In a latest, landmark and laudable judgment titled Raveen Kumar vs State of Himachal Pradesh in Criminal Appeal Nos. 2187-88 of 2011 delivered as recently as on October 26, 2020, the Supreme Court has reiterated that in NDPS cases, lack of independent witnesses are not fatal to the prosecution cases. The three-Judge Bench of Apex Court comprising of Justices NV Ramana, Surya Kant and Hrishikesh Roy observed that, in such cases, the Courts have to adopt a greater degree of care while scrutinizing the testimonies of the police officers. It also observed that if they are found reliable, they can form the basis of a successful conviction.

To start with, this notable judgment authored by Justice Surya Kant for himself and Justice NV Ramana and Justice Hrishikesh Roy sets the ball rolling by first and foremost observing in para 2 that:
The appellant, Raveen Kumar, challenges the judgment dated 23.04.2010 and the order dated 18.05.2010 passed by a Division Bench of the High Court of Himachal Pradesh, Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was reversed and a sentence of two-years rigorous imprisonment with a fine of Rs. 50,000 was instead imposed.

While stating the facts, it is then pointed in para 3 that:
Briefly put, the prosecution case is that on 01.11.1994 at around 3:30 P.M., a police party while conducting traffic checks for suspected ammunition near the HP-J&K border at Surangani, stopped a Maruti van which was being driven by the appellant. The police in the course of rummaging found that the van was loaded with tins of ghee, a bag of maize, 20 bottles of honey, rajmah, angithi, thermos, stepney and some other miscellaneous articles.

A polythene bag underneath the driver's seat was also discovered. Suspecting it to contain narcotics, the police summoned two local shopkeepers (including Nam Singh, PW1) as independent witnesses. The appellant was informed of his statutory right to be searched in the presence of a magistrate or gazette officer but he consented to being searched by the police party itself. The contents of the bag were then examined and charas, in the form of dhoopbati and balls was found. It was weighed using scales obtained from a nearby shop and was found to be 1 kg and 230 gms.

After a 10 gm sample of the contraband was extracted, the charas was sealed and seized, and other procedural formalities were completed. The appellant was arrested and statement of one of the two independent witnesses – Nam Singh (PW1) was recorded. The sample was sent for chemical analysis where it was confirmed to be charas with a resin content of 34.5%. The prosecution, accordingly, charged the appellant for offence under Section 20 of the NDPS Act.

Going forward, it is then pointed out in para 4 that:
Over the course of trial, five witnesses were examined by the prosecution and various documents including PW1's statement, appellant's written consent for search, recovery memo, arrest memo, seals and site plan were adduced in evidence. PW1 was declared hostile by the prosecution as he denied having personally witnessed seizure of the charas, but nevertheless he broadly supported the prosecution case as regards procedural compliances, sealing of the recovered narcotics and presence of the appellant. PW2 to PW5, being police witnesses, corroborated the prosecution version regarding search, seizure, and other statutory compliances under the NDPS Act. The appellant, in his defence, denied possession of any prohibited substance and claimed that the charges were fabricated by the police given his earlier refusal to contribute money towards a sports meet organised by the jurisdictional police. No defence evidence, however, was led and the appellant instead focused on highlighting contradictions between statements of the police witnesses.

Furthermore, it is then observed in para 5 that:
The learned Special Judge vide his judgment dated 10.07.1995, acquitted the appellant observing that possession of a prohibited substance had not been proved beyond reasonable doubt. In reaching such conclusion, the Court placed heavy reliance on an earlier reply dated 09.11.1994 – given by the prosecution to oppose appellant's prayer for bail, wherein the police claimed that the appellant roams in the area in the vehicle in the guise of a contractor and usually deals in Contraband articles. Earlier also on 27.10.94, reliable secret information was received that he was carrying charas 7 kgs in the same vehicle. He was chased ... but he could not be nabbed ...

