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mere non-joining of an independent witness – not fatal to the prosecution = Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.= In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. – Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.

 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40594

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2302 of 2010

 
Gian Chand & Ors.
…Appellants
Versus

 
State of Haryana
…Respondent
J U D G M E N T

Dr. B.S. Chauhan, J.

 
1. This appeal has been filed against the judgment and order dated
4.11.2008 passed by the High Court of Punjab and Haryana at Chandigarh
in Criminal Appeal No. 392-SB of 2001, by which it has affirmed the
judgment and order dated 2.2.2001 passed by the trial court, Sirsa by
which the appellants were convicted under the provisions of Section 15
of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as the ‘Act’). By that order, they were sentenced to
undergo RI for a period of 10 years each and to pay a fine of rupees 1
lakh each, and in default of payment of fine, to undergo further RI
for a period of one year.
2. Facts and circumstances giving rise to this appeal are that:
A. On 5.9.1996, at about 2.15 a.m., Bhan Singh, ASI of Police
Station, Rania alongwith other police officials was present in the
village Chakka Bhuna in an official jeep. The police party saw a jeep
coming at high speed from the opposite direction and asked the said
jeep to stop. However, instead of stopping, the driver accelerated
the speed of the jeep. This created suspicion in the minds of the
police officials. Thus, they chased the jeep. The occupants of the
jeep took a U-turn and in that process the jeep struck the wall of a
house in the village. The three occupants of the jeep tried to run
away but they were caught by the police. The said three occupants
were later identified as the appellants. They were asked whether they
would like to be searched before a Gazetted officer or a Magistrate,
however, they chose the former. The Deputy Superintendent of Police
was called and a search was conducted in his presence. The vehicle had
10 bags containing 41 kg poppy husk each. The police party took
samples of 200 grams of poppy husk from each bag and the same was
sealed by the Dy.S.P.
B. On the basis of same, an FIR was lodged on 5.9.1996 itself at
3.15 a.m. at the Rania Police Station against the appellants-accused.
After investigation, a chargesheet was filed against them and the
appellants claimed trial. Hence, the trial commenced.
C. The prosecution led the evidence in support of its case and also
produced the case property in the court alongwith the damaged jeep in
which the appellants were carrying 410 kg. poppy husk. In the FSL
report all positive results were shown. Appellants did not lead any
evidence in defence and pleaded that they had falsely been implicated
in the crime.
D. After conclusion of the trial, the appellants were convicted and
sentenced as referred to hereinbefore vide judgment and order dated
2.2.2001, and the said judgment and order has been affirmed by the
High Court vide its judgment and order dated 4.11.2008.
Hence, this appeal.
3. Mr. J.P. Dhanda, learned counsel appearing for the appellants
has submitted that no independent witness was examined by the
prosecution in the case, though a large number of people had gathered
at the place of the alleged incident which led to the appellants-
accused being apprehended. No independent witness was involved in
preparation of the panchnama of the recovered substances. Further, the
prosecution failed to prove that the appellants-accused were in
conscious possession of the contraband material. This incriminating
circumstance had not even been put to the appellants-accused while
recording their statements under Section 313 of Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). The appellants
have already served about 8 years of sentence. Thus, the appeal
deserves to be allowed.
4. Per contra, Mr. Brijender Chahar, learned senior counsel
appearing for the State has opposed the appeal contending that even if
some persons had gathered at the place of occurrence when the
appellants were apprehended, nobody was willing to become a witness.
Therefore, the prosecution could not examine any independent witness.
The case of the prosecution does not deserve to get disbelieved simply
because police officials themselves are the witnesses, nor there is
any requirement in law that in every case an independent witness
should be examined. Further all incriminating material was put to the
appellants-accused while recording their statements under Section 313
Cr.P.C. Once it is established that an accused is in possession of
contraband substance, the burden to prove that he had no knowledge of
the same, shifts to the accused to prove the same. More so, the
accused is supposed to explain his conduct while making his statement
under Section 313 Cr.P.C. particularly where there are certain
presumptions against him under Section 35 of the Act. There are
concurrent findings of fact recorded by the courts below. Thus, no
interference is called for and the appeal is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
6. No dispute has been raised regarding the poppy husk recovered
from the jeep or the damaged jeep. Further, the appellants did not
challenge the result shown in the FSL report wherein the qualitative
tests in respect of Meconic Acid, Morphine, Codeine, Thebaine,
Papaverine and Narcotine had all been shown as positive.
7. All three occupants, i.e. the appellants abandoned the vehicle
just after it dashed against the wall and made a desperate attempt to
escape but were apprehended by the police party. The Trial Court
examined the matter elaborately and after appreciating the evidence of
the witnesses, came to the conclusion that there were no discrepancies
in the statements of the three officials, i.e. prosecution witnesses.
Their statements inspired tremendous confidence and thus, there was no
reason for the court to discard the testimony of the official
witnesses. The grievance had also been raised before the Trial Court
that the chit carrying contents of case property was not available on
the bags. However, this did not give any benefit to the accused as
there was overwhelming evidence on record to prove that the seizure of
ten bags had actually been made from the accused. Further the
contents of the samples sent for chemical analysis gave positive
results on analysis in the laboratory.
8. The High Court dealt with the issue elaborately regarding
knowledge i.e. conscious possession, and held as under:
“There were only three occupants in the jeep, at the relevant
time. As many as 10 bags, each containing 41 kgs. Poppy husk,
were lying in the jeep. It was not a small quantity of poppy
husk,.….and could escape the notice of the accused. It was a
big haul of poppy husk, ……The accused were having special means
of knowledge, with regard to the bags, containing poppy husk,
lying in the jeep. It was for the accused to explain, as to how
the bags, containing poppy husk, were being transported. Not
only this, the conduct of the accused, is also relevant, in this
case. They instead of stopping the jeep, when the signal was
given, by the policy party, accelerated the speed thereof and
sped away towards Village Keharwala. It was only after hot
chase, given by the members of the police party, in their jeep,
that the driver of the jeep got nervous, could not properly
negotiate the turn and lost control, as a result whereof, the
said jeep struck against the wall and stopped. In case, there
was no contraband, in the jeep, and the accused were not in the
knowledge of the same then what was the necessity of speeding
away the jeep, was for them to explain. This material
circumstance goes against them. Under these circumstances, it
could be said that they were in possession of, and in control
over the bags, lying in the jeep.
Once the possession of the accused, and their control over
the contraband, was proved, then statutory presumption under
Section 54 and 35 of the Act, operated against them, that they
were in conscious possession thereof. Thereafter, it was for
them, to rebut the statutory presumption, by leading cogent and
convincing evidence. However, the appellants, failed to rebut
the said presumption either during the course of cross-
examination of the prosecution witnesses, or by leading defence
evidence.”
(Emphasis added)

