2002 JTR(SC) 94
2002 1 AICLR 608 ; 2002 AIR(SC) 731 ; 2002 AIR(SCW) 363 ; 2002 1 ALD(Cri)(SC) 584 ; 2002 AllMR(Cri)(SC) 897 ; 2002 1 BBCJ(SC) 141 ; 2002 1 CCR(SC) 96 ; 2002 2 CHN(SC) 79 ; 2002 CriLR 183 ; 2002 1 Crimes(SC) 269 ; 2002 CrLJ 1006 ; 2002 1 EastCrC(SC) 373 ; 2002 145 ELT 500 ; 2002 1 JCC 266 ; 2002 1 JLJR(SC) 2002 ; 2002 2 JLJR(SC) 16 ; 2002 1 JT 235 ; 2002 2 PLJR(SC) 34 ; 2002 1 RCR(Cri) 577 ; 2002 2 RLW(Raj) 240 ; 2002 1 Scale 288 ; 2002 2 SCC 676 ; 2002 SCC(Cri) 469 ; 2002 1 WLC 208 ; 2002 KHC 1158 ; 2002 1 Supreme 232
2002(1) Supreme 232
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
N. Santosh Hegde & Doraiswamy Raju, JJ.State of Haryana -Appellant
versus
Vikram Singh -Respondent
Criminal Appeal No. 1001 of 2000
Decided on 22-1-2002
Counsel for the Parties :
For the Appellant : J.P. Dhanda and K.P. Singh, Advocates.
For the Respondent : Harjinder Singh, Advocate.
IMPORTANT POINT
Where FIR filed in the case did not contain any averment to the effect that an offer to be searched before a Gazetted Officer or a Magistrate was made and this factum was sought to be proved by oral evidence of a panch witness who was a stock witness, the High Court rightly held that the search and seizure in this case was not proved to be in accordance with law.
Act
Referred
:EVIDENCE ACT : S.27
INDIAN PENAL CODE : S.34, S.302, S.307, S.149
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.50, S.18
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50 mandates that before searching a person suspected of an offence, the investigating officer must inform them of the right to be searched before a Gazetted Officer or a Magistrate. Sections 18 and 302 of the Indian Penal Code address offences related to illicit trafficking and the punishment for murder, respectively, while Section 34 addresses acts done by several persons in furtherance of a common intention. Section 307 addresses attempts to murder, and Section 149 addresses offences by members of unlawful assemblies. These provisions are directly relevant as the respondent was charged under Section 18 of the Act, and the central legal dispute hinged on the procedural requirement under Section 50. The Evidence Act, Section 27, relates to the admissibility of certain confessions and statements, contextualizing the reliance on oral evidence in the trial. The interplay of these statutory provisions frames the legality of the search and the evidentiary foundation of the prosecutions case.
(B) Key legal principles include the mandatory procedural requirement to inform a person of the right to be searched before a Gazetted Officer or a Magistrate prior to a search, the necessity of corroborating oral evidence with documentary proof to ensure reliability, and the evaluation of witness credibility, particularly when a witness has turned hostile or has a history of providing inconsistent testimony. The case also underscores the principle that an accused cannot be convicted on the basis of uncorroborated oral evidence, especially when such evidence is shown to be unreliable.
Facts of the case:
The respondent was apprehended and found in possession of 15 kg of opium. The prosecution alleged that an offer to search the respondent before a Gazetted Officer or a Magistrate was made, in compliance with Section 50 of the Act. The respondent was tried and convicted by the Additional Sessions Judge, who sentenced him to rigorous imprisonment and a fine. The conviction was based primarily on the oral testimony of prosecution witnesses, including a witness who had previously been a stock witness for the police and had turned hostile in this case.
Findings of Court:
The High Court held that the prosecution failed to prove that the offer of search was made as required by Section 50. The Court noted the absence of documentary evidence and found the oral evidence of the prosecution witnesses, particularly the stock witness, to be unreliable and not credible. Consequently, the High Court set aside the conviction and acquitted the respondent.
Issues:
Whether the prosecution established the mandatory procedural requirement under Section 50 of the Act by proving that the offer of search was made to the accused before a Gazetted Officer or a Magistrate. Whether the oral evidence of the prosecution witnesses, especially a stock witness who turned hostile, was sufficient to support a conviction.
Ratio Decidendi:
The prosecution must prove compliance with procedural safeguards, such as informing the accused of the right to be searched, beyond mere assertion. Conviction cannot be based solely on uncorroborated and unreliable oral testimony, particularly when key witnesses have demonstrated hostility or inconsistency.
Result:
The appeal is dismissed, and the judgment of the High Court setting aside the conviction is upheld.
