Chattisgarh High Court
Veer Pradhan And Anr vs State Of Chhattisgarh on 17 January, 2023
Cr.A.No.1585/2017 & 1046/2013
Page 1 of 18
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1585 of 2017
{Arising out of judgment dated 3-10-2013 in Special Case No.2/2010 of
the Special Judge (NDPS Act), Raigarh}
Teej Ram Sahu, S/o Sant Ram Sahu, aged about 26 years, R/o
Gerwani, P.S. Bilaigarh, District Raipur (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through the Station House Officer, Police
Station Sarangarh, Civil and Revenue District Raigarh (C.G.)
---- Respondent
AND
Criminal Appeal No.1046 of 2013
1. Veer Pradhan, S/o Padamnath Pradhan, aged about 61 years,
Occupation Labour, R/o Kakudipali, Police Station Sambalpur, Civil
& Revenue District Sambalpur (Orissa)
2. Nakul Bag, S/o Arun Bag, aged about 58 years, Occupation Driver,
R/o Bhejitikra, Bhijradih, Police Station Sambalpur, Civil & Revenue
District Sambalpur (Orissa)
---- Appellants
Versus
State of Chhattisgarh, Through Station House Officer, Police
Station Sarangarh, District Raigarh (C.G.)
---- Respondent
--------------------------------------------------------------------------------------------------
For Appellant in Cr.A.No.1585/2017: -
Mr. Satya Prakash Verma, Advocate.
For Appellants in Cr.A.No.1046/2013: -
Mr. Manoj Kumar Jaiswal, Advocate.
For State / Respondent: -
Mr. Ashish Tiwari, Government Advocate and Mr. Soumya
Rai, Panel Lawyer.
--------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Radhakishan Agrawal, JJ.
Cr.A.No.1585/2017 & 1046/2013
Judgment On Board
(17/01/2023)
Sanjay K. Agrawal, J.
1. Teejram Sahu - sole appellant in Cr.A.No.1585/2017 and two
appellants in Cr.A.No.1046/2013 namely Veer Pradhan & Nakul
Bag have preferred these two criminal appeals under Section
374(2) of the CrPC against their conviction by the impugned
judgment dated 3-10-2013 by which they have been convicted for
offence under Section 20(b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') and
sentenced to undergo rigorous imprisonment for twelve years and
pay fine of ₹ 1,25,000/- each, in default of payment of fine to further
undergo additional rigorous imprisonment for three years.
2. Since both the criminal appeals have arisen out of one and same
judgment dated 3-10-2013 passed by the Special Judge (NDPS
Act), Raigarh, in one Special Case No.2/2010 and since common
question of fact and law is involved in both the appeals, they have
been clubbed together, heard together and are being disposed of
by this common judgment.
3. Case of the prosecution, in short, is that on 24-1-2010 at 3.45 a.m.,
during night patrolling, ASI R.K. Patel informed Inspector H.P.
Singh (PW-7) that during night patrolling near Nagar Palika
Sarangarh Square, they apprehended a white Ambassador Car
containing illegal contraband and tried to stop the same, however,
the car driver took the car towards Sarsiva Road upon which the
car was chased with the apprehension of containing some illegal
contraband and the said car was halted by overtaking near Rani
Cr.A.No.1585/2017 & 1046/2013
Sagar and interrogation was conducted suspecting transportation of
Narcotic drug. The Constable and the Head Constable, who were
on town patrolling, came to the place of incident along with two
witnesses namely Sher Bahadur (PW-2) & Ramesh Bahadur (PW-
3) in front of whom driver of the car namely Nakul Bag and other
accused Babulal, who was sitting inside the car bearing registration
No.OR-15/A-6726, were interrogated and the car boot was opened
by Babulal and was thereafter searched on which two white colour
plastic bags were found containing contraband substance which
were opened in front of the witnesses and the accused persons and
the same was seized vide Ex.P-1. Thereafter, at 4.10 a.m., in front
of the seizure witnesses namely Sher Bahadur (PW-2) & Ramesh
Bahadur (PW-3), the said contraband was identified as Ganja vide
Ex.P-2. Thereafter, at 4.30 a.m., weighing machine of Bodhram
(PW-4) was physically verified vide Ex.P-3 and at 4.35 a.m., the
contraband was weighed vide Ex.P-4 on which it was found that the
first bag was containing 31.400 Kgs. of Ganja and the second bag
was containing 7.900 Kgs. of Ganja, total weighing about 39.300
Kgs.. Thereafter, the seized material was identified as contraband
by sniffing and by burning and the identification panchnama was
recorded vide Ex.P-2 out of which 100 gms. of sample was taken
out from each bag and sealed separately and sent for chemical
analysis to the Forensic Science Laboratory vide Ex.P-26 through
the Office of the Superintendent of Police, Raigarh on 25-1-2010.
