Supreme Court Upholds Conviction in NDPS Case: Rajesh Dhiman vs. State of Himachal Pradesh (2020)

Date of the Judgment: 26 October 2020

Citation: 2020 INSC 745

Judges: N.V. Ramana, J., Surya Kant, J., Hrishikesh Roy, J. The judgment was authored by Justice Surya Kant.

Can a conviction be upheld when the complainant is also the investigating officer, and what is the impact of not examining independent witnesses? The Supreme Court of India recently addressed these critical questions in a case involving the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court examined the validity of a conviction where the police officer who filed the complaint also conducted the investigation, and where independent witnesses were not examined. This case highlights the importance of procedural fairness and the standard of proof required in criminal cases, particularly those involving drug offenses.

Case Background

On 09 January 2002, at approximately 1:00 PM, a police team was conducting traffic checks at Shamshar. They stopped a motorcycle without a number plate. Gulshan Rana was driving, and Rajesh Dhiman was the pillion rider carrying a backpack. The police asked for the motorcycle’s documents. Two other individuals, Karam Chand and Shiv Ram, were included as witnesses. The police attempted to find local residents to witness the search, but no one agreed. The appellants were given the option to be searched in the presence of a Magistrate or Gazetted Officer but consented to be searched by the police on the spot. The police discovered polythene bags containing 3 kg 100 gms of charas in Rajesh Dhiman’s backpack. Samples were taken, and the charas was sealed and handed over to Karam Chand, who deposited it at the police station. The appellants were then arrested.

Timeline:

Course of Proceedings

The Special Judge acquitted the appellants on 28 December 2002, citing the lack of independent corroboration of the prosecution’s case. The trial court noted that witnesses on the spot were either not examined or turned hostile. The court also criticized the fact that the complainant was also the investigating officer. The High Court of Himachal Pradesh reversed the acquittal on 28 August 2012, convicting the appellants under Section 20 of the NDPS Act. The High Court held that while independent witnesses are desirable, their non-examination is not fatal to the prosecution if due efforts were made to secure their presence. The High Court found the chain of events from seizure to chemical analysis to be complete. The High Court also held that the testimonies of the official witnesses were reliable.

Legal Framework

The case primarily revolves around Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which deals with the punishment for contravention in relation to cannabis. The High Court convicted the appellants under this section, finding that they possessed a commercial quantity of charas. The case also touches upon Section 100(4) of the Code of Criminal Procedure, 1973 (CrPC), which pertains to the requirement of independent witnesses during searches. The Supreme Court also considered Section 50 of the NDPS Act, which outlines the conditions under which personal searches can be conducted.

Section 20 of the NDPS Act states:

“20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted thereunder,—
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis,
shall be punishable,—
(i) where such contravention relates to clause (a), with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
and
(ii) where such contravention is in relation to clause (b),—
(A) and the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(B) and the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(C) and the contravention involves commercial quantity, with rigorous imprisonment for a term 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 but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

Section 100(4) of the CrPC states:

“(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Arguments

Appellants’ Arguments:

• The High Court should not have reversed the acquittal because two versions of the incident emerged, and the one beneficial to the appellants should have been adopted.
• The complainant and investigating officer being the same person casts doubts on the fairness of the investigation.
• Non-examination of Shiv Ram and non-corroboration by Karam Chand (PW3) are fatal to the prosecution’s case.
• The High Court should not have convicted the appellants solely on the premise that non-examination of independent witnesses was inconsequential.
• The trial court’s acquittal was based on multiple factors, including the alternate version given by PW3, the statements of the appellants under Section 313 of the CrPC, and non-compliance with Section 50 of the NDPS Act.

State’s Arguments:

• The Supreme Court’s Constitution Bench in Mukesh Singh v. State (Narcotic Branch of Delhi) has settled the law on the permissibility of the complainant also being the investigating officer in NDPS cases.
• The evidence of the official witnesses was unimpeachable and inspired confidence.
• The rescission by one independent witness was insufficient for the appellants to earn acquittal.

The appellants argued that the failure of the police to investigate their alternate theory that a third person was carrying the bag, prejudiced their case. They relied on paragraphs 18 and 19 of Mukesh Singh, which discuss the importance of a fair investigation and the presumption of innocence.

The State argued that the evidence of the official witnesses was reliable and that the non-examination of independent witnesses was not fatal to the prosecution’s case. The State also relied on the judgment in Mukesh Singh to argue that the complainant being the investigating officer does not automatically invalidate the investigation.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether bias was caused by the complainant also being the investigating officer?
2. Whether the alternate version has been established, and what is the effect of the lack of independent witnesses?
3. Whether the High Court erred in reversing the acquittal in appeal?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

On the issue of the complainant also being the investigating officer:

• Bhagwan Singh v. State of Rajasthan, (1976) 1 SCC 15 – Supreme Court of India
• Megha Singh v. State of Haryana, (1996) 11 SCC 709 – Supreme Court of India
• State by Inspector of Police, NIB, Tamil Nadu v. Rajangam, (2010) 15 SCC 369 – Supreme Court of India
• Mohan Lal v. State of Punjab, (2018) 17 SCC 627 – Supreme Court of India
• Mukesh Singh v. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700 – Supreme Court of India. This case overruled the earlier position of law that the complainant also being the investigating officer, would be contrary to the scheme of the NDPS Act.

