VARINDER KUMAR versus STATE OF HIMACHAL PRADESH

[2019] 2 S.C.R. 707

VARINDER KUMAR

STATE OF HIMACHAL PRADESH

(Criminal Appeal Nos.2450-2451 of 2010 )

FEBRUARY 11, 2019[RANJAN GOGOI, CJI, NAVIN SINHA ANDK. M. JOSEPH, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.20(ii)(c) – Appellant was apprehended with two Gunny Bags onhis scooter which contained varying quantities of ‘Charas’ – TrialCourt acquitted the appellant on the grounds of non-compliancewith s.100(4) of Cr.P.C. and ss. 50, 52 and 57 of the NDPS Act, andthat the seal prepared at the time of seizure was not produced in theCourt – High Court reversed the acquittal and convicted appellantu/s.20(ii)(c) of the NDPS Act – On appeal, held: The conclusion ofthe trial court was perverse in view of the fact that two specimenseal impressions were marked as Exhibits PH and PK – S.50 ofNDPS Act is not applicable as the recovery was not from the personof the appellant but the gunny bags carried on the scooter – Therewas no material to conclude that PW-5 and the other independentwitness were not respectable persons – There was no violation ofs.100(4) of Cr.P.C. – In any event, no prejudice on that accountwas demonstrated – Further, s.52 & 57 of NDPS are directory innature, is of no avail to the appellant – Therefore, no reason tointerfere 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, andwhich alone vitiates the conviction and placed reliance upon MohanLal v. State of Punjab (AIR 2018 SC 3853) – Held: If the facts inMohan Lal case were telling with regard to the prosecution, thefacts in the present case are equally telling with regard to the accused

– Appellant has history of previous convictions – properadministration of the criminal justice delivery system, thereforerequires balancing the rights of the accused and the prosecution,so that the law laid down in Mohan Lal case is not allowed to becomea spring board for acquittal in prosecutions prior to the same,irrespective of all other considerations – Therefore, all pending

Acriminal prosecutions, trials and appeals prior to the law laid downin Mohan Lal shall continue to be governed by the individual factsof the case.

Dismissing the appeals, the Court

HELD: 1. Two samples of 25 gms. each were taken fromBthe two Gunny Bags and sealed with the seal ‘S’, and given toPW-5. PW-2-Head Constable resealed it with the seal ‘P’. Theconclusion of the Trial Court that the seal had not been producedin the Court is therefore perverse in view of the two specimenseal impressions having been marked as Exhibits PH and PK. Itis not the case of the appellant that the seals were found tamperedCin any manner. [Para 6][711-H; 712-A-B]

2. Section 50 of NDPS Act patently has no application sincethe recovery was not from the person of the appellant but thegunny bags carried on the scooter. PW-5 the independent witnesswho had signed the search and seizure documents but turnedDhostile, was duly confronted under Section 145 of the EvidenceAct, 1872 with his earlier statements to the contrary under Section161 Cr.P.C. and did not deny his signatures. The order sheet ofthe Trial Court reveals that independent witness was present onthat date to depose, but was bound down on objection from theEdefence side that he be examined on another date along withother witnesses. It is therefore very reasonable to conclude thatthe witness did not appear subsequently because he may havebeen won over by the appellant. There is no material to concludethat the witness was withheld or suppressed by the prosecutionwith any ulterior motive. There is no material for us to concludeFthat PW-5 and the other independent witness were not respectablepersons. Given the very short span of time in which events tookplace it is not possible to hold any violation of Section 100(4)Cr.P.C. In any event, no prejudice on that account has beendemonstrated. Sections 52 and 57 of NDPS Act being directoryin nature is of no avail to the appellant. [Para 7][712-C-E-]G

4. The only issue surviving for consideration is with regardto the prosecution being vitiated because PW-10 was theinformant as also the Investigating Officer, in view of Mohan Lalcase. [Para 9][712-G]

3. The paramount consideration being to interpret the lawso that it operates fairly, the facts of that case did not show anyneed to visualise what all exceptions must be carved outand provided for. The attention of the Court was also notinvited to the need for considering the carving out of exceptions.[Para 11][713-F]

4. Individual rights of the accused are undoubtedlyimportant. But equally important is the societal interest forbringing the offender to book and for the system to send theright message to all in the society—be it the law-abiding citizenor the potential offender. ‘Human rights’ are not only of theaccused but, extent apart, also of the victim, the symbolic memberof the society as the potential victim and the society as whole.[Para 12][713-G]