Report received from the FSL - Ex.P-29 clearly confirms the
contraband article as Ganja. On the same day i.e. 24-1-2010 at
Cr.A.No.1585/2017 & 1046/2013
4.50 a.m., a small diary was seized from accused Teejram Sahu
vide Ex.P-6 wherein certain information regarding supply of Ganja
and rate was mentioned which was duly recorded in the seizure
memo. From accused Veer Pradhan, a pocket diary was seized
vide Ex.P-8 in which some phone numbers were written in Oriya
Language. Thereafter, at 5.40 a.m., first information report (FIR)
Ex.P-19 was registered and information of offence was sent to the
Judicial Magistrate First Class, Sarangarh vide Ex.P-20. The report
of the FSL was received vide Ex.P-29 wherein the contraband
material was found to be Ganja and thus proved to be contraband.
Thereafter, after usual and due investigation, the appellants were
charge-sheeted for offence under Section 20(b)(ii)(C) of the NDPS
Act before the Special Court (NDPS Act), Raigarh for hearing and
disposal in accordance with law.
4. The prosecution, in order to bring home the offence, has examined
as many as 7 witnesses and exhibited 29 documents Exs.P-1 to P-
29. The appellants abjured the guilt and entered into defence. They
did not examine any witness and exhibited no document at their
instance.
5. The Special Court after considering ocular, oral and documentary
evidence on record, proceeded to convict and sentence the
appellants in the manner mentioned in the opening paragraph of
this judgment against which these appeals have been preferred
holding that the appellants were found in conscious possession of
39.300 Kgs. of Ganja and the provisions contained in the NDPS Act
have been religiously and consciously complied with.
Cr.A.No.1585/2017 & 1046/2013
6. Mr. Satya Prakash Verma, learned counsel appearing in Cr.A.
No.1585/2017 on behalf of appellant Teejram Sahu, would submit
that Section 25 of the NDPS Act has not been complied with and
the prosecution has not proceeded with the owner of the vehicle,
similarly Section 42 has not been complied with. He would further
submit that no independent proceeding has been initiated and the
Sub-Divisional Officer (Police) has not been informed about the
proceeding so conducted, similarly, Sections 54 & 55 of the NDPS
Act have not been complied with. He would lastly submit that
panch witnesses Sher Bahadur (PW-2) & Ramesh Bahadur (PW-3),
who are material panch witnesses of seizure, measurement,
examination of the Narcotic drug and identification, have turned
hostile and they have not supported the case of the prosecution,
therefore, the appeal of Teejram Sahu deserves to be allowed and
conviction & sentences imposed upon him are liable to be set
aside.
7. Mr. Manoj Kumar Jaiswal, learned counsel appearing for appellants
Veer Pradhan & Nakul Bag in Cr.A.No.1046/2013, would submit
that Sher Bahadur (PW-2), Ramesh Bahadur (PW-3) & Bodhram
(PW-4) have turned hostile and have not supported the case of the
prosecution, therefore, the prosecution has failed to prove the case
beyond reasonable doubt and as such, the appeal deserves to be
dismissed.
8. Mr. Verma and Mr. Jaiswal, learned counsel appearing for the
appellants, would rely upon the decisions of the Supreme Court in
Cr.A.No.1585/2017 & 1046/2013
the matters of Kishan Chand v. State of Haryana1, Khekh Ram v.
State of H.P.2, Avtar Singh and others v. State of Punjab 3 and
Vijaysinh Chandubha Jadeja v. State of Gujarat4 in support of their
contentions.
