Manipur High Court
Lalremkima vs The State Of Manipur on 23 May, 2022
Digitally
KABOR signed by
AMBAM KABORAMBA
M SAPANA
SAPAN CHANU
Date:
A 2022.05.23
CHANU 13:58:45
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (Cril. A.) No. 20 of 2021
Ref: Cril. Appeal No. 2 of 2021
Lalremkima, aged about 30 years, S/o (L) Soitinkhup of Moreh Super Market
Ward No. 2, P.O. & P.S. Moreh, District-Tengnoupal, Manipur-795131.
......Applicant
Sougaijam Robindro Singh, aged about 29 years, S/o S. Ibotombi Sing of
Kakching Wairi Thongam Leikai, P.O., P.S. & District-Kakching, at present
Moreh Super Market Ward No. 2, P.O & P.S. Moreh, District-Tengnoupal,
Manipur-795131. .... Accused person
-Versus-
The State of Manipur, through Officer-in-Charge NAB Police Station, Old
Nambulane, Imphal West District, Manipur-795001.
......Respondent.
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioner : Mr. H. Kenajit, Advocate
For the respondent : Mr. Y. Ashang, PP
Date of Hearing : 11.04.2022
Date of Order : 23.05.2022.
ORDER
[1] Heard Mr. H. Kenajit, learned counsel appearing for the applicant and
Mr. Y. Ashang, learned PP appearing for the respondent.
[2] The present application had been filed on behalf of the above-named
accused person, Mr. Sougaijam Robindro Singh, by his brother in law with a
MC (Cril.A.) No. 20 of 2021 Page 1
prayer for suspending the operation of the impugned conviction order dated
27.11.2020 and sentence order dated 07.12.2020 and to release the above
name convicted person on bail during the pendency of the connected appeal.
[3] The learned Special Judge (ND&PS), Manipur passed the impugned
judgment and order dated 27.11.2020 in Special Trial Case No. 13 of 2019,
holding the above name accused person guilty and convicted him under
section 29 read with section 21 (b)/ 22 (c) of the ND&PS Act, 1985 and
passed the order dated 07.12.2020 sentencing him to undergo twelve years
R.I. with a fine of Rs. 1,00,000/- (Rupees one lakh only).
[4] In support of the prayer made in the present application, the learned
counsel for the applicant raised the following two grounds:-
(a) the prosecution has totally failed to prove the alleged seizure
of the contrabands from the possession or at the instance of the
aforesaid convicted person inasmuch as, the independent
witnesses did not corroborate with the statements of the PWs
No. 1 & 2, who are interested witnesses;
(b) search and seizure was carried out without complying with
the mandatory provisions of section 41 (2) and 42 (1) & (2) of the
ND&PS Act, 1985, inasmuch as, the information obtained by the
concerned officers about commission of the offence was not
taken down in writing and produced before the Trial Court during
the course of the Trial.
MC (Cril.A.) No. 20 of 2021 Page 2
[5] In connection with the first ground raised by the learned counsel for
the applicant, it has been submitted that as per the prosecution story two
independent witnesses were present at the time of search and seizure of the
contrabands from the possession of the convicted persons. However, during
the Trial, the prosecution produced only one of the independent witness, viz,
Lemapokpam Michael (PW No. 3), who clearly stated in his cross-
examination that he puts his signature in the seizure memo dated 04.05.2018
at the NAB Police Station, Imphal and that he had never visited Moreh in his
life.
The learned counsel further submitted that the said PW No. 3 was not
declared by the prosecution as a hostile witness and accordingly, the
statements given by the said independent witness cannot be ignored and that
on consideration of the statements given by the said PW No. 3, it is crystal
clear that he was never present at the time of search and seizure of the
contraband from the possession of the convicted person.
Mr. H. Kenajit submitted that section 100 (4) & (5) of the CrPC
mandates that a search should be carried out in the presence of two
independent witnesses and the list of all things seized in the course of such
search should be signed by two independent witnesses, however, in the
present case no independent witnesses were present at the time of the
search and seizure and accordingly, the prosecution had totally failed to
establish the seizure of the contrabands from the possession of the convicted
persons. According to the learned counsel, such lapses on the part of the
MC (Cril.A.) No. 20 of 2021 Page 3
prosecution vitiates the trial and the conviction of the accused persons is
liable to be set aside.
