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 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 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 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, 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 – 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 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 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 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 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 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 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-]
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]
3. 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 of the Court was also not invited to the need for considering the carving out of exceptions. [Para 11][713-F]
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 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 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 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]
6. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional 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 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]
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 – 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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