9. Mr. Ashish Tiwari and Mr. Soumya Rai, learned State counsel,
would support the impugned judgment and submit that the
prosecution has been able to prove the case against the appellants
beyond reasonable doubt and the trial Court has rightly convicted
and sentenced them, as such, the appeals deserve to be
dismissed. They would rely upon the decisions of the Supreme
Court in the matters of Mohan Lal v. State of Rajasthan5, Makhan
Singh v. State of Haryana6 and Rizwan Khan v. State of
Chhattisgarh7 to buttress their submission.
10. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
11. It is pertinent to mention here that Babulal (A-1) had preferred Cr.A.
No.550/2014 which stood abated on account of his death by order
dated 2-12-2022.
12. Section 20(b)(ii)(C) of the NDPS Act provides as under:-
"20. Punishment for contravention in relation to cannabis
plant and cannabis.-Whoever, in contravention of any
provisions of this Act or any rule or order made or
condition of licence granted thereunder,-
1 (2013) 2 SCC 502
2 (2018) 1 SCC 202
3 (2002) 7 SCC 419
4 (2011) 1 SCC 609
5 (2015) 6 SCC 222
6 (2015) 12 SCC 247
7 (2020) 9 SCC 627
Cr.A.No.1585/2017 & 1046/2013
(a) xxx xxx xxx
(b) produces, manufactures, possesses, sells,
purchases, transports, imports, inter-State, exports
inter-State or uses cannabis, shall be punishable-
(i) xxx xxx xxx
(ii) where such contravention relates to sub-clause
(b),-
(A) and (B) xxx xxx xxx
(C) and involves commercial quantity, with
rigorous imprisonment for a term which shall
not be less than ten years but which may
extend to twenty years and shall also be liable
to fine which shall not be less than one lakh
rupees but which may extend to two lakh
rupees.
Provided that the court may, for reasons to
be recorded in the judgment, impose a fine
exceeding two lakh rupees."
13. A careful perusal of the aforesaid provisions would show that
whoever in contravention of this Act possesses, transports
cannabis shall be punishable and where the quantity of ganja is
commercial quantity, the accused shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years but
which may extend to twenty years and shall also be liable to fine
which shall not be less than one lakh rupees but which may extend
to two lakh rupees.
14. It would be appropriate to notice Section 42 of the NDPS Act, which
states as under :-
"42. Power of entry, search, seizure and arrest without
warrant or authorisation. - (1) Any such officer (being an
officer superior in rank to a peon, sepoy or constable) of
the departments of central excise, narcotics, customs,
Cr.A.No.1585/2017 & 1046/2013
revenue intellegence or any other department of the
Central Government including para-military forces or
armed forces as is empowered in this behalf by general
or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon,sepoy
or constable) of the revenue, drugs control, excise, police
or any other department of a State Government as is
empowered in this behalf by general or special order of
the State Government, if he has reason to believe from
persons knowledge or information given by any person
and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act
has been committed or any document or other article
which may furnish evidence of the commission of such
offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset, -
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other article
and any animal or conveyance which he has reason
to believe to be liable to confiscation under this Act
and any document or other article which he has
reason to believe may furnish evidence of the
commission of any offence punishable under this Act
or furnish evidence of holding any illegally acquired
property which is liable for seizure of freezing or
forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act:
Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances, granted under this
Act or any rule or order made thereunder, such power
Cr.A.No.1585/2017 & 1046/2013
shall be exercised by an officer not below the rank of
sub-inspector :
Provided further that if such officer has reason to
believe that a search warrant or authorisation cannot be
obtained without affording opportunity for the
concealment of evidence or facility for the escape of an
offender, he may enter and search such building,
conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his
belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official
superior."
15. Section 42 of the NDPS Act came up for consideration before the
Constitution Bench of the Supreme Court in the matter of Karnail
Singh v. State of Haryana8 in which their Lordships considered the
statutory requirement of writing down and conveying information to
superior officer prior to entry, search and seizure, while resolving
the conflict between two earlier decisions rendered by the Supreme
Court in the matters of Abdul Rashid Ibrahim Mansuri v. State of
Gujarat9 and Sajan Abraham v. State of Kerala10 and held that
whether there is adequate or substantial compliance with Section
42 or not is a question of fact to be decided in each case and while
total non-compliance with requirements of Sections 42(1) and (2) is
impermissible, delayed compliance with satisfactory explanation
about the delay will be acceptable compliance with Section 42.
