It has to be now conceded that the statements of police witnesses cannot be doubted merely because they are official witnesses. This is more so in wake of the fact that the Jammu and Kashmir High Court has observed recently in a latest, learned, landmark and laudable judgment titled Jaspal Singh & another vs State of J&K in CRA no. 14/2013 that, “The statements of the police or Excise witnesses cannot be regarded as doubtful merely they are the official witnesses. Something more than that needs to be projected by the defence so as to create doubt in the statement of the witnesses.” A Division Bench of Jammu and Kashmir High Court comprising of Justice Tashi Rabstan and Justice Vinod Chatterji Koul made it clear that merely because prosecution has not kept any civilian or independent person as a witness, same would not necessarily lead to the conclusion that the prosecution case is doubtful and the accused have been falsely implicated in a case.
To start with, Justice Vinod Chatterji Koul who authored this commendable judgment for a Bench comprising of himself and Justice Tashi Rabstan of Jammu and Kashmir High Court sets the ball rolling in para 1 wherein it is put forth that, “By virtue of this appeal the appellants herein assail their conviction awarded by learned Sessions Judge, Kathua (for short “Trial Court”) for offence committed under Section 8 read with Section 15(C) of the Narcotics Drugs & Psychotropic Substance Act (hereinafter called as “NDPS Act”) for recovery of 720 Kg of Bukhi from their possession. The appellants were to undergo rigorous imprisonment for 20 days and to pay a fine of Rs. One lac for the commission of offence under section 8 r/w Section 15(C) NDPS Act.”
While elaborating on the prosecution case, the Bench then observes in para 2 that, “The case of the prosecution, as emerges from the challan, reveals that on 19.08.2010 at 11.00 AM, the appellants, namely, Jaspal Singh S/o Roshan Singh, being driver and owner of the vehicle, and the helper, Harpal Singh S/o Roshan Singh, both residents of Dharam Kot District Mogo, were found in a Truck bearing No.PB12H-7041. When appellants reported for clearance of Truck at Export yard Toll Post Nagri Kathua, they stated that the truck is empty, but when the truck was physically checked by Excise Guard on duty, namely, Javed Iqbal, the truck was found loaded with filled gunny bags. The said Javed Iqbal, Excise Guard, immediately reported the matter to Dheeraj Kumar, Sub Inspector, Excise Toll Post, Nagri, Kathua, who in turn reported the matter to Inspector Excise, Rohit Sharma. Ultimately the matter was brought to the notice of Shri Pardeep Singh Chib, Excise and Taxation Officer, Toll Post Nagri. The vehicle was put to thorough physical examination under the supervision of Shri Pardeep Singh Chib, ETO, along with Rohit Sharma, Inspector Excise, and two Excise Guards, namely, Javed Iqbal and Fazal Hussain. It was found that 20 gunny bags were allegedly containing Poppy Straw (Bukhi) in the Truck No.PB12H-7041. Both the convicted persons were detained on the spot. The matter was reported to the Inspector Excise Sub Range, Kathua, who came on the spot along with Executive Magistrate, Kathua. The contraband was seized and weighed in presence of the Executive Magistrate and it was found to be weighing 720 Kgs. Two samples weighing 50 gms were taken from each bag and sent to FSL for chemical analysis. The FSL report reveals the sample belonging to Poppy plant (pappaver Somniferum) and morphine was detected from them. It was found in the investigation that the appellants were transporting, smuggling commercial quantity of poppy straw illegally. After completion of the investigation, challan was filed and the charge for the commission of offence under sections 8/15 NDPS Act was proved against both the appellants. After full dress trial, both the appellants stand convicted by the Court of Principal Sessions Judge, Kathua, vide its judgment dated 14.0.2013. On 15.01.2013, the appellants were sentenced to undergo rigorous imprisonment for a period of 20 years, with a fine of Rs.1.00 Lakh each for commission of offence under Section 8 read with Section 15 (C) of NDPS Act. In default of payment of the fine, the appellants would undergo simple imprisonment for a further period of one year.”
To put things in perspective, the Bench then states in para 3 that, “Appellants have preferred the instant appeal against the judgement dated 14.01.2013 and the sentence order dated 15.01.2013 before this Court. The appellants challenge the judgement and order on the following grounds:
(a) That appellants are innocent and have not committed any offence;
(b)That the entire evidence collected during investigation by the investigating officer is in violation of the law governing the search, seizure of the alleged contraband and arrest of the appellants.
(c) That while making the search, recovery, seizure and arrest of the appellants, the provisions of NDPS Act, in particular Section 41, 42, 43 & 50 had been completely violated.
(d)That the mandate of law as envisaged under Section 52 to 67 of the NDPS Act, was completely misread.
(e) That the trial Court has committed grave error by not appreciating the fall out of failure of the prosecution to produce the poppy straw, alleged to have been recovered from the appellants, as physical evidence of occurrence and failure to produce the same has made the recovery doubtful.
(f) That no independent witness has been associated during the search and recovery of the contraband from the appellants which renders the prosecution case doubtful.
(g)That the investigating officer has forcibly obtained the signature and confession of appellants about involvement of the Truck in illegal transportation of poppy straw, which is against Article 23 of the Constitution of India, and, therefore, the prosecution case is bound to crumble.
(h)That since Inspector, Arun Kumar, Excise Sub Range Kathua, is complainant as well investigating officer of the case, the investigation of the case resulting in culmination of the appellants, stood vitiated.
(i) That there is inordinate and un explained delay in handing over the seized samples to the FSL; furthermore, the report does not disclose the actual percentage of the morphine of the narcotic drug in the sample. Thus, the samples taken from the recovered substance does not have a representative character, as such, creates doubt in the prosecution case.