 
9. Further, in their statement under Section 313 Cr.P.C., the
appellants took the plea of false implication only and the appellants
miserably failed to rebut the statutory presumption, referred to
above. The High Court further held as under:-
“In the instant case, no plea was taken up by the accused,
during the course of trial or in their statements, under Section
313 Cr.P.C. that they were not the occupants of the jeep. No
plea was taken by the accused that they were not aware of the
contents of the bags, lying in the jeep. No plea was taken up
by the driver of the jeep that he was taking the bags,
containing poppy husk, as per the directions of the owner
thereof, and did not know, as to what was contained in the bags.
No plea was taken up, by the other occupants, of the jeep, that
they were merely labourers engaged for loading and unloading the
bags, containing poppy husk, at the destination. No plea was
taken up by the accused, other than the driver, sitting in the
jeep, that they only took lift therein, and as such were
passengers. They did not take up the plea, that the driver of
the jeep knew them earlier and since they could not find any
public transport, for going to their villages, he gave them lift
therein on friendly basis. The facts of the cases, relied upon
by the Counsel for the appellants, and referred to, in this
paragraph, being distinguishable, from the facts of the instant
case, no help can be drawn by the counsel for the appellants
therefrom. In this view of the matter, the submission of the
counsel for the appellants, being without merit, must fail, and
the same stands rejected.”