Their Lordships further held that non-compliance of Section 42 of
8 (2009) 8 SCC 539
9 (2000) 2 SCC 513
10 (2001) 6 SCC 692
Cr.A.No.1585/2017 & 1046/2013
the NDPS Act may not vitiate the trial if it does not cause any
prejudice to the accused and observed in paragraph 35 as under:-
"35. In conclusion, what is to be noticed is that Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the requirements of Sections 42(1)
and 42(2) need not be fulfilled at all. The effect of the two
decisions was as follows :
(a) The officer on receiving the information (of the nature
referred to in Sub-section (1) of section 42) from any
person had to record it in writing in the register
concerned and forthwith send a copy to his immediate
official superior, before proceeding to take action in
terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the
move either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
immediate action and any delay would have resulted in
the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing
the information given to him, in such a situation, he could
take action as per clauses (a) to (d) of section 42(1) and
thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same to
the official superior.
(c) In other words, the compliance with the requirements
of Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally precede the entry,
search and seizure by the officer. But in special
circumstances involving emergent situations, the
recording of the information in writing and sending a copy
thereof to the official superior may get postponed by a
reasonable period, that is after the search, entry and
seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance of section 42. To
illustrate, if any delay may result in the accused escaping
Cr.A.No.1585/2017 & 1046/2013
or the goods or evidence being destroyed or removed,
not recording in writing the information received, before
initiating action, or non-sending a copy of such
information to the official superior forthwith, may not be
treated as violation of section 42. But if the information
was received when the police officer was in the police
station with sufficient time to take action, and if the police
officer fails to record in writing the information received,
or fails to send a copy thereof, to the official superior,
then it will be a suspicious circumstance being a clear
violation of section 42 of the Act. Similarly, where the
police officer does not record the information at all, and
does not inform the official superior at all, then also it will
be a clear violation of section 42 of the Act. Whether
there is adequate or substantial compliance with section
42 or not is a question of fact to be decided in each case.
The above position got strengthened with the
amendment to section 42 by Act 9 of 2001."
16. Their Lordships of the Supreme Court have clearly held in
paragraph 35(d) of Karnail Singh (supra) that while total non-
compliance of requirements of sub-sections (1) and (2) of Section
42 is impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable compliance of
Section 42. If any delay may result in the accused escaping or the
goods or evidence being destroyed or removed, not recording in
writing the information received, before initiating action, or non-
sending a copy of such information to the official superior forthwith,
may not be treated as violation of Section 42. But if the information
was received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to record
in writing the information received, or fails to send a copy thereof, to
the official superior, then it will be a suspicious circumstance being
a clear violation of section 42 of the Act. The principle of law laid
Cr.A.No.1585/2017 & 1046/2013
down in Karnail Singh (supra) has further been followed by the
Supreme Court in the matter of Boota Singh v. State of Haryana11.
17. Reverting to the facts of the case in light of the aforesaid principles
of law laid down by the Supreme Court, so far as non-compliance
of Section 42(2) of the NDPS Act is concerned, it has been brought
to our notice by the learned State counsel that vide Ex.P-12C,
which is the copy of roznamcha sanha and which has been proved
by Narendra Kumar Tiwari (PW-5), that information has been sent
to the Sub-Divisional Officer (Police) with regard to seizure and
proceeding conducted by the police and in the statement before the
Court, Investigating Officer H.P. Singh (PW-7) has also proved the
fact that vide Ex.P-12C, information received by him on telephone
has been made over to the SDO (P). As such, compliance of
Section 42(2) of the NDPS Act has been proved on behalf of the
prosecution.