(j) That because there is no mention of actual content of narcotic drug in the alleged recovered item, as such, in the absence of percentage of the quantity of narcotic drug it cannot be determined whether the quantity was small or commercial one.
(k)That the procedure while examining the appellants in terms of S. 342 of the Cr.P.C. had not been applied properly.”
Be it noted, the Bench then states in para 23 that, “Perusal of the seizure memo reveals that PW Rohit Sharma, PW Dheeraj, PW Javed Iqbal had established and proved the document EXTP2/2, EXTP-2/3, EXTP2/21, which clearly reflects that the documents of seizure have been proved in the Court. Even if for the sake of arguments, it is presumed for a while that alleged contraband was not shown to the witnesses in the court; was not the defence counsel under obligation to put relevant questions to the witnesses as to whether the contraband was shown to them in the Court or not. No such question has been put to any of the witness as regards showing of contraband in the Court as alleged to be not produced in the Court by the learned counsel for the appellants. Since in the instant case the documentary evidence is proved, whether the Poppy Straw has been shown to the witnesses in the Court for identification or not, in the opinion of the Court same does not prove fatal to the prosecution case, which has been proved by the documentary evidence i.e the alleged possession of the contraband have been proved by the witnesses by virtue of documents exhibited in the Court and the statements of PWs Dheeraj, Javed, Arun and Rohit makes it clear that the seized items have been shown to them in the court.”
It would be worthwhile to mention here that it is then enunciated in para 25 that, “At the very threshold, it is to be noticed that merely because prosecution has not kept any civilian or independent person as a witness, same would not necessarily lead to the conclusion that the prosecution case is doubtful and the appellants have been falsely implicated in this case. The guiding judgment with respect to this argument raised by the learned counsel for appellants in the case of Jarnail Singh vs State of Punjab Manu/SC/0480/2011: (2011)3 SCC 521, relied on by the counsel for the respondent State, also supports the case of the prosecution. In the aforesaid judgment, the Supreme Court has held that merely because prosecution did not examine any independent witness would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.”
While citing a relevant case law, the Bench then brings out in para 26 that, “In the case of State, Government of NCT of Delhi v Sunil and Anr. MANU/SC/0735/2000: (2001)1 SCC 652, it was held as under:
“It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate the Courts cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption would be the other way round. The official acts of the police have been regularly performed is the wise principle of presumption and recognized even by the legislature.””
What’s more, it is then stated in para 27 that, “In the present case, no question has been put to any of the witness, particularly, Arun Kumar that is why no civilian has been associated with the search, seizure and recovery of the alleged contraband on the spot. The said Arun Kumar was the main architect and he is the only person to whom this question can be put but no question has been put regarding the listing or calling of any civilian as witness in the case. Even otherwise also it has been noticed that people generally resist and refrain themselves to be kept as witness in criminal cases for the reasons best known to them. The statements of the police or Excise witnesses cannot be regarded as doubtful merely they are the official witnesses. Something more than that needs to be projected by the defence so as to create doubt in the statement of these witnesses.”
To be sure, the Bench then brings out in para 33 that, “A five Judge Bench of the Supreme Court in Mukesh Singh vs State, decided on 31.8.2020, at paragraph 12 clause II, has held as under:
“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. The contrary decision of this 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 overrules.””
As a corollary, the Bench then states in para 34 that, “In view of above law laid down by the Supreme Court, the argument raised by learned counsel for appellants is not tenable and is rejected.”
It cannot be glossed over that it is then pointed out in para 39 that, “This court is not oblivious of the fact that appellants are convicted in a very serious offence affecting the society at large. Considering the nature of the offence, so also the seriousness of the crime, there is no reason to reduce the punishment awarded to the appellants/ accused persons. Considering the age of the appellants, their poor background and the fact that appellants are behind the bars since their arrest in this case. Furthermore, in case of Balwinder Singh Vs Asst. Commissioner, Customs and Central Excise (2005) 4 SCC 146, The Honble Supreme Court has narrated the relevant factors to be considered for reduction of sentence for the offence under NDPS Act. In the said Case, the accused was convicted under the NDPS Act for the first time and therefore, the sentence was reduced from RI for 14 years to RI for 10 years.”
With regard to this present case, the Bench then holds in para 40 that, “Coming to the case in hand, there is no report from the prosecution side that the appellants are the repeaters of the offence, this suggest that they are the first timers. So, in view of law laid down by the Supreme court in the case of Balwinder Singh (supra) coupled with facts and circumstances of the case in hand and the fact that there is no record to show that accused persons/appellant had previously committed such offences, the instant case is also considered on the lines of above cited judgement and as a corollary thereof, the sentence of appellants is reduced from RI for 20 years to RI 15 years, However, the penalty imposed by the Trial Court shall remain the same.”
As a consequence, the Bench then holds in para 41 that, “For the foregoing reasons, the appeal is partly allowed. The impugned judgement and order of conviction passed on File no.74/Challan, by the court of Sessions Judge, Kathua, is modified. The sentence to undergo rigorous imprisonment for 20 years is reduced to 15 years. And insofar as the penalty of Rs.1.00 Lakh is concerned, that shall remain same.”
In conclusion, the bottom-line of this notable judgment is that statement of police witnesses cannot be doubted merely because they are official witnesses. The Bench has also cited relevant case laws to substantiate its valid point. It has also accorded adequate and able reasons for holding so. There is no valid reason to disbelieve them which alone explains why Jammu and Kashmir High Court too believed them in this case too! No denying it!
Sanjeev Sirohi