Merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated

Harshit Sharma | Amity Law School, Madhya Pradesh | 7th January 2020

Surinder Kumar v. State of Punjab CRIMINAL APPEAL NO. 512 OF 2009

FACTS OF THE CASE

1. Per the prosecution case, when the police were at patrolling, they saw the appellant accused coming from the opposite direction to that of the officials carrying a bag. On seeing the police officials, he turned towards the Southern bank of the canal, but was apprehended on suspicion.
2. The search of the bag resulted into recovery of 1 kg 750 grams of opium. Upon seizure, 2 samples of the 10 grams each were separated and were duly sealed and taken into possession. 
3. On appearance in the court, the documents relied upon by the prosecution were supplied to the accused. A charge under Section 18 of the Act was framed against him, to which he pleaded not guilty and claimed trial.
4. The special judge, Ferozepur convicted the appellant-accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ₹1,00,000/- (Rupees One Lakh) in default of payment of the same, to undergo rigorous imprisonment for another period of one year. 
5. The same was upheld by the Punjab & Haryana High Court vide its order dated 22.04.2008, which is impugned in the present appeal before the Hon’ble Supreme Court of India.
6. The main contention on which the appeal is preferred is that, the independent witnesses in the present case were not examined & the conviction was based solely on the testimony of the official witnesses, which makes the case fatal and also that S.K. Asthana, ASP who is claimed to have joined to the party by the police, was not even examined and in fact he was not there and opium was not recovered in his presence.
7. Furthermore, there was no violation of Section-50 of the NDPS Act 1985. 

ISSUES RAISED

1. Whether the non-examination of independent witnesses will hamper the justice delivery system and vitiate the trial on basis of the same? 
2. Whether the conviction which is based solely on the examination of official witnesses be set-aside on this ground itself? 
3. What is the applicability of the Mohan Lal Case Judgment (IO/Informant same) in the present case? 

RULING OF THE COURT/ THE COURT HELD THAT

The Hon’ble Supreme Court upheld the conviction and were in agreement with the findings of the Ld. Trial Court while dismissing the appeal and observed the following: 

1. “Since Joginder Singh, ASI was not in possession of the seals of either of the SHO or of the Investigating Officer, the question of tampering with the case property by him did not arise at all.”
2. “In that view of the matter, the Trial Court and the High Court have rightly held that non-examination of Joginder Singh, did not, in any way, affect the case of prosecution. Further, it is evident from the report of the Chemical Examiner, Ex. P-10, that the sample was received with seals intact and that the seals on the sample, tallied with the sample seals. In that view of the matter, the chain of evidence was complete.”
3. “As much as S.K. Asthana, ASP was not examined by 30.04.1999, a request for an extension was sought by the Special Judge, Ferozepur and it was adjourned to 17.05.1999. Even by 17.05.1999, the ASP could not be served as he was on leave. In view of such reasoning assigned by the Trial Court, as well as the High Court, merely because S.K. Asthana, ASP was not examined, it cannot be said that prosecution has failed to prove its case. It is clear from the evidence on record that he was summoned at the time of search and seizure and only in his presence search was conducted, as such, there is no violation of Section 50 of the NDPS Act.”
4. “It is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of cross examination, has stated that efforts were made to join independent witnesses, but none were available. merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.”
5. “In the case of Varinder Kumar this Court held that all pending criminal prosecutions, trials and appeals prior to law laid down in Mohan Lal, shall continue to be governed by individual facts of the case.”