[6] It has also been submitted by the learned counsel for the applicant
that the learned Special Judge (ND&PS), Manipur convicted the accused
persons solely on the testimony of the PW No. 1 and PW No. 2, who are both
Police Officers and interested witnesses and accordingly, the impugned
judgment and order passed by the learned Special Judge (ND&PS), Manipur
is not sustainable in the eyes of law and deserves to be quashed and set
aside. In support of his contentions, the learned counsel cited the following
judgments of the Hon'ble Apex Court:-
(1) "Naresh Kumar Alias Nitu vs. State of Himachal Pradesh"
reported in (2017) 15 SCC 684
"7. The public bus, on which the appellant was travelling, was
going from Nerwa to Chamunda. The ticket issued to the appellant
Ext. DX, proved by the bus conductor DW 2, bears the time of
issuance 6.51 a.m., visible to the naked eye. The distance from
Nerwa to Majhotli, is 26 km as deposed by DW 1. We find
substance in the submission on behalf of the appellant, that the
travelling time for the bus, in the hills, for this distance would be
one hour or more. Prima facie, the prosecution story that the
appellant was apprehended at Majhotli at 6.15 a.m. becomes
seriously doubtful if not impossible. The bus would have reached
Majhotli at about 8.00 a.m. or thereafter only. The conclusion of
the High Court that passage of time, and memory loss, were
sufficient explanation for the time difference, is held to be
perverse, and without proper consideration of Ext. DX. PW 2, the
independent witness has stated that he was stopped at Majhotli by
the police at 10.30 a.m. and was allowed to leave after verification
of his motorcycle papers. The witness has specifically denied that
the appellant was apprehended in his presence and that any
MC (Cril.A.) No. 20 of 2021 Page 4
search, seizure and recovery was conducted in his presence. He
had deposed that he was called to the police station at 1.00 p.m.
and asked to sign the papers. The witness was declared hostile.
This aspect has not been considered by the High Court, which
proceeded on the only assumption that the signatures were
admitted."
"8. In a case of sudden recovery, independent witness may not be
available. But if an independent witness is available, and the
prosecution initially seeks to rely upon him, it cannot suddenly
discard the witness because it finds him inconvenient, and place
reliance upon police witnesses only. In the stringent nature of the
provisions of the Act, the reverse burden of proof, the presumption
of culpability under Section 35, and the presumption against the
accused under Section 54, any reliance upon Section 114 of the
Evidence Act in the facts of the present case, can only be at the
risk of a fair trial to the accused. Karamjit Singh v. NCT of Delhi is
distinguishable on its facts as independent witness had refused to
sign because of the fear of terrorists. Likewise S. Jeevanantham v.
State also does not appear to be a case where independent
witnesses were available."
"10. In the facts of the present case, and the nature of evidence as
discussed, the prosecution had failed to establish the foundational
facts beyond all reasonable doubt. The Special Judge committed
no error in acquitting the appellant. The High Court ought not to
have interfered with the same. The submissions regarding non-
compliance with Section 50 of the Act, or that the complainant
could not be the investigating officer are not considered necessary
to deal with in the facts of the case."
(2) "Noor Aga Vs. State of Punjab & Another" reported in
(2008) 16 SCC 417
"109. In Baldev Singh it was stated: (SCC p. 199, para 28)
"28. This Court cannot overlook the context in which the
NDPS Act Operates and particularly the factor of widespread
illiteracy among persons subject to investigation for drug offences.
It must be borne in mind that severer the punishment, greater has
MC (Cril.A.) No. 20 of 2021 Page 5
to be the care taken to see that all the safeguards provided in a
statute are scrupulously followed. We are not able to find any
reason as to why the empowered officer should shirk from
affording a real opportunity to the suspect, by intimating to him that
he has a right 'that if he requires' to be searched in the presence of
a gazetted officer or a Magistrate, he shall be searched only in that
manner. As already observed the compliance with the procedural
safeguards contained in Section 50 are intended to serve a dual
purpose--to protect a person against false accusation and
frivolous charges as also to lend credibility to the search and
seizure conducted by the empowered officer. The argument that
keeping in view the growing drug menace, an insistence on
compliance with all the safeguards contained in Section 50 may
result in more acquittals does not appeal to us. If the empowered
officer fails to comply with the requirements of Section 50 and an
order or acquittal is recorded on that ground, the prosecution must
thank itself for its lapses. Indeed in every case the end result is
important but the means to achieve it must remain above-board.