He has been under observation for a long time. In the opinion of the trial Court, this unambiguously negated PW2 and PW5's depositions that they did not know or previously engage with the appellant. It also became the sole factor to conclude that the police, in fact, had previous information of the alleged smuggling and the chance recovery was nothing but a deliberately crafted narrative to circumvent the legal safeguards under the NDPS Act, which consequently weakened the very foundations of the case. The Special Judge also noted that there was a contradiction in the statements of PW2 and PW5, and that the only independent witness had not supported the prosecution version.

Be it noted, what then consequently followed is stated in para 6 that:
The respondent-State appealed before the High Court, which through judgment dated 23.04.2010 held that the reasoning of the trial Court was totally fallacious. The High Court upon re-appreciating the entire evidence on record, observed that first, the trial Court had wrongly discarded the statement of PW1, for he had corroborated major parts of the prosecution version and had merely pleaded ignorance to recovery of the polythene bag. Second, the conviction was possible even in the absence of any independent witness. Third, it was shown how the version of PW2 and PW5 could be reconciled and any possible contradiction would be remote and immaterial. Fourth and most crucially, PW5 (Investigating Officer) had not been confronted with the prosecution's earlier reply to the bail application and thus the same could not be relied upon to doubt the prosecution version. The High Court further opined that the alternate theory propounded by the defence was selectively not suggested to PW5. Given these two facts, there was nothing to infer that there was any prior information and the case was clearly one of chance recovery, thus ameliorating the requirements to comply with Section 42 of the NDPS Act.

Needless to say, it is also worth noting that para 7 then envisages that:
The High Court thereafter heard the appellant on the quantum of sentence and passed a separate order of sentencing dated 18.05.2010, observing that although the quantity of the seized charas was 1 kg 23 gms but the pure resin content was only 424 gms, which was not a 'commercial quantity'. Further, giving due weight to the appellant's dependants and the over 15 years delay in trial, the High Court awarded a lenient sentence of two years rigorous imprisonment and a fine of Rs. 50,000 (or further one-year imprisonment in lieu thereof).

To put things in perspective, it is then observed in para 10 that:
Having heard learned counsel for the parties and on perusal of the record, we find that these appeals raise the following three questions of law: (A) What is the scope and essence of the High Court's appellate jurisdiction against a judgment of acquittal?; (B) What is the extent of reliance upon a document with which the other side was not confronted with during cross-examination?; and (C) Whether non-examination of independent witnesses vitiates the prosecution case? Additionally, considering that the question of sentencing arose for the first time before the High Court, the possibility of taking a lenient view in the present circumstances also requires consideration.

Quite appropriately, the Bench then goes on to hold in para 11 that:
The appellant's contention that the High Court could not have set aside a finding of acquittal, is legally unfounded. It has been settled through a catena of decisions that there is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal. An appellate Court is free to re-consider questions of both law and fact, and re-appreciate the entirety of evidence on record. There is, nonetheless, a self-restraint on the exercise of such power, considering the interests of justice and the fundamental principle of presumption of innocence. Thus, in practice, appellate Courts are reluctant to interfere with orders of acquittal, especially when two reasonable conclusions are possible on the same material. (Ramabhupala Reddy v. State of Andhra Pradesh, (1970) 3 SCC 474).

Not stopping here, the Bench then further adds in para 17 that:
The High Court has correctly noted in the present case that no opportunity to controvert this reply document was given to the prosecution, nor was PW5 confronted with it. Moreover, no weight can be accorded to such reply when the trial Court itself, while rejecting bail on 17.11.1994, had interpreted the same to conclude that the police was not having a prior information that the petitioner was carrying Charas in his Maruti Van, though, it appears, that there was a general information against the petitioner indulging in such activities.

While stating the ostensible, it is then aptly stated in para 18 that:
Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the High Court was adequately justified to interfere with and reverse the findings.

While acknowledging the importance of independent witnesses, the Bench then observes in para 19 that, It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. (Kalpnath Rai v State, (1998) AIR SC 201). However, such omissions cast an added duty on Courts to adopt a greater degree of care while scrutinizing the testimonies of the police officers, which if found reliable can form the basis of a successful conviction.