18. The next submission that has been raised on behalf of learned
counsel for the appellants is, Section 50 of the NDPS Act has not
been complied with, whereas it is the argument of the learned State
counsel that compliance of Section 50 only applies in case of
personal search of the accused and would not apply in case of
search of baggage like bag, article, container, etc.. In the instant
case, admittedly, the vehicle on which the appellants were
travelling / driving was searched and from inside the car boot, the
Ganja in question was seized.
19. It is well settled that Section 50 of the NDPS Act is applicable only
11 (2021) SCC OnLine SC 324
Cr.A.No.1585/2017 & 1046/2013
where search of a person is involved and is not applicable where
no search of a person is to be conducted. The Supreme Court in
the matter of Krishna Kumar v. State of Haryana12 in which Ajmer
Singh v. State of Haryana13 has been followed by their Lordships,
held as under: -
"12. It is clear from the reading of the aforesaid
provision that it is applicable only where search of a
person is involved. It is not made applicable in those
cases where no search of a person is to be conducted.
In the instant case the appellant was carrying a bag
which was to be searched and on his request Chet Ram
was summoned in whose presence search was
conducted which pertained to a bag. In Ajmer Singh v.
State of Haryana; (2010) 3 SCC 746 this aspect is
specifically considered and dealt with. Following earlier
Constitution Bench judgment, the Court held that when
search and recovery from a bag, brief case, container
etc. is to be made, provisions of Section 50 of the Act are
not attracted."
20. Furthermore, Ajmer Singh (supra) has been followed in the matter
of Makhan Singh v. State of Haryana14. Admittedly, present case is
not the case of personal search of the appellants, it was the case of
search of vehicle which was being driven by accused Nakul Bag -
one of the appellants herein and remaining three accused persons
were sitting inside the vehicle, and from whom the contraband
article was seized from two plastic bags kept in the car boot.
21. In that view of the matter, the provisions contained in the NDPS Act
regarding personal search would not be attracted as the search of
vehicle is different from search of person. Accordingly, this
argument is also rejected.
12 2014 AIR SCW 3667
13 (2010) 3 SCC 746
14 (2015) 12 SCC 247
Cr.A.No.1585/2017 & 1046/2013
22. Now, the next submission raised on behalf of the appellants is,
Section 25 of the NDPS Act has not been complied with.
23. Section 25 of the NDPS Act states as under: -
"25. Punishment for allowing premises, etc., to be used
for commission of an offence.Whoever, being the
owner or occupier or having the control or use of any
house, room, enclosure, space, place, animal or
conveyance, knowingly permits it to be used for the
commission by any other person of an offence
punishable under any provision of this Act, shall be
punishable with the punishment provided for that
offence."
24. Section 25 of the NDPS Act prescribes punishment for allowing
premises or vehicle to be used for commission of an offence. It
provides that whoever, being the owner or occupier or having the
control or use of any house, room, enclosure, space, place, animal
or conveyance, knowingly permits it to be used for the commission
by any other person of an offence punishable under any provision
of this Act, shall be punishable with the punishment provided for
that offence. Admittedly, no question has been asked with regard
to this provision from investigating officer H.P. Singh (PW-7),
therefore, altogether a new plea has been taken by the appellants
before this Court, even otherwise, this plea would not absolve the
appellants from commission of offence, if any. Therefore, the
argument based on Section 25 of the NDPS Act is of no help to the
appellants and it is accordingly rejected.
25. Next submission on behalf of the appellants is with regard to
Section 57 of the NDPS Act that the same has not been complied
with and information with regard to arrest and seizure within 48
Cr.A.No.1585/2017 & 1046/2013
hours next after such arrest or seizure has not been made to the
immediate superior officer {SDO(P)} which has been replied by the
State that vide Exs.P-12C, 14C & 15C, report regarding arrest and
seizure has been made to the immediate superior which is
substantial compliance.
26. The Supreme Court in Mohan Lal (supra), in paragraph 34, relying
upon its earlier decisions in the matters of Sajan Abraham v. State
of Kerala15 and State of Punjab v. Balbir Singh 16, has held that
Section 57 is not mandatory in nature and when substantial
compliance is made, it would not vitiate the prosecution case.
27. In the instant case, the prosecution has been able to demonstrate
vide Exs.P-12C, 14C & 15C that substantial compliance of the
provision contained in Section 57 of the NDPS Act has been made.