The remedy cannot be worse than the disease itself. The
legitimacy of the judicial process may come under cloud if the
court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also
undermine respect for the law and may have the effect of
unconscionably compromising the administration of justice. That
cannot be permitted."
"111. In a case of this nature, where there are a large number of
discrepancies, the appellant has been gravely prejudiced by their
non-examination. It is true that what matters is the quality of the
evidence and not the quantity thereof but in a case of this nature
where procedural safeguards were required to be strictly complied
with, it is for the prosecution to explain why the material witnesses
had not been examined. The matter might have been different if
the evidence of the investigating officer who recovered the material
objects was found to be convincing. The statement of the
investigating officer is wholly unsubstantiated. There is nothing on
MC (Cril.A.) No. 20 of 2021 Page 6
record to show that the said witnesses had turned hostile.
Examination of the independent witnesses was all the more
necessary inasmuch as there exist a large number of
discrepancies in the statement of official witnesses in regard to
search and seizure of which we may now take note.
[7] In connection with the second ground raised by the applicant, Mr. H.
Kenajit, learned counsel submitted that under section 41 (2) and section 42
(1) & (2) of the ND&PS Act, 1985, it is mandated that if an empowered officer
has reason to believe from personal knowledge or information given by any
person that any person has committed an offence punishable under the Act,
such knowledge or information should be taken down in writing. The learned
counsel further submitted that the provisions under section 41 and 42 of the
ND&PS Act are mandatory and any violation or non-compliance with the said
provisions by the prosecution would vitiate the trial. In the present case, PW
No. 1, who is the I.O. of the case, clearly stated in his deposition that one of
the accused person, viz, Abdul Wahab disclosed that another accuse namely
Chal Mawii Duhlian was involved in the case and that the second accuse
disclosed that her son in law S. Robindro Singh and her daughter Lalrozami
Duhlian, were also involved in the case. According to the learned counsel,
there were two disclosers by two different accused persons at different point
of time, however, neither the SP (NAB) nor the I.O. of the case, to whom
such disclosers were made, did not take down in writing such
discloser/information and produced any document as evidence before the
Trial Court as mandated under section 41 and 42 of the ND&PS Act and that
MC (Cril.A.) No. 20 of 2021 Page 7
such lapses on the part of the prosecution vitiates the conviction of the
accused persons and the impugned conviction and sentence are liable to
quash and set aside.
In support of his contentions, the learned counsel cited the following
judgments:-
(1) "State of Punjab Vs. Balbir Singh" reported in (1994) 3
SCC 299
"25. The questions considered above arise frequently before the trial
courts, Therefore we find it necessary to set out our conclusions
which are as follows:-
(1) ******
(2-A) Under Section 41(1) only an empowered Magistrate can
issue warrant for the arrest or for the search in respect of
offences punishable under Chapter IV of the Act etc. when he
has reason to believe that such offences have been committed
or such substances are kept or concealed in any building,
conveyance or place. When such warrant for arrest or for search
is issued by a Magistrate who is not empowered, then such
search or arrest if carried out would be illegal. Likewise only
empowered officers or duly authorized officers as enumerated in
Sections 41(2) and 42(1) can act under the provisions of the
NDPS Act. If such arrest or search is made under the provisions
of the NDPS Act by anyone other than such officers, the same
would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give
the authorisation to his subordinate officer to carry out the arrest
of a person or search as mentioned therein. If there is a
contravention, that would affect the prosecution case and vitiate
the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior
information given by any person, that should necessarily be
MC (Cril.A.) No. 20 of 2021 Page 8
taken down in writing. But if he has reason to believe from
personal knowledge that offences under Chapter IV have been
committed or materials which may furnish evidence of
commission of such offences are concealed in any building etc.
he may carry out the arrest or search without a warrant between
sunrise and sunset and this provision does not mandate that he
should record his reasons of belief. But under the proviso to
Section 42(1) if such officer has to carry out such search
between sunset and sunrise, he must record the grounds of his
belief.
