Rajesh Dhiman vs The State Of Himachal Pradesh on 26 October, 2020

caselaws.org

Supreme Court of India
Rajesh Dhiman vs The State Of Himachal Pradesh on 26 October, 2020Author: Surya Kant

Bench: N.V. Ramana, Surya Kant, Aniruddha Bose

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1032 of 2013

Rajesh Dhiman ….. Appellant(s)
VERSUS
State of Himachal Pradesh …..Respondent(s)

WITH
CRIMINAL APPEAL NO. 1126 OF 2019

Gulshan Rana ….. Appellant(s)
VERSUS
State of Himachal Pradesh …..Respondent(s)

JUDGMENT

Surya Kant, J.

Heard over video conferencing.

2. These Criminal Appeals have been preferred against a

common judgment of the High Court of Himachal Pradesh dated
Signature Not Verified

Digitally signed by
SATISH KUMAR YADAV
Date: 2020.10.26
16:53:50 IST
Reason:

28.08.2012, by which the appellants’ acquittal under Section 20

of the Narcotic Drugs and Psychotropic Substances Act, 1985

Page | 1
(“NDPS Act”) was reversed and a sentence of ten years rigorous

imprisonment and fine of Rs 1,00,000 each was awarded.

FACTS

3. The facts giving rise to both the appeals are common. On

09.01.2002, at about 1.00 P.M., a police team led by ASI

Purushottam Dutt (PW8) and also comprising Constable Sunder

Singh (PW1), Constable Bhup Singh (PW2) and Constable Bhopal

Singh (PW7) were checking traffic at Shamshar when a

motorcycle without a number plate was spotted. Gulshan Rana

(appellant in Criminal Appeal No. 1126 of 2019) was driving the

vehicle and Rajesh Dhiman (appellant in Criminal Appeal No.

1032 of 2013) was seated on the pillion with a backpack slung

over his shoulders. They were signalled to stop and documents of

the motorcycle were demanded. Meanwhile, another vehicle was

halted and its occupants Karam Chand (PW3) and Shiv Ram were

included in the search. An attempt was made to associate local

residents to witness the subsequent proceedings, but none

agreed. Subsequently, the appellants were given option to be

searched in the presence of a Magistrate or Gazetted Officer but

they consented to be searched by the police on the spot itself. The

police then discovered polythene bags containing charas from the

Page | 2
backpack carried by Rajesh Dhiman. The polythene bags were

weighed and found to be 3kg 100gms. After separating some

samples, the charas was duly sealed and handed over to Karam

Chand (PW3) who later deposited it at the police station. After

completion of personal search of the appellants, they were

formally arrested.

4. The prosecution examined nine witnesses to support their

case of chance recovery, which included eight police officials and

one independent witness, Karam Chand (PW3). Whereas the

police witnesses strongly corroborated each other’s testimony,

PW3 was declared hostile for he claimed not to have witnessed

the seizure of the narcotics. The spot map, arrest memo, search

memos, consent memo, seizure memo, rukka seals, chemical

analysis report and samples of charas were also adduced as

evidence. In response, both appellants asserted their innocence.

Although the appellants did not lead any defence evidence but

they propounded an alternative version and claimed that while

returning from a nearby temple, they had given a lift to an

unidentified third person. The backpack containing the recovered

narcotics was claimed to be owned by the said stranger, who

allegedly escaped from the spot when the motorcycle was stopped

Page | 3
by the police.

5. The learned Special Judge through judgment dated

28.12.2002 acquitted the appellants holding that charges under

the NDPS Act had not been proved beyond reasonable doubt. The

trial Court viewed that the witnesses on the spot had either not

been examined or turned hostile. Thus, each individual element

of the prosecution case, namely, from preparation of personal

search memo to consent memo to recovery memo to notifying

appellants’ relatives about their arrest or handing over of seal to

PW3 had come under cloud for want of independent

corroboration. Failure to include any other locally­resident as a

neutral witness in terms of Section 100(4) of the Code of Criminal

Procedure, 1973 (“CrPC”), was also held to cast serious

aspersions on the prosecution version. Relying upon a decision of

the Rajasthan High Court in Gyan Chand v. State of

Rajasthan1, learned Special Judge was also critical of the fact

that the complainant himself was the investigating officer which

caused serious prejudice to the fairness of the investigation. The

trial Court thus concluded that since two versions had emerged,

the one which was favourable to the accused ought to be

1
1993 Cri LJ 3716.

Page | 4
preferred. Consequently, it held that no charas was recovered

from the appellants as deposed by the independent witness.