 
10. So far as the condition of the property is concerned, the court
observed that “as the witnesses have been examined after four years
from the date of recovery. The case property remained lying in the
malkhana. On account of shortage of space, in the malkhanas, the case
properties cannot be stacked properly and the bags, containing poppy
husk, underwent the process of decay, however, did not mean that the
case property produced in the court, did not relate to the instant
case.” There was nothing on record to show that the said case
property had been tampered with.
11. The effect of not cross-examining a witness on a particular
fact/circumstance has been dealt with and explained by this Court in
Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. &
Ors., AIR 2013 SC 1204 observing as under:
“31. Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of
it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.”
(Emphasis supplied)
(See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC
3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and
Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181)
12. The defence did not put any question to the Investigating
Officer in his cross-examination in respect of missing chits from the
bags containing the case property/contraband articles. Thus, no
grievance could be raised by the appellants in this regard.
13. The appellants were found travelling in a jeep at odd hours in
the night and the contraband material was found. Therefore, the
question arises whether they can be held to have conscious possession
of the contraband substances.
This Court dealt with this issue in Madan Lal & Anr. v. State of
Himachal Pradesh AIR 2003 SC 3642, observing that Section 20(b) makes
possession of contraband articles an offence. Section 20 appears in
Chapter IV of the Act which relates to offences and penalties for
possession of such articles. Undoubtedly, in order to bring home the
charge of illicit possession, there must be conscious possession. The
expression ‘possession’ has been held to be a polymorphous term having
different meanings in contextually different backgrounds. Therefore,
its definition cannot be put in a straitjacket formula. The word
‘conscious’ means awareness about a particular fact. It is a state of
mind which is deliberate or intended. Possession in a given case need
not be actual physical possession and may be constructive i.e. having
power and control over the article in case in question, while the
person to whom physical possession is given holds it subject to that
power or control. The Court further held as under:

“Once possession is established the person who claims that it
was not a conscious possession has to establish it, because how
he came to be in possession is within his special knowledge.
Section 35 of the Act gives a statutory recognition of this
position because of presumption available in law. Similar is the
position in terms of Section 54 where also presumption is
available to be drawn from possession of illicit articles….It
has not been shown by the accused-appellants that the possession
was not conscious in the logical background of Sections 35 and
54 of the Act.” (Emphasis added)

 

14. From the conjoint reading of the provisions of Section 35 and 54
of the Act, it becomes clear that if the accused is found to be in
possession of the contraband article, he is presumed to have committed
the offence under the relevant provisions of the Act until the
contrary is proved. According to Section 35 of the Act, the court
shall presume the existence of mental state for the commission of an
offence and it is for the accused to prove otherwise.

Thus, in view of the above, it is a settled legal proposition
that once possession of the contraband articles is established, the
burden shifts on the accused to establish that he had no knowledge of
the same.

15. Additionally, it can also be held that once the possession of
the contraband material with the accused is established, the accused
has to establish how he came to be in possession of the same as it is
within his special knowledge and therefore, the case falls within the
ambit of the provisions of Section 106 of the Evidence Act, 1872
(hereinafter referred to as `the Act 1872’).
16. In State of West Bengal v. Mir Mohammad Omar & Ors. etc. etc.,
AIR 2000 SC 2988, this Court held that if the fact is specifically in
the knowledge of any person, then the burden of proving that fact is
upon him. It is impossible for the prosecution to prove certain facts
particularly within the knowledge of accused. Section 106 is not
intended to relieve the prosecution of its burden to prove the guilt
of the accused beyond reasonable doubt. But the Section would apply to
cases where the prosecution has succeeded in proving facts from which
a reasonable inference can be drawn regarding the existence of certain
other facts, unless the accused by virtue of his special knowledge
regarding such facts, failed to offer any explanation which might
drive the Court to draw a different inference. Section 106 of the
Evidence Act is designed to meet certain exceptional cases, in which,
it would be impossible for the prosecution to establish certain facts
which are particularly within the knowledge of the accused.

(See also: Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404;
Gunwantlal v. The State of Madhya Pradesh AIR 1972 SC 1756; Sucha
Singh v. State of Punjab AIR 2001 SC 1436; Sahadevan @ Sagadevan v.
State rep. by Inspector of Police, Chennai AIR 2003 SC 215; Durga
Prasad Gupta v. The State of Rajasthan thr. CBI, (2003) 12 SCC 257;
Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747; Manu Sao v.
State of Bihar (2010) 12 SCC 310; Neel Kumar alias Anil Kumar v. State
of Haryana (2012) 5 SCC 766).

