Hon'ble Mr. Justice Navin Sinha
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 24502451 OF 2010
VARINDER KUMAR ....APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails the order reversing his acquittal and
convicting him under Section 20(ii)(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as “the
NDPS Act”), sentencing him for 20 years, along with fine of Rs.2 lacs,
with a default stipulation.
2. The appellant is stated to have been apprehended on 31.03.1995
carrying “charas” on his scooter, in two gunny bags, with varying
quantities. The Trial Court acquitted the appellant on grounds of noncompliance with Section 100(4) of the Code of Criminal Procedure,
with regard to independent witnesses. Further, there had been noncompliance with Sections 50, 52 and 57 of the NDPS Act, and that the
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seal prepared at the time of seizure and handed over to PW5, Naresh
Kumar had not been produced in the court.
3. The High Court, reversing the acquittal held that the seals
prepared at the time of seizure, and also at the time of deposit in the
Malkhana had been produced and marked as Exhibits PH and PK.
The chemical examiners report confirmed the seized material as
“charas”. The seizure of the contraband being from gunny bags,
Section 50 of the NDPS Act had no application. Merely because the
two independent witnesses were not from the same locality, would not
ipso facto amount to violation of Section 100(4), Cr.P.C.
4. Shri Dhruv Pall, learned counsel for the appellant submitted that
the appellant had been falsely implicated because he had lodged a
complaint against the C.I.D., for improper investigation in the case
relating to his father’s death. PW5, Naresh Kumar, the independent
witness, had turned hostile and did not support the prosecution case
with regard to search and seizure. The second independent witness
Jeevan Kumar, was withheld by the prosecution without any
explanation. In the facts of the case, the absence of independent
witnesses from the same locality as required by Section 100(4) Cr.P.C.
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assumes importance. PW10 Sub Inspector Prem Singh, being the
informant himself, was also the Investigating Officer, and which alone
vitiates the conviction irrespective of all other issues. Strong reliance
was placed on a recent decision of this 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 being
well reasoned and considered merits no interference. The appellant
has a previous history of convictions under the NDPS Act. The ground
that PW10 being the informant could not have been the investigating
officer also, had not been raised at any stage. The order of conviction
therefore may not be tested on a ground to which the High Court had
no occasion to apply its mind. It has also not been pleaded in the
appeal.
6. We have considered the respective submissions. PW10 is stated
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 PW8, Shri
Jaipal Singh, Dy.S.P., C.I.D., Shimla. At 3.05 P.M. PW7, Head
Constable Surender Kumar stopped PW5, Naresh Kumar and another
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independent witness, Jeevan Kumar travelling together, whereafter the
appellant was apprehended at 3.30 P.M. with two Gunny Bags on his
Scooter which contained varying quantities of ‘charas’. PW8, Shri
Jaipal Singh, Dy.S.P., C.I.D., Shimla who had arrived by then gave
notice to the appellant and obtained his consent for carrying out the
search. Two samples of 25 gms. each were taken from the two Gunny
Bags and sealed with the seal ‘S’, and given to PW5. PW2, Jaswinder
Singh the Malkhana 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.
7. 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. PW5 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 dated 08.11.1995 of the Trial
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Court reveals that independent witness Jeevan Kumar 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 PW5 and the other
independent witness Jeevan Kumar 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.
8. The appellant took a defence under Section 313 Cr.P.C. of false
implication but failed to produce any evidence with regard to the
complaint lodged by him against the C.I.D. department, a fact noticed
by the Trial Court itself. We therefore find no reason to come to any
different conclusion than that arrived at by the High Court.
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9. The only issue surviving for consideration is with regard to the
prosecution being vitiated because PW10 was the informant as also
the Investigating Officer, in view of Mohan Lal (supra). The ground
not having been raised at any earlier stage quite obviously, the
prosecution never had a chance to contest the same. It has not even
been pleaded in the appeal. Nonetheless in view of the reliance placed,
we shall examine the issue.
10. In Mohan Lal (supra) our attention had been invited to the
divergent views being taken on the issue with regard to the informant
and the investigating officer being the same person in criminal
prosecutions, and the varying conclusions arrived at in respect of the
same. The facts in Mohan Lal (supra), were indeed extremely telling
in so far as the defaults on part of the prosecution was concerned. In
that back ground it was held that the issue could not be left to be
decided on the facts of a case, impinging on the right of a fair trial to
an accused under Article 21 of the Constitution of India, observing as
follows:
“25. In view of the conflicting opinions expressed by
different two Judge Benches of this Court, the importance
of a fair investigation from the point of view of an accused
as a guaranteed constitutional right under Article 21 of
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the Constitution of India, it is considered necessary that
the law in this regard be laid down with certainty. To
leave the matter for being determined on the individual
facts of a case, may not only lead to a possible abuse of
powers, but more importantly will leave the police, the
accused, the lawyer and the courts in a state of
uncertainty and confusion which has to be avoided. It is
therefore held that a fair investigation, which is but the
very foundation of fair trial, necessarily postulates that
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 a predetermined
conclusion has to be excluded. This requirement is all the
more imperative in laws carrying a reverse burden of
proof.”