Therefore, the argument raised on the basis of Section 57 is also
rejected.
28. Now, the next and final attack that has been made by Mr. Jaiswal
and Mr. Verma, learned counsel for the appellants, vehemently is
that three witnesses namely, Sher Bahadur (PW-2), Ramesh
Bahadur (PW-3) & Bodhram (PW-4) have been examined as
seizure witnesses, but they have turned hostile and have not
supported the prosecution case, therefore, the prosecution case is
vitiated. According to the learned State counsel, even if the
aforesaid prosecution witnesses have not supported the case of the
prosecution and have not turned hostile, the investigating officer
has supported the case of the prosecution, therefore, the
15 (2001) 6 SCC 692
16 (1994) 3 SCC 299
Cr.A.No.1585/2017 & 1046/2013
prosecution case cannot be thrown out.
29. The question for consideration would be, whether the evidence of
police officials can be discarded in absence of support by
independent evidence?
30. The issue so posed has been considered by the Supreme Court
from time to time and it has been held that there is no legal
presumption that evidence of the police officials, unless supported
by independent evidence, is unworthy of acceptance.
31. The Supreme Court in the matter of Girja Prasad v. State of
Madhya Pradesh17 has clearly held that no infirmity is attached to
the testimony of police officials merely because they belong to
police force and that conviction can be based on the testimony of
police officials.
32. Relying upon Girja Prasad (supra), the Supreme Court in the matter
of Baldev Singh v. State of Haryana18 has held that mere fact that
they are police officials does not by itself give rise to any doubt
about their creditworthiness. It was observed as under:-
"10. There is no legal proposition that evidence of police
officials unless supported by independent evidence is
unworthy of acceptance. Evidence of police witnesses
cannot be discarded merely on the ground that they
belong to police force and interested in the investigation
and their desire to see the success of the case.
Prudence however requires that the evidence of police
officials who are interested in the outcome of the result of
the case needs to be carefully scrutinized and
independently appreciated. Mere fact that they are police
officials does not by itself give rise to any doubt about
their creditworthiness."
17 (2007) 7 SCC 625
18 (2015) 17 SCC 554
Cr.A.No.1585/2017 & 1046/2013
33. Similarly, in Rizwan Khan (supra), the Supreme Court has held that
testimony of official witnesses cannot be rejected on the ground of
non-corroboration by independent witnesses. It was further held
that examination of independent witness is not an indispensable
requirement and such non-examination is not necessarily fatal to
the prosecution case, and relying upon State of H.P. v. Pardeep
Kumar19 it has been held as under:-
"14. Applying the law laid down by this Court on the
evidence of police officials/police witnesses to the facts
of the case in hand, referred to hereinabove, we are of
the opinion as the police witnesses are found to be
reliable and trustworthy, no error has been committed by
both the courts below in convicting the accused relying
upon the deposition of the police officials."
34. Similarly, in the matter of Rajesh Dhiman v. State of Himachal
Pradesh20 it has been held by the Supreme Court that non-
examination of independent witnesses would not ipso facto entitle
one to seek acquittal. Though a heightened standard of care is
imposed on the court in such instances.
35. Reverting to the facts of the case finally, though independent
witnesses namely, Sher Bahadur (PW-2), Ramesh Bahadur (PW-3)
& Bodhram (PW-4) could have proved seizure, measurement, etc.,
and they have not supported the case of the prosecution, but
considering the statement of investigating officer H.P. Singh (PW-
7), it cannot be held that the prosecution has not been able to prove
the offence against the appellants beyond reasonable doubt. A
careful perusal of the statement of the investigating officer would
show that compliance of seizure of the contraband article vide
19 (2018) 13 SCC 808
20 (2020) 10 SCC 740
Cr.A.No.1585/2017 & 1046/2013
Exs.P-5, P-6, P-7 & P-8 has been made and he has informed the
proceeding to the SDO(P).
36. In that view of the matter, we are of the considered opinion that the
learned Special Judge is absolutely justified in convicting and
sentencing the appellants. Therefore, we do not find any merit in
both these appeals and they are accordingly dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Soma