6. However, the High Court in appeal, set­aside the acquittal

and convicted the appellants for possession of charas under

Section 20 of the NDPS Act. The High Court observed that

although association of independent witnesses in NDPS cases is

always desirable but their non­examination would not per se be

fatal to the prosecution case, especially when due efforts are

made by the police to secure their presence. Adverting to the

facts of the case in hand, the High Court found no reason to draw

an adverse inference against non­examination of independent

witnesses as PW8 had deposed that an unsuccessful attempt was

made to join persons from the locality, and Shiv Ram had been

won over. The High Court re­appreciated the entire evidence

on record and firmly held that the chain of events commencing

from seizure of contraband to its chemical analysis, was complete

in all respects. In the absence of any allegation of bias, it was

held to be wrong to discard the otherwise impeccable statements

of the official witnesses. The High Court dissected a catena of

judgments and opined that the police officers’ testimonies ought

to be subjected to a vigorous standard of scrutiny and

Page | 5
corroboration; which, after careful and cautious appraisal, had

been met in the instant case. The quantity of charas recovered

was held to be ‘commercial’ and consequently a sentence of 10

years rigorous imprisonment and fine of Rs.1,00,000 (rupees one

lakh) was imposed on each of the appellants.

CONTENTIONS OF PARTIES

7. We have heard counsels for the parties at a considerable

length and gone through the record. Learned counsel for the

appellants vehemently contended that the High Court ought not

to have reversed the well­merited acquittal as two distinct

versions of the same incident had emerged from the evidence on

record, and thus the one beneficial to the appellants ought to be

adopted, given the presumption of innocence under our legal

system. It was highlighted that the complainant and investigating

officer were one and the same, thus, casting doubts on the

fairness and neutrality of the investigation. Non­examination of

Shiv Ram and non­corroboration by Karam Chand (PW3) was

projected as being fatal to the prosecution case. A subtle

distinction was sought to be made between cases where

independent witnesses were not present and where during cross­

examination they actively controverted the prosecution version. It

Page | 6
was also argued that the High Court ought not to have convicted

the appellants only on the premise that the effect of non­

examination of independent witness was inconsequential, for the

trial Court’s acquittal was predicated on many other legs which

have not been engaged with by the High Court at all, including

the alternate version given by PW3, read with the statements of

the appellants under Section 313 CrPC, as well as the non­

compliance of Section 50 of the NDPS Act.

8. Learned State counsel, on the other side, drew our attention

to a recent judgment of the Constitution Bench of this Court in

Mukesh Singh v. State (Narcotic Branch of Delhi) 2, which has

authoritatively settled the law on permissibility of the

complainant also being the investigating officer in cases under

the NDPS Act. Controverting the appellants’ contention regarding

non­examination of independent witnesses, an attempt was made

to portray the evidence of the official witnesses as being

unimpeachable and inspiring confidence; and therefore,

rescission by one independent witness being wholly insufficient

for the appellants to earn acquittal.

2
2020 SCC OnLine SC 700.

Page | 7
ANALYSIS

I. Whether bias was caused by complainant also being

the investigating officer?

9. The primary issue debated by both sides concerns the effect

of the complainant in the present case, PW8, also being the

investigating officer. The appellants sought to contend that a long

line of cases, ending with Mohan Lal v. State of Punjab3, has

laid down the legal proposition that investigation by the

complainant himself would be contrary to the scheme of the

NDPS Act, thus jeopardizing the entire trial.

10. Suffice to say that the law on this point is no longer res

integra and the controversy, if any, has been set at rest by the

Constitutional Bench of this Court in Mukesh Singh (supra).

The earlier position of law which allowed the solitary ground of

the complainant also being the investigating officer, to become a

spring board for an accused to be catapulted to acquittal, has

been reversed. Instead, it is now necessary to demonstrate that

there has either been actual bias or there is real likelihood of

bias, with no sweeping presumption being permissible. It would

be worthwhile to extract the following conclusions drawn in the
3
(2018) 17 SCC 627.