On the issue of reasonable doubt and alternate versions:

• K. Gopal Reddy v. State of Andhra Pradesh, (1979) 1 SCC 355 – Supreme Court of India

On the issue of non-compliance of Section 50 of NDPS Act:

• State of Himachal Pradesh v. Pawan Kumar, (2005) 4 SCC 350 – Supreme Court of India

Legal Provisions Considered:

• Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 – Deals with punishment for contravention in relation to cannabis.
• Section 100(4) of the Code of Criminal Procedure, 1973 – Pertains to the requirement of independent witnesses during searches.
• Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 – Outlines the conditions under which personal searches can be conducted.

Judgment

How each authority was viewed by the Court:

• Bhagwan Singh v. State of Rajasthan, (1976) 1 SCC 15*, Megha Singh v. State of Haryana, (1996) 11 SCC 709*, and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam, (2010) 15 SCC 369*: The Court held that these cases were to be treated as confined to their own facts and were overruled by Mukesh Singh.
• Mohan Lal v. State of Punjab, (2018) 17 SCC 627*: The Court explicitly overruled this judgment, which had held that the informant cannot be the investigator.
• Mukesh Singh v. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700*: The Court relied heavily on this Constitution Bench judgment, which authoritatively settled the law that the complainant can also be the investigating officer unless actual bias is shown.
• K. Gopal Reddy v. State of Andhra Pradesh, (1979) 1 SCC 355*: The Court used this case to explain the concept of “reasonable doubt” and how to consider alternate views of evidence.
• State of Himachal Pradesh v. Pawan Kumar, (2005) 4 SCC 350*: The Court relied on this case to clarify that Section 50 of the NDPS Act does not extend to the search of a bag or article being carried by a person.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The legal position that the complainant can also be the investigating officer, as settled in Mukesh Singh, unless bias is proven.
• The improbability and lack of evidence supporting the appellants’ alternate version.
• The reliability of the official witnesses’ testimonies.
• The fact that the appellants admitted their presence at the spot and that the recovery was a chance recovery.
• The inapplicability of Section 50 of the NDPS Act to the search of a bag.

The Supreme Court’s reasoning was based on a combination of factual analysis and legal interpretation. The Court weighed the factual aspects of the case, such as the appellants’ presence at the spot and the improbability of their alternate version, against the legal principles established in previous cases and statutes. The Court’s emphasis on the legal position established in Mukesh Singh and the inapplicability of Section 50 of the NDPS Act indicates a strong reliance on legal considerations.

The Court rejected the appellants’ arguments, emphasizing that the alternate version was not credible and that the non-examination of independent witnesses was not fatal to the prosecution’s case. The Court also clarified that the safeguards under Section 50 of the NDPS Act do not extend to the search of a bag being carried by a person.

The Court’s reasoning was based on a careful examination of the facts, the evidence, and the relevant legal principles. The Court’s decision was unanimous, with all three judges agreeing on the outcome.

“The appellants have creatively sought to argue that failure of the police to investigate the alternate theory proffered at the stage of Section 313 CrPC, has caused serious prejudice to them and that reason alone is sufficient not to hold them guilty ‘beyond reasonable doubt’.”

“The expression “reasonable doubt” is a well-defined connotation. It refers to the degree of certainty required of a court before it can make a legally valid determination of the guilt of an accused.”

“Given how the narcotics have been discovered from a backpack, as per both the prosecution and defence versions, there arises no need to examine compliance with Section 50 of NDPS Act.”

Key Takeaways

• The complainant in a case under the NDPS Act can also be the investigating officer unless actual bias or a real likelihood of bias is demonstrated.
• The non-examination of independent witnesses is not fatal to the prosecution’s case if due efforts were made to secure their presence.
• An alternate version presented by the accused must be credible and supported by evidence to create a reasonable doubt.
• Section 50 of the NDPS Act, which provides safeguards for personal searches, does not apply to the search of a bag or article being carried by a person.
• High Courts have the power to reverse an acquittal if there are patent errors of law, grave miscarriages of justice, or perverse findings of fact.

Directions

The Supreme Court directed that the appellants’ bail bonds be cancelled and that they be taken into custody to serve the remainder of their ten-year sentences.

Development of Law

The ratio decidendi of this case is that the complainant can also be the investigating officer in cases under the NDPS Act, unless actual bias or a real likelihood of bias is demonstrated. This judgment reaffirms the position established in Mukesh Singh v. State (Narcotic Branch of Delhi), which overruled the previous position of law. It also clarifies that the non-examination of independent witnesses is not fatal to the prosecution’s case if due efforts were made to secure their presence, and that Section 50 of the NDPS Act does not apply to the search of a bag or article being carried by a person. The Court also upheld the power of the High Court to reverse an acquittal in cases of patent errors of law.

Conclusion

The Supreme Court dismissed the appeals, upholding the High Court’s conviction of the appellants under Section 20 of the NDPS Act. The Court held that the complainant can also be the investigating officer unless bias is proven, that the alternate version presented by the appellants was not credible, and that the non-examination of independent witnesses was not fatal to the prosecution’s case. The Court also clarified that Section 50 of the NDPS Act does not apply to the search of a bag. The judgment reinforces the importance of a fair trial while also recognizing the practical challenges faced by law enforcement in drug-related cases.