NDPS Act | Can Convict Accused Based On Testimony Of Police/DRI Witnesses If It Inspires Confidence: Allahabad HC

With this, a bench of Justice Mohd. Faiz Alam Khan upheld the conviction of 3 men who were found guilty of the offences under Section 8(c)/20(b)(ii)(c)/25 of the NDPS Act and were sentenced to 10 years of rigorous imprisonment.

The case in brief

As per the allegations against them, 53.200 kilograms of 'charas' had been recovered from a concealed compartment of a Santro car by the DRI officials, and the appellants were found sitting therein.

After hearing counsel for the parties and considering the evidence produced before it, the trial court concluded that the prosecution had successfully proved its case beyond a reasonable doubt, and thus, the accused-appellants were convicted as aforesaid.

Challenging their conviction, the accused persons moved the HC, wherein their counsels submitted that evidence of the DRI officials being interested witnesses may not be deemed trustworthy and reliable in the absence of non-production of independent public witnesses. It was also claimed that Section 50 of the NDPS Act had not been followed/

It was also argued that Section 52A of the N.D.P.S. Act and guidelines made therein, which are of a mandatory nature, have also not been adhered to/followed and the samples, as required to be obtained in the presence of a magistrate, had not been taken.

Defending the trial court's judgment, Senior Standing Counsel Digvijay Nath Dubey, appearing for the DRI, argued that Charas had been recovered from the concealed compartment of the car, and the appellants were also found sitting therein; thus, they were in conscious possession of it.

It was submitted that the contraband was recovered from the concealed compartment of the vehicle after complying with Section 50 of the NDPS Act and obtaining their consent.

Lastly, it was argued that all the proceedings of search and seizure and the arrest were made in front of two independent prosecution witnesses. However, despite the department's efforts, they did not enter the witness box.

However, it was contended that the remaining prosecution witnesses (DRI Officials) produced before the trial court proved the factum of recovery of contraband beyond a reasonable doubt.

High Court's observations

At the outset, the Court noted that the appellants signed notice under Section 50 of the NDPS Act, and there was ample evidence available on record, which suggested that the appellants' right to be searched before the magistrate or a gazetted officer had been communicated orally as well as in writing.

“…the appellants consented to be searched by the team of the department and in pursuance of the same, they were taken to the office of the department situated at Gomti Nagar, Lucknow, where the person of the appellants along with the vehicle was searched and the contraband was recovered from the cavity of the vehicle,” the Court noted.

The Court further noted that how the sample of the contraband has been drawn by the DRI may not be doubted, and there appeared to be sufficient compliance with Section 57 of the NDPS Act.

Regarding the accused's argument concerning the non-production of witnesses, the Court noted that the absence of independent witnesses could not be the only ground to doubt and discard the otherwise reliable evidence the prosecution witnesses gave.

“It is the ugly face of today's society that nobody wants to get himself involved in criminal matters of others and they do not want to earn bad relations with the accused persons while appearing as witnesses against them and the witnesses want to remain away from Court matters and they consider the crime as the matter between police and the victim and accused, therefore, if in this background, the independent witnesses, in this case, have not steeped into the witness box for the purpose of recording their evidence, their absence alone may not be sufficient to cast any doubt on the case of the prosecution,” the Court said.

Further, the single judge stressed that the prosecution's case would be judged based on the quality of evidence tendered by the department's witnesses, as there is no rule of law or of prudence that the conviction could not be based on their testimony.

In this regard, the Court emphasised that the accused person's conviction may safely be based on the testimony of police or department witnesses, provided their testimony inspires confidence and trust in the Court.

However, the Court added, the appreciation of their evidence must be with caution.

So far as the argument regarding non-compliance with the mandatory provision of Section 52A of the NDPS Act was concerned, the Court noted that the inventory was prepared in the presence of a magistrate/judge, who also certified it.

Further, the court order and a copy of the inventory were produced before the trial court, and in this regard, the appellants raised no objection of any kind at the trial court level.

Against this backdrop, finding the evidence given by the prosecution witnesses to be reliable and trustworthy, the Court concluded that no illegality appeared to have been committed by the trial court in accepting the same and in convicting the appellants as the case of the prosecution was proved beyond a reasonable doubt before the trial court.

With this, the Court upheld their conviction, and their appeals were dismissed.

Appearances

Counsel for Appellants: Pal Singh Yadav, Ashish Kumar Singh, Prathama Singh, Ashish David Rao, Shakti Kumar Verma, Sumedha Sen, Nand Lal Pandey, Apoorva Jyoti and Ujjwal Pandey

Counsel for Respondent: Senior Standing Counsel Digvijay Nath Dubey, assisted by Jaya Pandey

Case title - Baijnath Prasad Sah Kanoo vs. Union Of India Thru. Intelligence Officer Directorate Revenue Intelligence Lko and connected matters 2024 LiveLaw (AB) 408

Case citation: 2024 LiveLaw (AB) 408

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