Narcotic Drugs and Psychotropic Substances Act, 1985 – s.20 – Both the appellants were travelling on a motorcycle and one of them was with a backpack slung over his shoulders – A police team stopped and searched them – They discovered polythene bags weighing 3 Kg 100 gms containing charas – The prosecution examined nine witnesses to support their case of chance recovery, which included eight police officials and one independent witness, PW-3 – The appellant did not lead any defence evidence but propounded an alternative version and claimed that while returning from a nearby temple, they had given a lift to an unidentified third person – The backpack containing the recovered narcotics was claimed to be owned by the said stranger, who allegedly escaped from the spot – The trial Court acquitted the appellants holding that charges under the NDPS Act were not proved beyond reasonable doubt – The trial Court was also critical of the fact that the complainant, PW-8 himself was the investigating officer which caused serious prejudice to the fairness of the investigation – It held that no charas was recovered from the appellants as deposed by the independent witness, PW-3 – However, the High Court set aside the acquittal and convicted the appellants for possession of charas u/s. 20 of the NDPS Act and sentenced them to rigorous imprisonment for ten years – On appeal, held: The Constitution Bench of the Supreme Court in Mukesh Singh v. State (Narcotic Branch of Delhi) has authoritatively settled the law that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal – Thus, in the instant case there is no reason to draw any adverse inference against PW-8 himself investigating his complaint – Certain actions (or lack thereof) by the investigation or chinks in the prosecution case can’t be the sole basis for concluding bias – Further, the claim of appellants that seized contraband was carried by an unknown stranger is ex-facie fanciful and is without any evidence – Infact, this has bolstered the prosecution case that appellants were present on the spot and interaction with police had taken place and that search was not based on any prior information but was spontaneous and thus, it was a case of chance recovery – PW-3 himself claims that he was not present at the time of incident, his statement can at best be construed to mean that no charas was recovered in front of him, and not that no charas was recovered from the appellants at all – As correctly appreciated by the High Court in detail, nonexamination of independent witnesses would not ipso facto entitle one to seek acquittal – The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed re-appreciation of the entire evidence – Thus, there is no merit in the appeals and the respondent-State is directed to take appellants into custody to serve the remainder of their ten-year sentences.
Dismissing the appeals, the Court
HELD: Whether bias was caused by complainant also being the investigating officer?
1.1 Suffice to say that the law on this point is no longer res integra and the controversy, if any, has been set at rest by the Constitutional Bench of this Court in Mukesh Singh. The earlier position of law which allowed the solitary ground of the complainant also being the investigating officer, to become a spring board for an accused to be catapulted to acquittal, has been reversed. Instead, it is now necessary to demonstrate that there has either been actual bias or there is real likelihood of bias, with no sweeping presumption being permissible. [Para 10][1065-C-D]
1.2 Therefore, see no reason to draw any adverse inference against PW8 himself investigating his complaint. The appellants’ claim of bias stems from the purported delays, non-compliance of statutory mandates and non-examination of independent witness. In effect, the appellants are seeking to circuitously use the very same arguments which have individually been held by the High Court to be factually incorrect or legally irrelevant. Although in some cases, certain actions (or lack thereof) by the Investigating Officer might indicate bias; but mere deficiencies in investigation or chinks in the prosecution case can’t be the sole basis for concluding bias. The appellants have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. Further, such a huge quantity of charas could not have been planted against the appellants by the police on its own. [Para 11][1066-E-F]
Whether alternate version has been established and what is the effect of lack of independent witnesses?
2.1 The contention of the appellants that they are entitled to be acquitted on the ground of there being two varying versions of the same incident does not carry any weight. This Court may firstly clarify that the expression “reasonable doubt” is a welldefined connotation. It refers to the degree of certainty required of a court before it can make a legally valid determination of the guilt of an accused. These words are inbuilt measures to ensure that innocence is to be presumed unless the court finds no reasonable doubt of the guilt of the person charged. Reasonable doubt does not mean that proof be so clear that no possibility of error exists. In other words, the evidence must only be so conclusive that all reasonable doubts are removed from the mind of an ordinary person. [Para 14][1067-H; 1068-A-B]
2.2 Secondly, it is useful to point out that in their respective statements under Section 313, CrPC the appellants have claimed that when they were coming after visiting a temple, “a person obtained lift from us on vehicle”. When they reached Ani Bazar, the police officials demanded the documents of the vehicle and for that purpose they were taken to police station “along with the vehicle and in the meanwhile third person fled away from the place of the incident.” This claim that the seized contraband was being carried by an unknown stranger, who had mysteriously appeared on the side of the road seeking a lift and had equally incognizably vanished into thin air as soon as the motorcycle was stopped by the police is ex-facie fanciful, and is without even a shred of evidence. A critical appreciation of such version merely bolsters the prosecution case. The appellants effectively have ended up admitting that they were present on the spot; some interaction with the police had indeed taken place; that there was sufficient cause to stop the vehicle, and that such search was based not on any prior information but was spontaneous and thus, it was a case of chance recovery. [Para 16][1068-E-G]
2.3 As correctly appreciated by the High Court in detail, non-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heighted standard of care is imposed on the court in such instances but there is nothing to suggest that the High Court was not cognizant of this duty. Rather, the consequence of upholding the trial Court’s reasoning would amount to compulsory examination of each and every witness attached to the formation of a document. Not only is the imposition of such a standard of proof unsupported by statute but it is also unreasonably onerous in our opinion. The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed re-appreciation of the entire evidence. This Court sees no reason to disagree with such finding(s). [Para 18][1069-C-E]
Whether High Court erred in reversing acquittal in appeal?
3.1 There is no gainsaid that High Courts are well within their power to reverse an acquittal and award an appropriate sentence; though they cautiously exercise such powers in practice. Illustratively, a few permissible reasons which would necessitate such interference by the High Court include patent errors of law, grave miscarriage of justice, or perverse findings of fact. [Para 19][1069-F]
3.2 Here, the trial Court appreciated facts in a mechanical manner and dismissed the prosecution case based on a misinterpretation of law, particularly qua satisfying the burden of proof. Hence, there were more than enough reasons for the High Court to interfere with the acquittal and arrive at a different finding. [Para 20][1069-G-H]
Mukesh Singh v. State (Narcotic Branch of Delhi) (2020) SCC OnLine SC 700; K. Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355 : [1979] 2 SCR 363 – relied on.
Gyan Chand v. State of Rajasthan 1993 Cri LJ 3716; Mohan Lal v. State of Punjab (2018) 17 SCC 627: [2018] 9 SCR 1006; State of Himachal Pradesh v. Pawan Kumar (2005) 4 SCC 350 : [2005] 3 SCR 417 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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