Page | 8
afore­cited judgment:

“102. From the above discussion and for the reasons stated
above, we conclude and answer the reference as under:

I. That the observations of this Court in the cases of
Bhagwan Singh v. State of Rajasthan, (1976) 1 SCC 15;
Megha Singh v. State of Haryana, (1996) 11 SCC 709; and
State by Inspector of Police, NIB, Tamil Nadu v. Rajangam,
(2010) 15 SCC 369 and the acquittal of the accused by this
Court on the ground that as the informant and the
investigator was the same, it has vitiated the trial and the
accused is entitled to acquittal are to be treated to be
confined to their own facts. It cannot be said that in the
aforesaid decisions, this Court laid down any general
proposition of law that in each and every case where the
informant is the investigator there is a bias caused to the
accused and the entire prosecution case is to be disbelieved
and the accused is entitled to acquittal;

II. In a case where the informant himself is the
investigator, by that itself cannot be said that the
investigation is vitiated on the ground of bias or the
like factor. The question of bias or prejudice would
depend upon the facts and circumstances of each
case. Therefore, merely because the informant is the
investigator, by that itself the investigation would not
suffer the vice of unfairness or bias and therefore on
the sole ground that informant is the investigator, the
accused is not entitled to acquittal. The matter has to be
decided on a case to case basis. A contrary decision of this

Page | 9
 Court in the case of Mohan Lal v. State of Punjab, (2018) 17
SCC 627 and any other decision taking a contrary view that
the informant cannot be the investigator and in such a case
the accused is entitled to acquittal are not good law and they
are specifically overruled.”
[emphasis supplied]

11. We, therefore, see no reason to draw any adverse inference

against PW8 himself investigating his complaint. The appellants’

claim of bias stems from the purported delays, non­compliance of

statutory mandates and non­examination of independent

witness. In effect, the appellants are seeking to circuitously use

the very same arguments which have individually been held by

the High Court to be factually incorrect or legally irrelevant.

Although in some cases, certain actions (or lack thereof) by the

Investigating Officer might indicate bias; but mere deficiencies in

investigation or chinks in the prosecution case can’t be the sole

basis for concluding bias. The appellants have at no stage

claimed that there existed any enmity or other motive for the

police to falsely implicate them and let the real culprits walk free.

Further, such a huge quantity of charas could not have been

planted against the appellants by the police on its own.

12. The appellants have creatively sought to argue that failure

Page | 10
of the police to investigate the alternate theory proffered at the

stage of Section 313 CrPC, has caused serious prejudice to them

and that reason alone is sufficient not to hold them guilty

‘beyond reasonable doubt’. They have explicitly relied upon Paras

18 and 19 of Mukesh Singh (supra), which we deem appropriate

to extract as follows:­

“18. If the defence of the accused is not properly investigated
to rule out all other possibilities, it cannot ever be said that the
prosecution has established the guilt “beyond reasonable
doubt”. A tainted investigation by a complaint who is a
“witness” himself to a substantial ingredient of an offence,
would in fact give rise to a “doubt” and it is impossible that the
case can be established on the parameter of “beyond
reasonable doubt”;

19. A person accused of criminal offence punishable with a
peril to his life or liberty, enjoys certain rights under the
Constitution or through long standing development of criminal
jurisprudence. Any action which impinges or affects those
rights would be said to cause “prejudice to an accused”. That
in the case of Rafiq Ahmad v. State of U.P., (2011) 8 SCC 300,
it is observed and held that prejudice to an accused or failure
of justice has to be examined with reference to (i) right to fair
trial (ii) presumption of innocence until pronouncement of guilt
and (iii) the standards of proof. It is observed in the said
decision that whenever a plea of prejudice is raised by the
accused, it must be examined with reference to the above

Page | 11
 rights and safeguards, as it is the violation of these rights
alone that may result in the weakening of the case of the
prosecution and benefit to the accused in accordance with
law;”

13. At the outset, we may clarify that the observations relied

upon by the appellants, are not findings, conclusion or resolution

by this Court in Mukesh Singh (supra). Instead, a perusal of the

judgment shows that it was a contention put forth by one of the

parties ­ which the Bench eventually disagreed with. Further, not

only the alternative version projected by the appellants is vague

and improbable, but it escapes our comprehension how non­

investigation of a defence theory disclosed only at an advanced

stage of trial, could indicate bias on part of the police.

II. Whether alternate version has been established and

what is the effect of lack of independent witnesses?

14. The contention of the appellants that they are entitled to be

acquitted on the ground of there being two varying versions of the

same incident does not carry any weight. We may firstly clarify

that the expression “reasonable doubt” is a well­defined

connotation. It refers to the degree of certainty required of a court

before it can make a legally valid determination of the guilt of an

Page | 12
accused. These words are inbuilt measures to ensure that

innocence is to be presumed unless the court finds no reasonable

doubt of the guilt of the person charged. Reasonable doubt does

not mean that proof be so clear that no possibility of error exists.

In other words, the evidence must only be so conclusive that all

reasonable doubts are removed from the mind of an ordinary

person.