5. Societal interest therefore mandates that the law laiddown in Mohan Lal case cannot be allowed to become springboard by an accused for being catapulted to acquittal, irrespectiveof all other considerations pursuant to an investigation andprosecution when the law in that regard was nebulous. Criminaljurisprudence mandates balancing the rights of the accused andthe prosecution. If the facts in Mohan Lal case were telling withregard to the prosecution, the facts in the present case are equallytelling with regard to the accused. There is history of previousconvictions of the appellant also. This Court cannot beoblivious of the fact that while the law stood nebulous, chargesheets have been submitted, trials in progress or concluded, andappeals pending all of which will necessarily be impacted.[Para 15][714-E, F]6. The criminal justice delivery system, cannot be allowedto veer exclusively to the benefit of the offender making it uni-directional exercise. proper administration of the criminaljustice delivery system, therefore requires balancing the rightsof the accused and the prosecution, so that the law laid down inMohan Lal case is not allowed to become spring board foracquittal in prosecutions prior to the same, irrespective of allother considerations. Therefore all pending criminal prosecutions,trials and appeals prior to the law laid down in Mohan Lal caseshall continue to be governed by the individual facts of the case.[Para 18][716-C-D]

ASonu alias Amar v. State of Haryana (2017) 8 SCC 570: [2017] 8 SCR 151 ; Harsh Dhingra v. State ofHaryana and Others (2001) 9 SCC 550 : [2001] 3Suppl. SCR 446 – relied on.

Mohan Lal v. State of Punjab AIR 2018 SC 3853 –referred to.B

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 2450-2451 of 2010

From the Judgment and Order dated 02.06.2010 and 22.07.2010of the High Court of Himachal Pradesh, Shimla in Criminal AppealNo. 427 of 1996

Dhruv Pall, Ajay Marwah, Mool Singh,Advs. for the Appellant.Abhinav Mukerji, AAG, Ms. Bihu Sharma, Ms. Purnima Krishna,Ms. Pratishtha Vij, Advs. for the Respondent.

The Judgment of the Court was delivered by

ENAVIN SINHA, J.

1. The appellant assails the order reversing his acquittal andconvicting him under Section 20(ii)(c) of the Narcotic Drugs andPsychotropic Substances Act, 1985 (hereinafter referred to as “the NDPSAct”), sentencing him for 20 years, along with fine of Rs.2 lacs, with aFdefault stipulation.

2. The appellant is stated to have been apprehended on 31.03.1995carrying “charas” on his scooter, in two gunny bags, with varyingquantities. The Trial Court acquitted the appellant on grounds of non-compliance with Section 100(4) of the Code of Criminal Procedure, withGregard to independent witnesses. Further, there had been non-compliancewith Sections 50, 52 and 57 of the NDPS Act, and that the seal preparedat the time of seizure and handed over to PW-5, Naresh Kumar had notbeen produced in the court.

3. The High Court, reversing the acquittal held that the sealsprepared at the time of seizure, and also at the time of deposit in theMalkhana had been produced and marked as Exhibits PH and PK. Thechemical examiners report confirmed the seized material as “charas”.The seizure of the contraband being from gunny bags, Section 50 of theNDPS Act had no application. Merely because the two independentwitnesses were not from the same locality, would not ipso facto amountto violation of Section 100(4), Cr.P.C.

4. Shri Dhruv Pall, learned counsel for the appellant submittedthat the appellant had been falsely implicated because he had lodged acomplaint against the C.I.D., for improper investigation in the case relatingto his father’s death. PW-5, Naresh Kumar, the independent witness,had turned hostile and did not support the prosecution case with regardto search and seizure. The second independent witness Jeevan Kumar,was withheld by the prosecution without any explanation. In the facts ofthe case, the absence of independent witnesses from the same localityas required by Section 100(4) Cr.P.C. assumes importance. PW-10 Sub-Inspector Prem Singh, being the informant himself, was also theInvestigating Officer, and which alone vitiates the conviction irrespectiveof all other issues. Strong reliance was placed on recent decision ofthis Court in Mohan Lal vs. State of Punjab, AIR 2018 SC 3853.5. Shri Abhinav Mukerji, learned counsel appearing for the State,opposing the appeal submitted that the order of the High Court beingwell reasoned and considered merits no interference. The appellant hasa previous history of convictions under the NDPS Act. The ground thatPW-10 being the informant could not have been the investigating officeralso, had not been raised at any stage. The order of conviction thereforemay not be tested on ground to which the High Court had no occasionto apply its mind. It has also not been pleaded in the appeal.