To this extent these provisions are mandatory and
contravention of the same would affect the prosecution case and
vitiate the trial.
(3). Under Section 42(2) such empowered officer who takes
down any information in writing or records the grounds under
proviso to Section 42(1) should forthwith send a copy thereof to
his immediate official superior. If there is total non-compliance of
this provision the same affects the prosecution case. To that
extent it is mandatory. But if there is delay whether it was undue
or whether the same has been explained or not, will be a
question of fact in each case."
2. "State of W.B. and Others vs. Babu Chakraborthy" reported
in (2004) 12 SCC 201.
"17. In view of the above, Section 42(2) also stood violated. The
proviso to Section 42(1) requires that where an 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 before sunset
and sunrise after recording the grounds of his belief."
"18. We have perused the evidence Ied in this regard. Neither PW 4
nor PW 2 deposed that he had complied with the procedure under
Section 42(1) and the proviso to Section 42(1) and Section 42(2)
before they conducted the search. It is alleged by them that on
search certain polythene bags containing heroin were recovered.
MC (Cril.A.) No. 20 of 2021 Page 9
According to them, two independent witnesses of the locality Swapan
Kumar Samanta and Ramkaran Prasad were taken and they
witnessed the search. But unfortunately, these witnesses were not
examined and no attempts were made to summon them at the trial.
In fact, PW 2 S.K. Dutta, on a specific question in cross-examination,
deposed that no search memo was prepared and, PW 4 K.L. Meena
said he does not remember if any search memo was prepared.
Further, it is alleged that they came to Memari PS at 11.30 p.m. and
Ext. 1 GD entry was prepared. This GD entry shows that the seized
articles were recovered from the bedroom of the accused. The
accused was also arrested on 5-5-1989. Thereafter, the case was
made over to PW 3 and after receiving the report from the Central
Public Health and Laboratories, the accused was sent up for trial.
The trial court convicted the accused and punished the respondent
for offences under Section 21 of the Act and sentenced him to
undergo 10 years' RI and pay a fine of Rs 1 lakh."
"23. Great significance has been attached to the mandatory nature of
the provisions, keeping in mind the stringent punishment prescribed
in the Act. This Court has attached great importance to the recording
of the information and the ground of belief since that would be the
earliest version that will be available to a court of law and the
accused while defending his prosecution. This Court also held that
failure to comply with Section 42(1), proviso to Section 42(1) and
Section 42(2) would render the entire prosecution case Suspect and
cause prejudice to the accused.
"24. In the cases of Abdul Rashid Ibrahim Mansuri v. State of
Gujarat, Koluttumottil Razak v. State of Kerala, Beckodan Abdul
Rahiman v. State of Kerala and in the case of Chhunna v. State of
M.P. this Court has held that the non-compliance with the provisions
of the proviso to Section 42 of the Act which is mandatory, the action
was held illegal and the conviction of the accused was set aside. This
Court also held that the onus to prove compliance lies on the
prosecution and in the absence of any prosecution evidence about
the compliance with the mandatory procedure, the presumption
would be that the procedure was not complied with."
MC (Cril.A.) No. 20 of 2021 Page 10
"25. In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of
Gujarat this Court held that the prosecution is obliged to give
evidence of the search and all that transpired in its connection. It is
very relevant that the prosecution witnesses speak about the
compliance with the mandatory procedure and if the evidence to this
effect is not given, the court must assume that the person to be
searched was not informed of the protection. The court must find that
the possession of illicit articles under the Act was not established. It
has been held that when the officer has not deposed that he had
followed the procedure mandated, the Court is duty-bound to
conclude that the accused had not had the benefit of the protection
that the Act affords; that, therefore, his possession of articles under
the Act is not established and that the precondition for his having
satisfactorily accounted for such possession had not been met; and
to acquit the accused."
"27. Though these observations were made in a case to which
Section 50 applies, in view of the pronouncement of the judgment of
three Judges of this Court in Abdul Rashid Ibrahim Mansuri v. State
of Gujarat the approach by the Court in interpreting the law for the
non-compliance with Section 42 and Section 50 must remain the
same. In this case, PW 2 and PW 4 and any other prosecution
witness do not speak about the compliance with the mandatory
provisions of Section 42(1), proviso to Section 42 (1) and Section 42
(2).
