VARINDER KUMAR versus STATE OF HIMACHAL PRADESH

Citation: [2019] 2 S.C.R. 707 · Decided: 11-02-2019 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Dismissed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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707
VARINDER KUMAR
v.
STATE OF HIMACHAL PRADESH
(Criminal Appeal Nos.2450-2451 of 2010 )
FEBRUARY 11, 2019
[RANJAN GOGOI, CJI, NAVIN SINHA AND
K. M. JOSEPH, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.20(ii)(c) – Appellant was apprehended with two Gunny Bags on
his scooter which contained varying quantities of  ‘Charas’ – Trial
Court acquitted the appellant on the grounds of non-compliance
with s.100(4) of Cr.P.C. and ss. 50, 52 and 57 of the NDPS Act, and
that the seal prepared at the time of seizure was not produced in the
Court – High Court reversed the acquittal and convicted appellant
u/s.20(ii)(c) of the NDPS Act – On appeal, held: The conclusion of
the trial court was perverse in view of the fact that two specimen
seal impressions were marked as Exhibits PH and PK – S.50 of
NDPS Act is not applicable as the recovery was not from the person
of the appellant but the gunny bags carried on the scooter – There
was no material to conclude that PW-5 and the other independent
witness were not respectable persons – There was no violation of
s.100(4) of Cr.P.C. – In any event, no prejudice on that account
was demonstrated – Further, s.52 & 57 of NDPS are directory in
nature, is of no avail to the appellant – Therefore, no reason to
interfere 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, and
which alone vitiates the conviction and placed reliance upon Mohan
Lal v. State of Punjab (AIR 2018 SC 3853) – Held: If the facts in
Mohan Lal case were telling with regard to the prosecution, the
facts in the present case are equally telling with regard to the accused
– Appellant has history of previous convictions – 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 case is not allowed to become
a spring board for acquittal in prosecutions prior to the same,
irrespective of all other considerations – Therefore, all pending
[2019] 2 S.C.R. 707
707
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708                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
criminal prosecutions, trials and appeals prior to the law laid down
in Mohan Lal shall continue to be governed by the individual facts
of the case.
Dismissing the appeals, the Court
HELD: 1. Two samples of 25 gms. each were taken from
the two Gunny Bags and sealed with the seal ‘S’, and given to
PW-5.  PW-2-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. [Para 6][711-H; 712-A-B]
2. 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.  PW-5 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 of
the Trial Court reveals that independent witness 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 PW-5 and the other independent witness 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.  [Para 7][712-C-E-]
4. The only issue surviving for consideration is with regard
to the prosecution being vitiated because PW-10 was the
informant as also the Investigating Officer, in view of Mohan Lal
case. [Para 9][712-G]
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