15. This Court in K. Gopal Reddy v. State of Andhra

Pradesh,4 explained that “if two reasonably probable and evenly

balanced views of the evidence are possible, one must necessarily

concede the existence of a reasonable doubt. But, fanciful and

remote possibilities must be left out of account. To entitle an

accused person to the benefit of a doubt arising from the

possibility of a duality of views, the possible view in favour of the

accused must be as nearly reasonably probable as that against

him.” The appellants in the present appeal have miserably failed

to make out a case where two reasonable conclusions can be

reached on the basis of evidence on record.

16. Secondly, it is useful to point out that in their respective

statements under Section 313, CrPC the appellants have claimed

4
(1979) 1 SCC 355.

Page | 13
that when they were coming after visiting a temple, “a person

obtained lift from us on vehicle”. When they reached Ani Bazar,

the police officials demanded the documents of the vehicle and

for that purpose they were taken to police station “along with the

vehicle and in the meanwhile third person fled away from the

place of the incident.” This claim that the seized contraband was

being carried by an unknown stranger, who had mysteriously

appeared on the side of the road seeking a lift and had equally

incognizably vanished into thin air as soon as the motorcycle was

stopped by the police is ex­facie fanciful, and is without even a

shred of evidence. A critical appreciation of such version merely

bolsters the prosecution case. The appellants effectively have

ended up admitting that they were present on the spot; some

interaction with the police had indeed taken place; that there was

sufficient cause to stop the vehicle, and that such search was

based not on any prior information but was spontaneous and

thus, it was a case of chance recovery.

17. Reliance can also not be placed on Karam Chand’s (PW3)

testimony by the appellants. First, his statement that he was told

by the police that there was a third person on the spot is hearsay

and inadmissible in view of Section 60 of the Indian Evidence

Page | 14
Act, 1872. Second, his credibility had effectively been impeached

by the prosecutor during trial. PW3 denies in his examination­in­

chief being on the spot or a party to any proceeding; but later he

makes a poor attempt to contradict the prosecution story. He also

admits to having travelled to the trial Court on the morning of his

deposition along with Shiv Ram, who had been won over by the

appellants. Third, given that PW3 himself claims to not being

present at the time of incident, his statement can at best be

construed to mean that no charas was recovered in front of him,

and not that no charas was recovered from the appellants at all.

18. As correctly appreciated by the High Court in detail, non­

examination of independent witnesses would not ipso facto entitle

one to seek acquittal. Though a heighted standard of care is

imposed on the court in such instances but there is nothing to

suggest that the High Court was not cognizant of this duty.

Rather, the consequence of upholding the trial Court’s reasoning

would amount to compulsory examination of each and every

witness attached to the formation of a document. Not only is the

imposition of such a standard of proof unsupported by statute

but it is also unreasonably onerous in our opinion. The High

Court has rightly relied upon the testimonies of the government

Page | 15
officials having found them to be impeccable after detailed re­

appreciation of the entire evidence. We see no reason to disagree

with such finding(s).

III. Whether High Court erred in reversing acquittal in

appeal?

19. There is no gainsaid that High Courts are well within their

power to reverse an acquittal and award an appropriate sentence;

though they cautiously exercise such powers in practice.

Illustratively, a few permissible reasons which would necessitate

such interference by the High Court include patent errors of law,

grave miscarriage of justice, or perverse findings of fact.

20. Here, the trial Court appreciated facts in a mechanical

manner and dismissed the prosecution case based on a mis­

interpretation of law, particularly qua satisfying the burden of

proof. Hence, there were more than enough reasons for the High

Court to interfere with the acquittal and arrive at a different

finding.

21. The appellants’ claim that the High Court erred in not

considering non­compliance with Section 50 of the NDPS Act at

the stage of appeal, is also premised upon a mistaken

Page | 16
understanding of the law. As held in State of Himachal

Pradesh v. Pawan Kumar5, the safeguards for search of a

person would not extend to his bag or other article being carried

by them. Given how the narcotics have been discovered from a

backpack, as per both the prosecution and defence versions,

there arises no need to examine compliance with Section 50 of

NDPS Act.

CONCLUSION

22. For the afore­stated reasons, we do not find any merit in

these appeals which are accordingly dismissed. The appellants’

bail bonds, if any, are cancelled and the respondent­State is

directed to take them into custody to serve the remainder of their

ten­year sentences. All other pending applications are disposed of

accordingly.
…………………………….. J.
(N.V. RAMANA)
…………………………… J.
(SURYA KANT)
……………………………J.
(HRISHIKESH ROY)
NEW DELHI
DATED : 26.10.2020

5
(2005) 4 SCC 350.

Page | 17