"28. It has been held that in any case where mandatory provisions
are not complied with and where independent mahazar witnesses are
not examined, the accused would be entitled to be acquitted and that
any seizure in violation of the mandatory provisions would be
inadmissible since these provisions are in the nature of statutory
safeguards."
On the basis of the submissions made above, the learned counsel for
the petitioner prayed for passing an interim order staying the operation of the
MC (Cril.A.) No. 20 of 2021 Page 11
impugned judgments and orders and for releasing the convicted person on
bail during the pendency of the connected appeal.
[8] With regard to the first ground raised by the applicant, it has been
submitted by Mr. Y. Ashang, learned PP that two witnesses i.e., PW No. 1
(I.O. of the case) and PW No. 2 (DySP/Gazetted Officer), who were present
at the time of seizure of the contraband from the possession of the convicted
persons gave their statements about the said seizure and their statements
cannot be shaken by the defense. The learned PP also submitted that the
accused persons did not raised any objection or point out that the said PW
No. 1 and more particularly PW No. 2 bear such enmity against the accused
persons so as to implicate them falsely and that in the absence of any such
objection or ground, the evidences given by the PW No. 1 and PW No. 2 or
their deposition cannot be discarded merely on the ground that they belong
to the police force and are either interested in the investigation or in the
prosecution. The learned PP further submitted that since the PW No. 2 is a
Gazetted Officer, the statements given by him of the seizure of the
contraband from the possession or at the instance of the accused persons,
which remained unshaken, are trustworthy and totally reliable and that the
Trial Court had convicted the accused persons after elaborate considerations
on this point and by relying in a number of Supreme Court judgments. The
learned PP, accordingly submitted that no ground has been made out by the
applicant for interfering with the impugned judgment and order.
MC (Cril.A.) No. 20 of 2021 Page 12
In support of his contentions, the learned PP cited the judgment
rendered by the Hon'ble Apex Court in the case of "Madhu alias
Madhuranatha and Anr. vs. State of Karnataka" reported in AIR 2014
SCC 394, wherein as in held as under:-
"10. Learned counsel for the appellants has vehemently argued that in
some of the recoveries, though a large number of people were available,
but only police personnel were made recovery witnesses. Thus, the whole
prosecution case becomes doubtful.
The term 'witness' means a person who is capable of providing
information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in Court, or otherwise.
In Pradeep Narayan Madgaonkar and Ors. v. State of Maharashtra, AIR
1995 SC 1930 : (1995 AIR SCW 2988), this Court dealt with the issue of
the requirement of the examination of an independent witness, and
whether the evidence of a police witness requires corroboration. The
Court held that though the same 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 investigation or in the prosecution. However, as far as possible the
corroboration of their evidence on material particulars should be sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212 : (1993
AIR SCW 169); Balbir Singh v. State (1996) 11 SCC 139; Kalpnath Rai v.
State (Through CBI), AIR 1998 SC 201 : (1997 AIR SCW 4166); M.
Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR
2003 SC 4311 : (2003 AIR SCW 4975); and Ravinderan v.
Superintendent of Customs, AIR 2007 SC 2040 : (2007 AIR SCW 3100)).
"11. 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
MC (Cril.A.) No. 20 of 2021 Page 13
prohibition to the effect that a policeman cannot be a witness or that his
deposition cannot be relied upon if it inspires confidence.
"12. This Court in Laxmibai (dead) Thr. L.Rs. and Anr. v. Bhagwantbuva
(dead) Thr. L.Rs. and Ors., AIR 2013 SC 1204 : (2013 AIR SCW 949)
examined a similar issue and held:
"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. (See: Khem Chand v. State of
Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of
U.P. v. Nahar Singh (dead) and Ors., AIR 1998 SC 1328 : (1998 AIR
SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt),
AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar and Anr. v.
State of Rajasthan, AIR 2005 SC 1096 : (2005 AIR SCW 589))".
