Tc 59 Appellant

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RGNUL N RGNUL NATIONAL MOOT COURT COMPETITION 2016 TEAM CODE:

TC-59

’

BEFORE THE HON

BLE HIGH COURT OF PUNJAB & HARYANA

IN THE MATTERS OF:

SATNAM SINGH & BALBIR SINGH

...APPELLANTS

V.

STATE OF PUNJAB

ESPONDENT ...R ESPONDENT

CRIMINAL APPEAL NO. __/2015

’

ON SUBMISSION TO THE HON

BLE HIGH COURT OF PUNJAB & HARYANA

UNDER §374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973

ESPONDENT WRITTEN SUBMISSIONS ON BEHALF OF R ESPONDENT

ESPONDENT COUNSEL ON BEHALF OF R ESPONDENT

MEMORIAL ON BEHALF OF R ESPONDENT ESPONDENT

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RGNUL N RGNUL NATIONAL MOOT COURT COMPETITION 2016

TABLE OF CONTENTS

LIST OF ABREVIATIONS ......................................................... ............................................................................... ........................................... ..................... iii INDEX OF AUTHORITIES............. AUTHORITIES................................... ............................................ ............................................ ............................................ ......................iv STATEMENT OF JURISDICTION................... JURISDICTION......................................... ............................................ ............................................. ....................... viii STATEMENT OF FACTS ............................................ .................................................................. ............................................ ..................................... ...............ix ISSUES RAISED............................................................... ..................................................................................... ............................................. ................................. ..........xi SUMMARY OF PLEADINGS................................... PLEADINGS......................................................... ............................................ ....................................... .................xii WRITTEN PLEADINGS .......................................... ................................................................. ............................................. ......................................... ................... 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED SPECIAL COURT HAS NOT ERRED IN CONVICTING AND SENTENCING THE APPELLANTS UNDER THE PROVISIONS OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 .................................. ........................................................ ...................................... ................ 1 A. THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THE APPELLANTS IN THE TRIAL COURT ........................................ .............................................................. ......................................... ................... 1 A.I The trial court has rightly appreciated the facts of the case ..................................... ......................................... .... 1

A.I.1 The hypothesis put forward by the prosecution in the trial court was the most plausible 1 A.I.2 No evidence has been tendered to prove false implication............................ implication............................................... ................... 2 A.I.3 There are no wedges in the case of the prosecution .............................................. ......................................................... ........... 3 A.II The Appellants have failed to discharge the Burden under § 35 and § 54 of the NDPS Act ............................................ ................................................................... ............................................. ............................................ ......................................... ...................4

A.II.1 The appellants have been identified by the witnesses .......................................... ..................................................... ........... 4

i ESPONDENT MEMORIAL ON BEHALF OF R ESPONDENT

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A.II.2 Testimony of official off icial witnesses cannot be discarded ........................................... ...................................................... ........... 4 A.II.3 Physical and Conscious possession has been established ............................................... ............................................... 5 A.II.4 Burden thus cast has not been discharged .......................... ................................................ ............................................. ....................... 7 A.III Non-Compliance of mandatory provisions of the NDPS Act has not taken place ... 8 A.IV The Search and Seizure by the Police stands the scrutiny of Law ............................. ............................. 9

A.IV.1 There has been a compliance of § 165 of the Code of Criminal Procedure, 1973 ........ 9 A.IV.2 The police was empowered u/§ 43 to search sear ch and seize s eize ............................................... ............................................... 11 A.IV.3 There has been a compliance of § 100 of the Cr.PC and § 50 of the NDPS Act......... 14 B. THE SENTENCING OF BALBIR SINGH IS NOT ERRONEOUS IN LAW. ................ 16 B.I The Veracity of the Document does not depend on its it s Marking ..................................... ....................................... .. 16 B.I.1 The marking of evidence has no relation whatsoever with the proof of the document............................................. .................................................................... ............................................. ............................................ ....................................... ................. 16

