Chandigarh,June 9,2022: While dealing with an appeal in a matter pertaining to the NDPS Act, the Punjab and Haryana High Court has held that the prosecution case can be duly established solely on the testimony of official witnesses and the absence of independent witnesses would not by itself render the prosecution case bad and liable to be rejected.
Justice Vinod S. Bhardwaj asserted that the testimony of the police witnesses cannot be disbelieved or discredited without any cogent material on record by the defence which establishes malice or false implication by the Agency thus warranting corroboration of the testimony of the official witnesses through some independent person.
Also, reflecting on the purpose of the act, the Bench remarked,
“Economic condition of an accused or a person convicted of crime cannot be an immunity against criminal conduct. Drug abuses have been recognized as the single most powerful social offender. Its impact on people addicted to it is catastrophic. The object of the Act to make the stringent provision for control and regulation of operation relating to those drugs and substances… The Court must be strong against any construction which tends to reduce the entity of the statue.”
The present appeal was preferred against the judgment of conviction passed by the Judge, Special Court, Chandigarh convicting the appellant for commission of an offence under Section 22 of the Narcotic Drugs and Psychotropic Substances, Act 1985 (“NDPS Act”).
The accused was caught by the Police party carrying a bag containing 12 injections of Buprenorphine 2 ML each and 12 injections of Pheniramine Maleate 10 ML each.
Primarily, the case of the petitioner’s counsel was that the Sub Inspector who apprehended the appellant-accused and carried out the search did not comply with the mandate of Section 50 of the NDPS Act and no offer was made to the appellant to be searched before a Gazetted Officer or a Magistrate. Also, the Counsel argued that no independent witness was joined by the prosecution and as such, the recovery in question was shrouded by suspicious circumstances and that the material discrepancies in the prosecution evidence were not taken into consideration.
It was also the Counsel’s case that the provision of Rule 66 of the NDPS Rules, 1985 (“NDPS Rules”) was ignored and that the quantity recovered from the possession of the appellant was within the permissible limit as per the said rule and that the recovery in question cannot be said to be from the conscious possession of the appellant.
On the contrary, the State Counsel argued that Section 50 of the NDPS Act would not be applicable because it was a case of chance recovery wherein the person of the appellant-accused was not searched as the recovery was effected from a polythene carry bag. He further submitted that the contraband in question was of commercial quantity and that the appellant-accused could not furnish any explanation to claim exemption of Rule 66 for being in possession of such a huge quantity and to suggest that the contraband was for personal use.
On the question of non-joining of independent witnesses, it was submitted that the proceedings initiated under the NDPS Act cannot be held to be bad or vitiated merely because an independent witness was not joined or that only the official witnesses deposed before a Court.
Also, the Counsel argued that the prosecution duly established the recovery of commercial quantity from the conscious possession of the appellant-accused and that there was no evidence of tampering with the recovered contraband. It was thus argued that the judgment of conviction was based upon sound reasoning and proper appreciation and due consideration of the evidence.
After considering these arguments, the Court observed, with respect to the first argument on the applicability of Section 50 of the NDPS Act, that undisputedly there was no prior information or secret information with the Investigating Officer and the appellant was nabbed on the basis of suspicious conduct, hence, there was no necessity for the Investigating Officer to make an offer in terms of Section 50 of the NDPS Act.
Hence, while holding that the Investigating Officer cannot be presumed to have been aware of the contents being carried in the plastic carry bag held by the appellant-accused and there could be any material being carried in the carry bag, the contraband being amongst one of them, Justice Bhardwaj added,
“As the contraband in question has not been recovered from personal search of the appellant-accused, hence, Section 50 of the NDPS Act would not be applicable”.
Next, on the question of non-joining of independent witnesses, the Court was of the opinion that the prosecution made reasonable efforts to associate independent witnesses and that the non-willingness of the independent witnesses to associate themselves with the prosecution does not render the recovery as ‘bad’ as the need to associate independent witnesses is only additional prudence exercised and is not a mandatory requirement of the law.
Elaborating further on this argument, the Court added that a prosecution case can be duly established solely on the testimony of official witnesses and absence of independent witnesses would not by itself render the prosecution case bad and liable to be rejected. Also, Justice Bhardwaj asserted that the testimony of the police witnesses cannot be disbelieved or discredited without any cogent material on record by the defence which establishes malice or false implication by the Agency thus warranting corroboration of the testimony of the official witnesses through some independent person.
However, the Court held that the same is not a cardinal rule and it cannot be held that the prosecution case is liable to fail solely for want of independent corroboration. The official witnesses examined in this case were found by the Court to be credible.
Thirdly, the Court added that a mere allegation of material discrepancy cannot be per se accepted unless any such discrepancy is pointed out and that such contradiction/discrepancy ought to be fundamental to the case.
“Not every minor discrepancy renders the prosecution case bad or liable to be set aside”, the Bench held.
Fourthly, on the argument of exemption of Rule 66 of the Rules, the Court observed that when a person is in possession of a Psychotropic substance for his personal medical use and the quantity thereof does not exceed 100 dosage units at a time, he is entitled to plead a defence under the said Rule 66 of the NDPS Rules.
Justice Bhardwaj held in this respect that the quantity recovered should be for individual personal medical use and thus it is incumbent upon the accused to bring on record such evidence that would show that the seized contraband was required for the personal medical use of the appellant or for institutional research use.
Fifthly, on the question of Section 5 of the NDPS Act, the Court added that it is apparent from a perusal of the bare provision itself that presumption of illicit articles is deemed conscious unless proved otherwise. The Court added that the burden lies upon the accused to be discharged by him and the same is not on the prosecution.
Lastly, the Court held that the economic condition of an accused or a person convicted of a crime cannot be an immunity against criminal conduct; drug abuse has been recognized as the single most powerful social offender and its impact on people addicted to it is catastrophic.
Justice Bhardwaj asserted that the object of the Act was to make the stringent provision for control and regulation of operation relating to those drugs and substances and that the Court must be strong against any construction which tends to reduce the entity of the statue.
The present appeal was dismissed.