[9] With regard to the second point raised by the applicant, the learned
PP submitted that the issue of non-compliance with the provisions of section
41 (2) and section 42 (1) & (2) of the ND&PS Act was never raised by the
MC (Cril.A.) No. 20 of 2021 Page 14
accused persons during the trial and that if such point had been raised, the
prosecution would have certainly placed before the Court the necessary
evidence to show that the prosecution had scrupulously complied with the
provisions of the section 41 (2) and 42 (1) & (2) of the ND&PS Act. The
learned PP further submitted that there is also no statutory requirement that
such a record, about taking down in writing the information of the commission
of an offence under the ND&PS Act by the SP (NAB) or by the I.O., should be
produced in Court as a matter of course and accordingly, there is no ground
for interfering with the impugned judgment and order.
In support of his contentions, the learned PP cited the judgment of the
Apex Court in the case of "Union of India vs. Satrohan" reported in (2008)
8 SCC 313
"12. So far as the fulfillment of the requirement of Section 57 of the Act is
concerned it is to be noted that the legal position was stated by this Court
in T. Thomson v. State of Kerala and in State, NCT of Delhi v. Malvinder
Singh. In Malvinder Singh case at JT para 6, it was observed as follows:
(SCC p. 317, para 7)
"7. At this juncture, it would be relevant to take note of what has
been stated by this Court in T. Thomson v. State of Kerala. At
para 5 it was observed as follows: (SCC p. 619)
"5. Learned Senior Counsel further argued that the record
alleged to have prepared by PW 1 on getting information
regarding the movement of the appellants has not been
produced in court. But he conceded that no motion was made on
behalf of the appellants to call for the said record. There is no
statutory requirement that such a record should be produced in
the court as a matter of course. We are, therefore, not disposed
to upset the finding on that score either."
MC (Cril.A.) No. 20 of 2021 Page 15
The learned PP lastly submitted that at paragraph 29 of the judgment
rendered by the Apex Court in the case of "Dadu Alias Tulsidas vs. State of
Maharashtra" reported in (2000) 8 SCC 437, it has been held that a
sentence awarded under the ND&PS Act can be suspended by the Appellate
Court only and strictly subject to the conditions spell out in section 37 of the
Act. By drawing the attention of this Court to the provisions of section 37 of
the ND&PS Act, it has been submitted by the learned PP that no person
accused of an offence punishable for offences under section 19 or section 24
or section 27 A and also for offences involving commercial quantity shall be
released on bail or on his own bond unless the Court is satisfied that there
are reasonable grounds for believing that the accuse is not guilty of such
offence and that he is not likely to commit any offence while on bail.
The learned PP vehemently submitted that in the facts and
circumstances of the present case, there is no reasonable ground for
believing that the convicted person is not guilty of such offences under which
he has been convicted and that there is no ground for believing that he is not
likely to commit any offence while on bail. In view of the above, there is no
ground for releasing the convicted person on bail.
[10] I have carefully perused the impugned judgment and order dated
27.11.2020 passed by the learned Special Judge (ND&PS), Manipur in
Special Trial Case No. 13 of 2019. In the said judgment the learned Special
Judge have already considered the first ground raised by the counsel for the
applicant in the present application and dealt with it elaborately by referring to
MC (Cril.A.) No. 20 of 2021 Page 16
various judgments of the Honb'le Apex Court and has held that though
ordinarily seizure is to be witnessed by two independent and respectable
witnesses of the locality as mandated by section 100 (4) Cr.PC, the
prosecution will not be vitiated if policemen witnessed the seizure unless it
can be shown that they had a history of enmity towards the accuse or were
interested in seeing him getting convicted. In this regard, we can gainfully
referred to the judgment rendered by the Apex Court in the case of "Baldev
Singh vs. State of Haryana" reported in (2015) 17 SCC 554, wherein it has
been held as under:-
"11. Observing 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 in Girja Prasad v. State
of M.P., it was held as under: (SCC pp. 632-33, paras 25-27)
"25. In our judgment, the above proposition does not lay down correct
law on the point. It is well settled that credibility of witness has to be
tested on the touchstone of truthfulness and trustworthiness. It is
quite possible that in a given case, a court of law may not base
conviction solely on the evidence of the complainant or a police
official but it is not the law that police witnesses should not be relied
upon and their evidence cannot be accepted unless it is corroborated
in material particulars by other independent evidence. The
presumption that every person acts honestly applies as much in
favour of a police official as any other person. No infirmity attaches to
the testimony of police officials merely because they belong to police
force. There is no rule of law which lays down that no conviction can
be recorded on the testimony of police officials even if such evidence
is otherwise reliable and trustworthy. The rule of prudence may
require more careful scrutiny of their evidence. But, if the court is
convinced that what was stated by a witness has a ring of truth,
conviction can be based on such evidence.
