Himachal Pradesh High Court: In a case wherein the appeal was filed against the conviction of the appellant by the Special Judge, the Division Bench of Tarlok Singh Chauhan* and Ranjan Sharma, JJ., opined that evidence of official witnesses was not to be disbelieved merely because they were official witnesses. The Court opined that unless it had been proved contrary, the presumption is that every witness was impartial and independent. Statements of official witnesses could be the basis for the conviction of the accused, but before basing conviction on the evidence of official witness, strict scrutiny with care and caution was required.
Background
On 13-02-2015, the police party on traffic and patrolling duty noticed the petitioner walking on NH-21 and had a carry bag in his right hand. When he saw the police part, he turned back and tried to flee from the spot. The petitioner tried to throw the carry bag below the road towards the river side, but the carry bag after striking with the safety grills instilled at the spot and came back on the road.
The person was overpowered by the police party and thereafter, he was interrogated. Subsequently, the carry bag was checked by the Inspector and it was found that it contained a polythene envelope sealed with Khaki cello tape. Thereafter, the efforts were made to associate the independent witnesses in the investigation but being the secluded place and no passengers or driver of the vehicles were ready to become a witness. Since, no independent witnesses were available, the Inspector associated police officials as witnesses. After checking the polythene envelope, it was found that it contained a chapati and a long shape black coloured substance wrapped in transparent polythene, which was later identified as charas or cannabis.
After the police investigation was completed, the charge-sheet was filed against the appellant and a prima facie charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was framed against the petitioner.
The Special Judge after evaluating the evidence, convicted the appellant and thus, the appellant filed the present appeal.
Analysis, Law, and Decision
Considering the appellant’s contention that no safety grills were showed in the spot map, the Court opined that the Investigating Officer was neither an engineer nor an architect, who could have been expected to prepare a map with sufficient accuracy and even otherwise the footnote attached with the spot map would be sufficient. The Court opined that it would have been desirable if the grills were shown in the spot map, but non-depicting of the grills would not in any way cast a doubt in the present case.
Further, considering the appellant’s contention that no independent witnesses had been examined, the Court relied on Sathyan v. State of Kerala, 2023 SCC OnLine SC 986 and opined that the evidence of official witnesses was not to be disbelieved merely because they were official witnesses. The Court opined that unless it had been proved contrary, the presumption is that every witness was impartial and independent. Statements of official witnesses could be the basis for the conviction of the accused, but before basing conviction on the evidence of official witness, strict scrutiny with care and caution was required. Thus, the Court opined that in cases where the evidence of the official witnesses was found to be cogent, reliable and credible, conviction could be based only on the evidence of the official witnesses.
Further, with regard to the appellant’s contention that the conscious possession of the contraband had not been specifically put to the appellant, the Court opined that what law required was not the exact language of the statute. In the instant case, it was required that the accused attention had to be drawn to every inculpatory material to enable him to explain.
The Court opined that this was the basic fairness of the criminal trial and failures in this area might gravely imperil the validity of the trial itself. However, if such omission had occurred, it did not ipso facto vitiated such an omission and prejudice occasioned by such defect must be established by the accused. The Court opined that if the evidentiary material was not being put to the accused, the Court must ordinarily avoid such material from consideration. However, this was not the situation in the present case, as when the appellant was examined under Section 131 of Criminal Procedure Code, 1973, the essence of the accusation was duly brought to the appellant’s notice.
Thus, the Court dismissed the present appeal.
[Nadeem Akram v. State of Himachal Pradesh, 2023 SCC OnLine HP 1464, decided on 11-10-2023]
*Judgment authored by- Justice Tarlok Singh Chauhan
Advocates who appeared in this case :
For the Appellant: Rupesh Upadhyay and Vir Bahadur Verma, Advocate;
For the Respondent: Y.W. Chauhan, Senior Additional Advocate General with Sharmila Patial, Additional Advocate General with J.S. Guleria, Deputy A.G.
Buy Code of Criminal Procedure, 1973 HERE