6. We have considered the respective submissions. PW-10 isstated to have received secret information at 2.45 P.M. on 31.03.1995.He immediately reduced it into writing and sent the same to PW-8, ShriJaipal Singh, Dy.S.P., C.I.D., Shimla. At 3.05 P.M. PW-7, Head ConstableSurender Kumar stopped PW-5, Naresh Kumar and another independentwitness, Jeevan Kumar travelling together, whereafter the appellant wasapprehended at 3.30 P.M. with two Gunny Bags on his Scooter whichcontained varying quantities of ‘charas’. PW-8, Shri Jaipal Singh, Dy.S.P.,C.I.D., Shimla who had arrived by then gave notice to the appellant andobtained his consent for carrying out the search. Two samples of 25

Agms. each were taken from the two Gunny Bags and sealed with theseal ‘S’, and given to PW-5. PW-2, Jaswinder Singh the MalkhanaHead Constable resealed it with the seal ‘P’. The conclusion of theTrial Court that the seal had not been produced in the Court is thereforeperverse in view of the two specimen seal impressions having beenmarked as Exhibits PH and PK. It is not the case of the appellant thatBthe seals were found tampered in any manner.

7. Section 50 of NDPS Act patently has no application since therecovery was not from the person of the appellant but the gunny bagscarried on the scooter. PW-5 the independent witness who had signedthe search and seizure documents but turned hostile, was duly confrontedCunder Section 145 of the Evidence Act, 1872 with his earlier statementsto the contrary under Section 161 Cr.P.C. and did not deny his signatures.The order sheet dated 08.11.1995 of the Trial Court reveals thatindependent witness Jeevan Kumar was present on that date to depose,but was bound down on objection from the defence side that he beDexamined on another date along with other witnesses. It is thereforevery reasonable to conclude that the witness did not appear subsequentlybecause he may have been won over by the appellant. There is no materialto conclude that the witness was withheld or suppressed by theprosecution with any ulterior motive. There is no material for us toconclude that PW-5 and the other independent witness Jeevan KumarEwere not respectable persons. Given the very short span of time in whichevents 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 availto the appellant.F8. The appellant took defence under Section 313 Cr.P.C. offalse implication but failed to produce any evidence with regard to thecomplaint lodged by him against the C.I.D. department, fact noticedby the Trial Court itself. We therefore find no reason to come to anydifferent conclusion than that arrived at by the High Court.9. The only issue surviving for consideration is with regard to theGprosecution being vitiated because PW-10 was the informant as also theInvestigating Officer, in view of Mohan Lal (supra). The ground nothaving been raised at any earlier stage quite obviously, the prosecutionnever had chance to contest the same. It has not even been pleadedin the appeal. Nonetheless in view of the reliance placed, we shallHexamine the issue.10. In Mohan Lal (supra) our attention had been invited to thedivergent views being taken on the issue with regard to the informantand the investigating officer being the same person in criminalprosecutions, and the varying conclusions arrived at in respect of thesame. The facts in Mohan Lal (supra), were indeed extremely tellingin so far as the defaults on part of the prosecution was concerned. Inthat back ground it was held that the issue could not be left to be decidedon the facts of case, impinging on the right of fair trial to an accusedunder Article 21 of the Constitution of India, observing as follows:

“25. In view of the conflicting opinions expressed by differenttwo Judge Benches of this Court, the importance of fairinvestigation from the point of view of an accused as guaranteedconstitutional right under Article 21 of the Constitution of India, itis considered necessary that the law in this regard be laid downwith certainty. To leave the matter for being determined on theindividual facts of case, may not only lead to possible abuse ofpowers, but more importantly will leave the police, the accused,the lawyer and the courts in state of uncertainty and confusionwhich has to be avoided. It is therefore held that fair investigation,which is but the very foundation of fair trial, necessarily postulatesthat the informant and the investigator must not be the same person.Justice must not only be done, but must appear to be done also.Any possibility of bias or predetermined conclusion has to beexcluded. This requirement is all the more imperative in lawscarrying reverse burden of proof.”

11. The paramount consideration being to interpret the law so thatit operates fairly, the facts of that case did not show any need to visualisewhat all exceptions must be carved out and provided for. The attentionof the Court was also not invited to the need for considering the carvingout of exceptions.

12. Individual rights of the accused are undoubtedly important.But equally important is the societal interest for bringing the offender tobook 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, thesymbolic member of the society as the potential victim and the societyas whole.