While lambasting the findings of the trial court and lauding the findings of the High Court, the Bench then minces no words to observe in para 20 that, The trial Court held that no independent witness supported the prosecution case and that the testimonies of the star police-witnesses, namely, PW2 and PW5, were contradictory. Both these observations are unreasoned and unsubstantiated by the evidence on record. The High Court, on the contrary, has given cogent and lucid reasons as to how the testimony of PW1 (alleged hostile independent witness) also substantially supports the prosecution case.

What's more, the Bench then observes in para 21 that:
Although declared hostile by the prosecution, Nam Singh (PW1), admits to being literate and having signed his statement on the spot. During cross-examination he admits to having duly perused the contents of these documents before having signed them, and of not being under any form of police pressure, thus, seriously undermining any oral statement to the contrary.

His deposition independently establishes that the Maruti van of the appellant had indeed been stopped, the appellant's consent was taken, a search had been conducted, certain items were seized and some substance had been weighed and sealed. Although PW1 claimed not to have specifically witnessed seizure of the charas, but he has not denied so either. He submits that he had gone back to his shop to attend to some customers at that stage of the search. However, he admits to having been shown the extracted sample of charas, which he identified before the trial Court. Thus, far from undermining the prosecution version, PW1's statement broadly corroborates and strengthens the seizure of contraband substance from the possession of the appellant.

Further, it is then added in para 22 that:
As regards the question of contradiction between PW2 and PW5's statements, we find that the High Court's observations are unimpeachable. It would indeed be patently wrong to suggest that PW5 deposed that the independent witnesses were called after the suspected contraband had already been recovered from underneath the driver's seat. In fact, both PW2 and PW5 unequivocally state that the polythene bag was inspected only after the independent witnesses had arrived. There might be some confusion over the timing of removal of the other substances, being the tins of ghee, honey, maize etc., but such trivialities are not material.

Taking into account all the circumstances of the case, the Bench then holds in para 23 that:
After having given a very generous consideration to the appellant's age and circumstances, as well as the delay in trial and appeal, we feel that it would serve the interests of justice to simply not disturb the sentence of two years' rigorous imprisonment and a fine of Rs. 50,000 which has been awarded by the High Court.

While according reasons for this finding, the Bench then also holds in para 24 that:
We say so for the reason that the law on minimum mandatory sentence, both at the time of commission of the offence and at the stage of appeal, prohibits any imprisonment lower than a term of ten years. Section 20(ii) of the NDPS Act, as it stood before the amendment of 2001 (Section 7, Act 9 of 2001), specified that where contravention relates to cannabis in a form other than ganja, then the same shall be punishable with rigorous imprisonment which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees.

On similar lines, it is then stated in para 25 that:
Similarly, Section 20(ii)(C) of the NDPS Act, as it stands post the amendment of 2001, specifies the same minimum mandatory punishment of ten years for possession of 'commercial quantity' of cannabis. The High Court, as the law was being misconstrued at that time, relied upon the quantity of pure resin content of 424 gms. Instead, as of now stands clarified by a co-ordinate Bench of this Court in Hira Singh v. Union of India 2020 SCC OnLine SC 382 the total quantity of the mixture, which includes the neutral substance, ought to be relevant for purpose of sentencing. The total quantity in the instant case is 1 kg 230 gms, which exceeds the definition of 'commercial quantity' as specified at Sl. No. 23 in Notification S.O. 1055 (E), dated 19.10.2001. Thus, the sentence accorded by the High Court is clearly already far too charitable.

Finally, it is then stated in the last para 26 that:
For the afore-stated reasons, the appeals are dismissed. The appellant's bail bonds are cancelled and the respondent-State is directed to take the appellant into custody to serve the remainder of his two years' sentence.

In essence, the Apex Court has once again reiterated in this leading case that in NDPS cases, lack of independent witnesses are not fatal to the prosecution cases. It is also added that police officers testimonies shall be scrutinized with greater care. But if the testimonies of police officers are found reliable, they can form the basis of a successful conviction. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.