17. Learned counsel for the appellants has placed much reliance
upon the judgment of this Court in State of Punjab v. Hari Singh &
Ors., AIR 2009 SC 1966, wherein placing reliance upon the earlier
judgment in Avtar Singh & Ors. v. State of Punjab, AIR 2002 SC 3343,
it was held that if the incriminating material i.e., the issue
relating to possession had not been put to the accused under Section
313 Cr.P.C. the principles of natural justice stand violated and the
judgment stands vitiated.
18. So far as the judgment in Avtar Singh (supra) is concerned, it
has been considered by this Court in Megh Singh v. State of Punjab AIR
2003 SC 3184. The Court held that the circumstantial flexibility, one
additional or different fact may make a world of difference between
conclusions in two cases or between two accused in the same case. Each
case depends on its own facts and a close similarity between one case
and another is not enough because a single significant detail may
alter the entire aspect. It is more pronounced in criminal cases where
the backbone of adjudication is fact based. In Avtar Singh (supra),
the contraband articles were being carried in a truck. There were
several persons in the truck. Some of them fled and it could not be
established by evidence that anyone of them had conscious possession.
While the accused was examined under Section 313 Cr.P.C. the essence
of accusations was not brought to his notice, particularly with
respect to the aspect of possession. It was also noticed that the
possibility of the accused persons being labourers of the truck was
not ruled out by evidence. Since the decision was rendered on special
consideration of several peculiar factual aspects specially noticed in
that case, it cannot be of any assistance in all the cases.
19. Therefore, it is evident that Avtar Singh (supra) does not lay
down the law of universal application as it had been decided on its
own facts.
20. So far as Section 313 Cr.P.C. is concerned, undoubtedly, the
attention of the accused must specifically be brought to inculpable
pieces of evidence to give him an opportunity to offer an explanation
if he chooses to do so. A three-Judge Bench of this Court in Wasim
Khan v. The State of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh
& Anr. v. State of Punjab, AIR 1974 SC 1256 held that every error or
omission in compliance of the provisions of Section 342 of the old
Cr.P.C. does not necessarily vitiate trial. The accused must show
that some prejudice has been caused or was likely to have been caused
to him.
21. In Asraf Ali v. State of Assam, (2008) 16 SCC 328, a similar
view has been reiterated by this Court observing that all material
circumstances appearing in the evidence against the accused are
required to be put to him specifically and failure to do so amounts to
serious irregularity vitiating trial, if it is shown that the accused
was prejudiced.
22. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR
1973 SC 2622, a three-Judge Bench of this Court held that “basic
fairness of a criminal trial may gravely imperil the validity of the
trial itself, if consequential miscarriage of justice has flowed.”
However, where such an omission has occurred it does not ipso facto
vitiate the proceedings and prejudice occasioned by such defect, must
be established by the accused.
23. In Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC
200, after considering large number of cases on the issue, this Court
held as under:-
“Thus, it is evident from the above that the provisions of
Section 313 Cr. P.C make it obligatory for the court to question
the accused on the evidence and circumstances against him so as
to offer the accused an opportunity to explain the same. But, it
would not be enough for the accused to show that he has not been
questioned or examined on a particular circumstance, instead he
must show that such non-examination has actually and materially
prejudiced him and has resulted in the failure of justice. In
other words, in the event of an inadvertent omission on the part
of the court to question the accused on any incriminating
circumstance cannot ipso facto vitiate the trial unless it is
shown that some material prejudice was caused to the accused by
the omission of the court”

(Emphasis added)

