Section 20(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985


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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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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  8. 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.
  9. 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.”
  10. 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.
  11. 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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  12. 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.
  13. 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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  14. 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.
  15. 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.”
  16. 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.
  17. 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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