non-compliance
      with Sections 50, 52 and 57 of the NDPS Act, and that the seal prepared
      at the time of seizure and handed over to PW-5, Naresh Kumar had not
      been produced in the court.


H
   VARINDER KUMAR v. STATE OF HIMACHAL PRADESH                                  711
                [NAVIN SINHA, J.]

       3. The High Court, reversing the acquittal held that the seals           A
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
                                                                                B
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. PW-5, Naresh Kumar, the independent witness,             C
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. assumes importance. PW-10 Sub-            D
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            E
well reasoned and considered merits no interference. The appellant has
a previous history of convictions under the NDPS Act. The ground that
PW-10 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           F
to apply its mind. It has also not been pleaded in the appeal.
       6. We have considered the respective submissions. PW-10 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 PW-8, Shri
Jaipal Singh, Dy.S.P., C.I.D., Shimla. At 3.05 P.M. PW-7, Head Constable
                                                                                G
Surender Kumar stopped PW-5, Naresh Kumar and another 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’. PW-8, 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             H
712                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     gms. each were taken from the two Gunny Bags and sealed with the
      seal ‘S’, and given to PW-5. PW-2, 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
B
      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. PW-5 the independent witness who had signed
      the search and seizure documents but turned hostile, was duly confronted
C     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 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
D     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 PW-5 and the other independent witness Jeevan Kumar
E     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.
F             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.
              9. The only issue surviving for consideration is with regard to the
G
      prosecution being vitiated because PW-10 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
H     examine the issue.
   VARINDER KUMAR v. STATE OF HIMACHAL PRADESH                                    713
                [NAVIN SINHA, J.]

       10. In Mohan Lal (supra) our attention had been invited to the             A
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
                                                                                  B
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         C
       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,           D
       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            E
       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            F
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—
                                                                                  G
be it the law-abiding 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.

                                                                                  H
714                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A            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
B
      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.
C             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
D     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.
              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
E
      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
F     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
G     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
H             unless the judicial tool of “prospective overruling” is applied.
   VARINDER KUMAR v. STATE OF HIMACHAL PRADESH                                   715
                [NAVIN SINHA, J.]

       However, retrospective application of the judgment is not in the          A
       interest of administration of justice as it would necessitate the
       reopening of a large number of 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
                                                                                 B
       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             C
       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      D
       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            E
       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          F
       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 by this
                                                                                 G
       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         H
716                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A             subordinate forums which are bound to apply law declared by this
              Court are also duty-bound 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
B
              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
C     veer exclusively to the benefit of the offender making it uni-directional
      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
D     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.
              19. The present appeals lack merit and are therefore dismissed.

      Ankit Gyan                                                  Appeals dismissed.
E




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