B.I.2 Question as to veracity was not contested in the trial court .......................................... ............................................ .. 17 B.II Unmarked evidence is just a procedural flaw and not a lacunae in the prosecution case.17 case. 17 B.II.1 Discrepancy is not contradiction ....................................................... .............................................................................. ............................ ..... 17 B.II.2 Totality Totalit y of the circumstances must be considered consi dered ............................................ ......................................................... ............. 17 B.II.3 The discrepancy of o f not marking the th e judgment can be rectified .................................... .................................... 18 B.II.4 Non-framing of charge char ge does not vitiate trial ............................................ ................................................................. ..................... 19 B.III The sentence awarder to Balbir Singh is in accordance accordance with the provisions of the NDPS Act. ........................................... .................................................................. ............................................. ............................................. ....................................... ................19

PRAYER ........................................... ................................................................. ............................................ ............................................ ........................................... ..................... 21

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LIST OF ABREVIATIONS

&

And

¶

Paragraph

§

Section

AIR

All India Reporter

All.

Allahabad

Anr.

Another

BOM LR

Bombay Law Review

Cr. LJ

Criminal Law Journal

FIR

First Information Report

i.e.

That is

ILR

Indian Law Reports

LR

Law Report

Mh.L.R.

Maharashtra Law Reporter

Ors.

Others

RCR

Rent Control Reporter

SCC

Supreme Court Cases

SC

Supreme Court

SCR

Supreme Court Reports

SCW

Supreme Court Weekly Reporter

Vol

Volume

Ver.

Verses

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INDEX OF AUTHORITIES STATUTES

Code of Criminal Procedure, 1973 Indian Evidence Act, 1872 Narcotic Drugs and Psychotropic Substances Act, 1985 CASES

Abdul Rashid Ibrahim Mansuri v. State of Gujarat, AIR 2000 SC 821, ................................... ................................... 7 Ankit Kumar v. State of Punjab, CRL. A. 1097/2009 .................................. ........................................................ ........................... ..... 13 Bakhshish Singh v. State of Punjab, AIR 1971 SC 2016. ................................... ......................................................... ...................... 4 Babubhai Odhavji Patel, etc v State of Gujrat, AIR 2006 SC 102 .......................................... .......................................... 12 Bahadur Singh v State of Hayana, (2010) 4 SCC 445 ............................................. ............................................................. ................ 13 Baldev Singh v. State of Haryana, 2016 CriLJ 154 ............................................ ................................................................... ....................... 4 Baldev Singh v. State of Haryana, 2016 CriLJ 154. ........................................... .................................................................. ....................... 6 Bama Kathari Patil v. Rohidas Arjun Madhavi [2004 (2) Mh.L.J.752]. ................................. ................................. 17 Chandrappa and Ors. v State of Karnataka, (2007) 4 SCC 415. ............................................ .............................................. .. 19 Dehal Singh v. State of Himachal Pradesh, AIR 2010 SC 3594. .............................. .............................................. ................ 3 Durgo Bai and Anr. v State of Punjab, AIR 2004 SC 4170................................................... 4170..................................................... .. 13 Emperor v. Param Sukh, AIR 1926 All 147. ................................ ...................................................... ............................................. ....................... 9 Girja Prasad(dead) by L.Rs. v. State of M.P., AIR 2007 SCW 5589. ........................... ....................................... ............ 5 In Re: Presidential Poll v. Unknown, (1974) 2 SCC 33. ....................................................... ......................................................... .. 21 Jagdish v. State of Madhya Pradesh, 1981 SCC 676. ....................... .............................................. ....................................... ................ 18 Jagiro v State, CRL. A.1021 of 2013 ............................................ ................................................................... ........................................... .................... 12 Jagiro v State, CRL. CR L. A.1021 of 2013 ………………………………………………………..14 Joseph Fernandez v State of Goa AIR2000SC3502 ........................................... ................................................................ ..................... 16 Joseph Fernandez v State of Goa, AIR 2000 SC 3502 ¶3. .................................................... ...................................................... .. 14 iv MEMORIAL ON BEHALF OF R ESPONDENT ESPONDENT