 
24. In the instant case the issue relating to non-compliance of the
provisions of Section 313 Cr.P.C. has not been raised before the High
Court, and it is raised for the first time before this Court. Learned
counsel for the appellants could not point out what prejudice has been
caused to them if the fact of “conscious possession” has not been put
to them. Even otherwise such an issue cannot be raised in the existing
facts and circumstances of the case wherein the burden was on the
accused to show how the contraband material came to be found in the
vehicle which was driven by one of them and the other two were
travelling in that vehicle.
25. The next question for consideration does arise as to whether it
is necessary to examine an independent witness and further as to
whether a case can be seen with doubt where all the witnesses are from
the police department.
In Rohtash v. State of Haryana JT 2013 (8) SC 181, this court
considered the issue at length and after placing reliance upon its
earlier judgments came to the conclusion that where all witnesses are
from the police department, their depositions must be subject to
strict scrutiny. However, the evidence of police officials cannot be
discarded merely on the ground that they belong to the police force,
and are either interested in the investigating or the prosecuting
agency. However, as far as possible the corroboration of their
evidence on material particulars should be sought. The Court held as
under:
“Thus, a witness is normally considered to be independent,
unless he springs from sources which are likely to be tainted
and this usually means that the said witness has cause, to bear
such enmity against the accused, so as to implicate him falsely.
In view of the above, there can be no prohibition to the effect
that a policeman cannot be a witness, or that his deposition
cannot be relied upon.”
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir
Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR
1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of
Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v.
Superintendent of Customs, AIR 2007 SC 2040).

 

 

 
26. In State, Govt. of NCT of Delhi v. Sunil & Anr. (2001) 1 SCC
652, this Court examined a similar issue in a case where no person had
agreed to affix his signature on the document. The Court observed
that it is an archaic notion that actions of the police officer should
be viewed with initial distrust. At any rate, the court cannot begin
with the presumption that police records are untrustworthy. As a
proposition of law the presumption should be the other way around. The
wise principle of presumption, which is also recognised by the
legislature, is that judicial and official acts are regularly
performed. Hence, when a police officer gives evidence in court that a
certain article was recovered by him on the strength of the statement
made by the accused it is open to the court to believe that version to
be correct if it is not otherwise shown to be unreliable. The burden
is on the accused, through cross-examination of witnesses or through
other materials, to show that the evidence of the police officer is
unreliable. If the court has any good reason to suspect the
truthfulness of such records of the police the court could certainly
take into account the fact that no other independent person was
present at the time of recovery. But it is not a legally approvable
procedure to presume that police action is unreliable to start with,
nor to jettison such action merely for the reason that police did not
collect signatures of independent persons in the documents made
contemporaneous with such actions.
27. In Appabhai & Anr. v. State of Gujarat AIR 1988 SC 696, this
court dealt with the issue of non-examining the independent witnesses
and held as under:
“The prosecution case cannot be thrown out or doubted on that
ground alone. Experience reminds us that civilized people are
generally insensitive when a crime is committed even in their
presence. They withdraw both from the victim and the vigilante.
They keep themselves away from the Court unless it is
inevitable. They think that crime like civil dispute is between
two individuals or parties and they should not involve
themselves. This kind of apathy of the general public is indeed
unfortunate, but it is there everywhere whether -in village
life, towns or cities. One cannot ignore this handicap with
which the investigating agency has to discharge its duties.”
28. The principle of law laid down hereinabove is fully applicable
to the facts of the present case. Therefore, mere non-joining of an
independent witness where the evidence of the prosecution witnesses
may be found to be cogent, convincing, creditworthy and reliable,
cannot cast doubt on the version forwarded by the prosecution if there
seems to be no reason on record to falsely implicate the appellants.

 

 
29. In the instant case at the time of incident some villagers had
gathered there. The Investigating Officer in his cross-examination has
made it clear that in spite of his best persuasion, none of them were
willing to become a witness. Therefore, he could not examine any
independent witness.
Section 114 of the Act 1872 gives rise to the presumption that
every official act done by the police was regularly performed and such
presumption requires rebuttal. The legal maxim omnia praesumuntur rite
it dowee probetur in contrarium solenniter esse acta i.e., all the
acts are presumed to have been done rightly and regularly, applies.
When acts are of official nature and went through the process of
scrutiny by official persons, a presumption arises that the said acts
have regularly been performed.
In view of the above, the submissions of the learned
counsel for the appellants in this regard, are held to be without any
substance.
?

 
30. In view of the above, the appeal does not present special
features warranting any interference by this court. Appeal is devoid
of any merit and is, accordingly, dismissed.

 
…………………………………….J. (DR.
B.S. CHAUHAN)

 

………………………………………….J.
(S.A. BOBDE)

NEW DELHI;
July 23, 2013

 

 

 

 

 

 

 

 

 

 

 

———————–
22

 

 

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