A13. Law has to cater to wide variety of situations as appear insociety. Law being dynamic, the certainty of the legislation appearsrigid at times whenever circumstance (set of facts) appears which isnot catered for explicitly. Expediency then dictates that the higherjudiciary, while interpreting the law, considers such exception(s) as arecalled for without disturbing the pith and substance and the originalBintention of the legislature. This is required primarily for the reason tohelp strike balance between competing forces – justice being the end– and also because the process of fresh legislation could take longtime, which would mean failure of justice, and with it erosion of publicconfidence and trust in the justice delivery system.C

14. The principle of fair trial now informs and energises manyareas of the law. It is constant, ongoing, evolutionary process continuallyadapting itself to changing circumstances, and endeavouring to meet theexigencies of the situation – peculiar at times – and related to the natureof crime, persons involved, directly or operating from behind, and soDmany other powerful factors which may come in the way ofadministration of criminal justice, wherefore the endeavour of the highercourts, while interpreting the law, is to strike the right balance.15. Societal interest therefore mandates that the law laid down inMohan Lal (supra) cannot be allowed to become spring board by anaccused for being catapulted to acquittal, irrespective of all otherEconsiderations pursuant to an investigation and prosecution when thelaw in that regard was nebulous. Criminal jurisprudence mandatesbalancing the rights of the accused and the prosecution. If the facts inMohan Lal (supra) were telling with regard to the prosecution, the factsin the present case are equally telling with regard to the accused. ThereFis history of previous convictions of the appellant also. We cannot beoblivious of the fact that while the law stood nebulous, charge sheetshave been submitted, trials in progress or concluded, and appeals pendingall of which will necessarily be impacted.

16. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCCG570, it was observed as follows:

“37. …… large number of trials have been held during theperiod between 4.8.2005 and 18.9.2014. Electronic records withouta certificate might have been adduced in evidence. There is nodoubt that the judgment of this Court in Anwar P.V. vs. P.K.Basheer, (2014) 10 SCC 473 has to be retrospective in operationHunless the judicial tool of “prospective overruling” is applied.

However, retrospective application of the judgment is not in theinterest of administration of justice as it would necessitate thereopening of large number of criminal cases. Criminal casesdecided on the basis of electronic records adduced in evidencewithout certification have to be revisited as and when objectionsare taken by the accused at the appellate stage. Attempts will bemade to reopen cases which have become final.”

17. That subsequent events noticed, may require revisiting of anearlier decision, to save actions already taken was considered in HarshDhingra vs. State of Haryana and Others, (2001) 9 SCC 550,observing as follows:

“6. Further, when the decision of the High Court in S.R. Dasscase [(1999)3 SCC 362] had held the field for nearly decadeand the Government, HUDA and the parties to whom theallotments have been made have acted upon and adjusted theiraffairs in terms of the said decision, to disturb that state of affairson the basis that now certain other rigorous principles are declaredto be applied in Anil Sabharwal case [(1997) 2 Punj LR7] wouldbe setting the rules of the game after the game is over, by whichseveral parties have altered their position to their disadvantage.Therefore, we think that in the larger public interest and to avoidthe discrimination which this Court had noticed in the order dated5.12.1997 [(1998) 8 SCC 373] the decision of the High Court inAnil Sabharwal case should be made effective from prospectivedate and in this case from the date on which interim order hadbeen passed on 23.4.1996. Therefore, it would be appropriate tofix that date as the date from which the judgment of the HighCourt would become effective. If this course is adopted, variousanomalies pointed out in respect of different parties referred toabove and other instances which we have not adverted to will beironed out and the creases smoothened so that discrimination isavoided.

7. Prospective declaration of law is device innovated by thisCourt to avoid reopening of settled issues and to prevent multiplicityof proceedings. It is also device adopted to avoid uncertaintyand avoidable litigation. By the very object of prospectivedeclaration of law, it is deemed that all actions taken contrary tothe declaration of law, prior to the date of the declaration arevalidated. This is done in larger public interest. Therefore, the

Asubordinate forums which are bound to apply law declared by thisCourt are also duty-bound to apply such dictum to cases whichwould arise in future. Since it is indisputable that court canoverrule decision there is no valid reason why it should not berestricted to the future and not to the past. Prospective overrulingis not only part of constitutional policy but also an extendedBfacet of stare decisis and not judicial legislation. These principlesare enunciated by this Court in Baburam vs. C.C. Jacob, (1999)3 SCC 362 and Ashok Kumar Gupta vs. State of U.P., (1997) 5SCC 201.”

18. The criminal justice delivery system, cannot be allowed toCveer exclusively to the benefit of the offender making it uni-directionalexercise. 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 (supra) is not allowed to becomea spring board for acquittal in prosecutions prior to the same, irrespective

Dof all other considerations. We therefore hold that all pending criminalprosecutions, trials and appeals prior to the law laid down in Mohan Lal(supra) shall continue to be governed by the individual facts of the case.

19. The present appeals lack merit and are therefore dismissed.

Ankit Gyan

Appeals dismissed.