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Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758..................... 758. ........................................... .................................... ............. 17 Karnail Singh v. State of Haryana, 2009 CriLJ 4299. ................................................ ............................................................. ............. 13 Khet Singh v. Union of India, AIR 2002 SC 1450 ........................... ................................................. ....................................... ................. 11 Krishan Kanwar (Smt.) Alias Thakuraeen v. State of Rajasthan 2004 (2) SCC 608 ..... 15 Leela Ram v. State of Haryana and Anr., AIR 1999 SC 3717. .......................................... ................................................. ....... 5 Madan Lal and Anr. v. State of Himachal Pradesh, AIR 2003 SC 3642. .................................. .................................. 6 Malkhan Singh and Ors. v. State of M.P., (2003) 5 SCC 746. ............................... .................................................. ................... 4 Matru v. State of U.P., (1971) 2 SCC 75. ............................................ ................................................................... ...................................... ............... 4 Mohan Lal v. State of Rajasthan, AIR 2015 SC 2098. ............................................ .............................................................. .................. 6 Mohanlal Shamji Sani v. Union of India, (AIR 1991) SC 1346. ........................................... ............................................. .. 19 Nabarun v. State of West Bengal, 2016 2016 Cri LJ 49. ......................................... ............................................................... ........................... ..... 2 Noor Aga v. State of Punjab and and Anr., (2008) 16 SCC SCC 417 ........................................... ...................................................... ........... 7 Pritam Singh v. State Of Punjab, 2007(4)RCR(Criminal)712............................................ ................................................ ..... 18 Pyli Yacoob v. State, AIR 1953 TC 466........................................... ................................................................. ....................................... ................ 11 R v. Ismail, 39 B 326: 16 BOM LR 934. .......................................... ................................................................. ....................................... ................ 20 Ram Swaroop v. State Stat e of Delhi, AIR 2013 SC 2068. .......................................... ................................................................ ...................... 5 Ramjee Rai and Ors. v. State Stat e of Bihar, (2006) 13 SCC 229. .......................................... ..................................................... ........... 5 Rajendra Prasad v. The Narcotic Cell Through its Officer in Charge, Delhi AIR 1999 SC 2292.................................... 2292.......................................................... ............................................ ............................................ ............................................ ................................ .......... 19 Rajendra Prasad v. The Narcotic Cell Through Its Officer in Char ge, Delhi AIR 1999 SC 2292.................................... 2292.......................................................... ............................................ ............................................ ............................................ ................................ .......... 18 Ramadhan v State of Rajasthan, Rajast han, 2012 (1) RCR (Criminal) 790 ............................................ .............................................. .. 12 Rambharose v. Rammanlal, AIR 1932 Oudh 249(2 ........................................... ................................................................ ..................... 11 Rashid Khan And Others v. The State, 1993 CriLJ 3776. .......................................... ....................................................... ............. 20 R.V.E. Venkatachala v. Arulmigu Viswesaraswam, (2003) 8 SCC 752. .......................... ................................ ...... 17 v