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50 mandates that before searching a person suspected of an offence, the investigating officer must inform them of the right to be searched before a Gazetted Officer or a Magistrate. Sections 18 and 302 of the Indian Penal Code address offences related to illicit trafficking and the punishment for murder, respectively, while Section 34 addresses acts done by several persons in furtherance of a common intention. Section 307 addresses attempts to murder, and Section 149 addresses offences by members of unlawful assemblies. These provisions are directly relevant as the respondent was charged under Section 18 of the Act, and the central legal dispute hinged on the procedural requirement under Section 50. The Evidence Act, Section 27, relates to the admissibility of certain confessions and statements, contextualizing the reliance on oral evidence in the trial. The interplay of these statutory provisions frames the legality of the search and the evidentiary foundation of the prosecutions case.
(B) Key legal principles include the mandatory procedural requirement to inform a person of the right to be searched before a Gazetted Officer or a Magistrate prior to a search, the necessity of corroborating oral evidence with documentary proof to ensure reliability, and the evaluation of witness credibility, particularly when a witness has turned hostile or has a history of providing inconsistent testimony. The case also underscores the principle that an accused cannot be convicted on the basis of uncorroborated oral evidence, especially when such evidence is shown to be unreliable.
Facts of the case:
The respondent was apprehended and found in possession of 15 kg of opium. The prosecution alleged that an offer to search the respondent before a Gazetted Officer or a Magistrate was made, in compliance with Section 50 of the Act. The respondent was tried and convicted by the Additional Sessions Judge, who sentenced him to rigorous imprisonment and a fine. The conviction was based primarily on the oral testimony of prosecution witnesses, including a witness who had previously been a stock witness for the police and had turned hostile in this case.
Findings of Court:
The High Court held that the prosecution failed to prove that the offer of search was made as required by Section 50. The Court noted the absence of documentary evidence and found the oral evidence of the prosecution witnesses, particularly the stock witness, to be unreliable and not credible. Consequently, the High Court set aside the conviction and acquitted the respondent.
Issues:
Whether the prosecution established the mandatory procedural requirement under Section 50 of the Act by proving that the offer of search was made to the accused before a Gazetted Officer or a Magistrate. Whether the oral evidence of the prosecution witnesses, especially a stock witness who turned hostile, was sufficient to support a conviction.
Ratio Decidendi:
The prosecution must prove compliance with procedural safeguards, such as informing the accused of the right to be searched, beyond mere assertion. Conviction cannot be based solely on uncorroborated and unreliable oral testimony, particularly when key witnesses have demonstrated hostility or inconsistency.
Result:
The appeal is dismissed, and the judgment of the High Court setting aside the conviction is upheld.
JUDGMENT
Santosh Hegde, J.-Being aggrieved by the judgment of the High Court of Punjab & Haryana at Chandigarh passed in Criminal Appeal No. 442-SB/1988, the State of Haryana is in appeal before us. The respondent herein was charged with an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ), and was tried for the same by the Additional Sessions Judge, Ambala, who found him guilty of the said offence and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs. 1 lakh. It was further directed that in default of payment of fine, he shall undergo further R.I. for 5 years.
2. It was the prosecution case that on 24.1.1987 the respondent, when apprehended and searched, was found carrying 15 kg. of opium. The prosecution case further stated that as required under Section 50 of the Act, the respondent was duly informed of his right of being searched before a Gazetted Officer or a Magistrate but he declined that offer, and based on the Panchnama of search and the evidence of the three witnesses, he was found guilty by the learned Additional Sessions Judge and sentenced, as stated above.
3. In appeal, the High Court came to the conclusion that the prosecution has not established that as a matter of fact, the respondent was informed of his right under Section 50. It also noticed that the FIR filed in the case did not contain any averment to the effect that an offer to be searched before a Gazetted Officer or a Magistrate was made, hence, held that the prosecution case, that such an offer was made was an afterthought. It also came to the conclusion that the oral evidence of the prosecution witnesses cannot be relied upon and the Panch witness who was examined, was a stock witness who had earlier, in similar cases, given evidence on behalf of the prosecution and in this case had turned hostile, therefore, it was not safe to rely upon such evidence, accordingly, allowed the appeal and set aside the conviction and sentence imposed on the respondent.
4. As stated above, the State is in appeal before us. We have heard learned counsel for the parties and perused the records. It is an admitted fact that the offer of search as stipulated under Section 50 of the Act is not supported by any documentary evidence. Both in regard to this factum of offer of search and to establish its case, the prosecution relies upon the oral evidence. In our opinion, the High Court has rightly come to the conclusion that PW-1 who was examined in this regard has turned hostile and has not supported the case of the prosecution. The High Court has also noticed the fact that PW-1 was a stock witness for the Police. That being the case, the High Court felt it was not safe to rely on the evidence of PW-1, the Inspector, and PW-3, the Assistant Sub-Inspector. In such circumstances, we are not persuaded to take a contrary view. More so in the background of the fact, the search and seizure in this case was not proved to be in accordance with law.
5. In the result, we find no infirmity in the impugned judgment of the High Court. Accordingly, this appeal fails and the same is dismissed.
(N.K.R.) Appeal dismissed.
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