MC (Cril.A.) No. 20 of 2021 Page 17
"26. It is not necessary to refer to various decisions on the point. We
may, however, state that before more than half-a-century, in Aher
Raja Khima v. State of Saurashtra, Venkatarama Ayyar, J. stated:
(AIR p. 230, para 40)
'40. ...The presumption that a person acts honestly applies as
much in favour of a police officer as of other persons, and it is
not judicial approach to distrust and suspect him without good
grounds therefor. Such an attitude could do neither credit to the
magistracy nor good to the public. It can only run down the
prestige of the police administration.'
27. In Tahir v. State (Delhi), dealing with a similar question, Dr
A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341,
para 6)
'6. ... Where the evidence of the police officials, after careful
scrutiny, inspires confidence and is found to be trustworthy and
reliable, it can form basis of conviction and the absence of some
independent witness of the locality to lend corroboration to their
evidence, does not in any way affect the creditworthiness of the
prosecution case."
After careful consideration of the submissions advanced by the
learned counsel for the applicant and after careful perusal of the record of the
present case, this Court did not find any new ground being made out by the
counsel for the applicant for interfering with the impugned judgment and order
passed by the learned Special Judge and accordingly, this Court is not
inclined to pass any interim order for suspending the impugned judgment and
order on the first ground raised by the applicant.
[11] The second ground is solely based on the statement given by the PW
No. 1 (I.O. of the case) to the effect that on the disclosure of the statement of
Abdul Wahab, the accuse namely Chalmawii Duhlian was involved in the
case and that on her further discloser statement, her son in law S. Robindro
MC (Cril.A.) No. 20 of 2021 Page 18
Singh and her daughter Lalrozami Duhlian were also involved in the said
case. On the basis of such statement given by the PW No. 1, it has been
submitted by the learned counsel for the applicant that Abdul Wahab was
arrested on 01.05.2018 and Chalmawii Duhlian was arrested on 04.05.2018
and that these two accused persons disclosed commission of offence by
different persons at different point of time and such disclosures were not
taken down in writing by the SP (NAB) and I.O. of the case as mandated
under section 41 (2) and 42 (1) of the ND&PS Act. However, on careful
examination of the statement given by the said PW No. 1 in his cross-
examination and other relevant records including the charge-sheet of the
case, it is revealed that the accused Abdul Wahab disclosed about the
commission of offence by the accused Chalmawii Duhliam, her son in law S.
Robindro Singh and her daughter Lalrozami Duhlian and that such
disclosures have been clearly recorded by the SP (NAB), it is authorization
letter dated 03.05.2018 (exhibit P/7) authorizing the I.O. to search the
premises of the aforesaid three accused persons and to seize the
contrabands drugs.
In my considered view, there is no provisions under the Act and Rules
laying down specifically as to how the information or disclosures are to be
taken down in writing and since the SP (NAB) have recorded in writing the
disclosure about committing offence under the ND&PS Act by the aforesaid
three accused persons in his authorization letter dated 03.05.2018, this Court
MC (Cril.A.) No. 20 of 2021 Page 19
is of the considered view that the SP (NAB) had substantially complied with
the provisions under section 41 (2) of the ND&PS Act.
[12] In the present case, as the search and seizure had been carried out
under the provisions of section 41 (2) & (3) of the ND&PS Act, there is no
question of attracting the provisions of section 42 of the said Act and the
contentions advanced by the learned counsel appearing for the applicant
about non-compliance with the provisions of section 42 (1) & (2) are
misconceived and does not arise at all.
In view of the above, this Court does not find any ground for
interfering with the impugned judgment and order and for granting bail to the
convicted person.
In the result, the present application is hereby rejected, however,
without any order as to cost.
JUDGE
FR/NRF
Sapana
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