Absence of Independent Witness, Not Fatal to Prosecution: Delhi HC

In the case of Harish Yadav v State (NCT of Delhi), the Delhi High Court held that absence of independent witnesses could not be sufficient to raise the question on the case of the prosecution. 

BACKGROUND

Based on the information received, the Police apprehended the appellant at GPO, Kashmere Gate. The Police received information about the arrival of the appellant on 21.03.2014 between 8:30 p.m. and 9:30 p.m. for the supply of heroin and conducted the raid at the place so informed. The raiding party reached on the spot at about 8:15 p.m. Certain public witnesses declined to join the police party when they were asked to do so.

The appellant arrived GPO, Kashmere Gate at about 8:55 p.m. The informant who supplied the information also identified the appellant and left. The Police, after that, apprehended the appellant. He was carrying a white bag on his left hand. On being apprehended, the Police made him aware about his legal right i.e. to be searched in the presence of a Gazetted Officer or a Magistrate which was denied by the appellant and was also served a notice under section50 of the NDPS Act.

The Police then searched the bag of the appellant found out one t-shirt and one transparent polythene bag tied with a rubber band. This transparent bag was found containing heroin weighed 600 grams. Two samples, each containing 5 gram, was sent for testing. The report of the chemical examiner also confirmed the samples for heroin which were sent for the testing. The Police arrested the appellant and lodged FIR no 30/2014 under Section 21 of the NDPS Act.

ISSUE INVOLVED

Whether the absence of Public/Independent witness would be fatal to the case of the prosecution?

Submissions of the Appellant

  1. The appellant denied the evidence of the respondent and stated that he was innocent and falsely implicated in this case. He alleged that all evidence was planted by the police officials who also took his signatures on the blank paper and nothing recovered from his possession.
  2. The appellant, in his defence, said that he was arrested from Jhajjar, Haryana. He accompanied his friend Bhupender who had to give him Rs. 50,000 to Jhajjar for meeting his maternal uncle. The uncle of Bhupender had a gas agency there. He further said that he & Bhupender met his maternal uncle at Jhajjar bus stand in a Maruti Alto and on their way they were stopped by a vehicle. Four persons in civil dresses came out of the Indigo and searched them. They recovered two mobile phones from the possession of Bhupender. He further contended that they were asked to sit in the Indigo. Later on, they were taken to Laxmi Nagar police station where those persons demanded five lacs from both of them for their release. Bhupender paid, so he was released, but the appellant could not meet their demands; therefore, he was implicated in this case.
  3. He contended that the testimony of the police officials could not have relied upon the as no public witnesses had joined the proceedings. He contended that the appellant was allegedly apprehended from a busy spot where commercial as well residential units were established. Still, no one joined the proceedings and contention of the Police that certain persons were asked could not be accepted.
  4. The appellant further said that the case made out by the Police was highly improbable as it could not be believed that he could have travelled from Rajasthan to Bihar with only open bag carrying heroine and no bus/railway was discovered from the appellant.
  5. The appellant relying on the judgment of Arif Khan vs State of Uttarakhand (2018) AIR SC 2123 contended that provisions of section 50 NDPS act were not complied with because the appellant was not searched in the presence of a Gazetted Officer or Magistrate.

SUBMISSIONS OF THE RESPONDENT

The respondent contended that the examination of the quality of the witnesses and their testimony matters; therefore, the absence of any public witnesses cannot be fatal for the prosecution. He further contended the inapplicability of the provisions of section 50 of the NDPS Act as the search of the bag carried by the appellant lead to the recovery of the heroine and not the search of the appellant. Satet upon the recent decision of the Supreme Court in Than Kunwar vs State of Haryana Crl. A. No. 2172/2011, to support their submission.

FINDINGS OF THE COURT

  • The court relying on the judgment of Kalpnath Rai vs State (1998) AIR SC 201 held that the public witnesses should be asked to join the proceeding, but their absence was not necessarily fatal to the case of the prosecution. Therefore, the testimony of the official’s witnesses ought to be rejected on the ground that no public witnesses joined the proceedings seems unpersuasive.
  • The testimony of the appellant could not be relied upon as neither the family members nor any relative of the appellant had filed any complaint alleging that he was picked up from Jhajjar. Furthermore, the maternal uncle of the appellant did not file any complaint regarding his nephew Bhupender, and the appellant could not recall the number of the car when asked about the same.
  • Lack of any identification or mobile phone in possession of the appellant was held to be insufficient to raise any doubt in respect of the case of the prosecution. It further held that it would be unusual for a person to travel without any mobile or identification.
  • The provisions of section 50 of NDPS were complied with because the appellant was also informed about his legal rights to search in the presence of a Gazetted Officer or Magistrate. The Police informed him that the said the persons could be called on the spot for his search, but the appellant denied using any of his legal rights. The appellant was served notice under the said section of the Act. The contents of the notice were read and understood by the appellant. The appellant had understood his right to be searched before the Gazetted Officer or Magistrate, but he declined from doing so.
  • The court observed that Police fully complied the provisions of section 50 of the NDPS Act.

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