11. 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.
12. 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 lawabiding 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.
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13. Law has to cater to wide variety of situations as appear in
society. Law being dynamic, the certainty of the legislation appears
rigid at times whenever a circumstance (set of facts) appears which is
not catered for explicitly. Expediency then dictates that the higher
judiciary, while interpreting the law, considers such exception(s) as
are called for without disturbing the pith and substance and the
original intention of the legislature. This is required primarily for the
reason to help strike a balance between competing forces – justice
being the end – and also because the process of fresh legislation could
take a long time, which would mean failure of justice, and with it
erosion of public confidence and trust in the justice delivery system.
14. The principle of fair trial now informs and energises many areas
of the law. It is a constant, ongoing, evolutionary process continually
adapting itself to changing circumstances, and endeavouring to meet
the exigencies of the situation – peculiar at times – and related to the
nature of crime, persons involved, directly or operating from behind,
and so many other powerful factors which may come in the way of
administration of criminal justice, wherefore the endeavour of the
higher courts, while interpreting the law, is to strike the right balance.
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15. Societal interest therefore mandates that the law laid down in
Mohan Lal (supra) 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 (supra) 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. We
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.
16. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570, it
was observed as follows:
“37.…… A large number of trials have been held during
the period between 4.8.2005 and 18.9.2014. Electronic
records without a certificate might have been adduced
in evidence. There is no doubt that the judgment of this
Court in Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC
473 has to be retrospective in operation unless the
judicial tool of “prospective overruling” is applied.
However, retrospective application of the judgment is
not in the interest of administration of justice as it
would necessitate the reopening of a large number of
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criminal cases. Criminal cases decided on the basis of
electronic records adduced in evidence without
certification have to be revisited as and when objections
are taken by the accused at the appellate stage.
Attempts will be made to reopen cases which have
become final.”
17. That subsequent events noticed, may require revisiting of an
earlier decision, to save actions already taken was considered in
Harsh Dhingra 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. Dass case [(1999)3 SCC 362] had held the field for
nearly a decade and the Government, HUDA and the
parties to whom the allotments have been made have
acted upon and adjusted their affairs in terms of the
said decision, to disturb that state of affairs on the basis
that now certain other rigorous principles are declared
to be applied in Anil Sabharwal case [(1997) 2 Punj
LR7] would be setting the rules of the game after the
game is over, by which several parties have altered their
position to their disadvantage. Therefore, we think that
in the larger public interest and to avoid the
discrimination which this Court had noticed in the
order dated 5.12.1997 [(1998) 8 SCC 373] the decision
of the High Court in Anil Sabharwal case should be
made effective from a prospective date and in this case
from the date on which interim order had been passed
on 23.4.1996. Therefore, it would be appropriate to fix
that date as the date from which the judgment of the
High Court would become effective. If this course is
adopted, various anomalies pointed out in respect of
different parties referred to above and other instances
which we have not adverted to will be ironed out and
the creases smoothened so that discrimination is
avoided.
7. Prospective declaration of law is a device innovated
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by this Court to avoid reopening of settled issues and to
prevent multiplicity of proceedings. It is also a device
adopted to avoid uncertainty and avoidable litigation.
By the very object of prospective declaration of law, it is
deemed that all actions taken contrary to the
declaration of law, prior to the date of the declaration
are validated. This is done in larger public interest.
Therefore, the subordinate forums which are bound to
apply law declared by this Court are also dutybound to
apply such dictum to cases which would arise in future.
Since it is indisputable that a court can overrule a
decision there is no valid reason why it should not be
restricted to the future and not to the past. Prospective
overruling is not only a part of constitutional policy but
also an extended facet of stare decisis and not judicial
legislation. These principles are enunciated by this
Court in Baburam vs. C.C. Jacob, (1999) 3 SCC 362
and Ashok Kumar Gupta vs. State of U.P., (1997) 5
SCC 201.”
18. 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 (supra) is not
allowed to become a spring board for acquittal in prosecutions prior to
the same, irrespective of all other considerations. We therefore hold
that all pending criminal prosecutions, 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.
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19. The present appeals lack merit and are therefore dismissed.
…………...................CJI.
[RANJAN GOGOI]
…………...................J.
[NAVIN SINHA]
…………...................J.
[K.M. JOSEPH]
NEW DELHI
FEBRUARY 11, 2019.
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