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Sait Tarajee Khimchand And Ors. v.Yelamarti Satyam alias Satt eyya and Ors, AIR 1971 SC 1865.................................... 1865.......................................................... ............................................ ............................................ ............................................ ................................ .......... 16 Shiam Lal v. King/Emperor, AIR 1927 All 516 .......................................... ................................................................. ............................ ..... 11 Shivaji Sahebrao Bobade &Anrs. v. State of Maharashtra, 1974 SCR (1) 489. ...................... ...................... 19 State of Delhi v. Sunil and Anr., (2001) 1 SCC 652. ........................................... ................................................................. ...................... 5 State Government of NCT of Delhi v. Sunil and Anr., AIR 2000 SCW 4398. ....................... ....................... 20 State of Haryana v Jarnail Jarnai l Singh and Ors 2004 CriLJ 2541 ........................................... .................................................... ......... 11 State of Himachal Pradesh v. Lekh Raj 1999 4 Crimes Cri mes 337 (SC) ........................................... ........................................... 17 State, NCT of Delhi v Malvinder Singh, 2008 (1) ALT (Cri) 382 .......................................... .......................................... 13 State of Punjab v. Kulwant Singh 1995CriLJ744 ........................................... .................................................................. ........................... .... 8 State of Punjab v. Leela, (2009) 12 SCC 300 .......................................... ................................................................. .................................. ........... 5 State of Punjab v Balbir Singh, AIR 1994 SC 1872 ........................................... ................................................................ ..................... 10 State of Punjab v. Balbir Singh, AIR 1994 SC 1872 ........................................... ............................................................... .................... 12 State of Rajasthan v. Ram Chandra, AIR 2005 SC 2221......................................... 2221........................................................... .................. 8 State of Rajasthan v Ram Chandra, AIR 2005 SC 2221...................................... 2221.......................................................... .................... 15 State of Rajasthan v Ram Chandra, AIR 2005 SC 2221...................................... 2221.......................................................... .................... 14 State of Rajasthan v Ram Chandra, AIR 2005 SC 2221...................................... 2221.......................................................... .................... 12 State of Rajasthan v. Rehman, AIR 1960 SC 210. ......................................... ............................................................... ........................... ..... 9 State of Rajasthan v. Jainudeen Shekh and Ors., AIR 2015 SC 3469. ...................................... ...................................... 3 State of Rajasthan Rajas than v. N.K., AIR 2000 SCW 1407 ........................ .............................................. ............................................. ....................... 2 State of Uttar Pradesh v Satish, AIR 2005 SC 1000 ........................................... ................................................................ ..................... 16 State Of Gujarat v.Satish @ Kalu @ Hathoda Bhikhabhai Patel, 2006GLR1816 ................ ................ 8 Sucha Singh v. State of Punjab, AIR 2003 SC 3617. .......................... ................................................. ...................................... ............... 5 Tahir v. State, (1996) 3 SCC 338........................................... ................................................................. ............................................. ............................. ....... 5 Visveswaran v. State, (2003) 6 SCC 73............................................ .................................................................. ......................................... .................. 4 vi


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Tiruchirapalli, T.N. v. Jayapaul 2004 CriLJ 1819

………………………………………..15 ……………………………………….. 15

U.T. of Dadra and Haveli and Anr. v. Fatehsinh Mohansinh Chauhan, 2006CriLJ4636. ....... 19 Yusuf@ Asif, Balbir Singh, Harbhajan Singh and Ganesh Ram v. State Rep. by Intelligence Officer, Narcotic Control Bureau, 2006-1-LW(Crl)377 ............................................. ...................................................... ......... 20 BOOKS, ARTICLES & TREATISES



Annual Report 2013, Narcotics Control Bureau,(page no.6)........................................ no.6)............................................... ....... 9



Chapter 9, Documentation of Search, Recovery Recover y and Seizure, Drug Law Enforcement, Filed Officer’s Handbook, Narcotics Handbook, Narcotics Control Bureau, Ministry of Home Affairs, Government of India., .................................................. ........................................................................ ............................................ .................................. ............ 3



Prison Statistics India 2013, Distribution of convicts and undetrail prisoners under various IPC and SLL, National Crime Records Bureau, (March 2, 2016, 12:43 pm. ),http//: ncrb.nic.in://http ............................................ .................................................................. ............................................ ............................................. ........................... .... 9



Prison Statistics India 2014, National, Distribution of convicts and undetrail prisoners ECORDS BUREAU ............................................ under various IPC and SLL, C RIME R ECORDS ....................................................... ........... 9

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STATEMENT OF JURISDICTION

The appellants herein, Mr. Satnam Singh and Mr. Balbir Singh, convicted and sentenced by the Special Court, Patiala under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, have approached the Hon’ble High Court of Punjab & Haryana under § 374(2) of the Code of Criminal Procedure, 1973. The sentence of imprisonment for both of them is for more than seven years. § 36C of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides that save as otherwise provided in the Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bails and bonds) shall apply to the proceedings before a Special Court (constituted under § 36 of the aforementioned Act) and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session. As per § 374(2) of the Code of Criminal Procedure, 1973, any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court. And in that case, the execution of the sentence can be stayed suspended pending appeal under § 389(1) of the aforementioned Code. § 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides that the High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973, on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.

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STATEMENT OF FACTS

1. The material case arises out of a criminal appeal filed before the Hon’ble Punjab and Haryana High Court, by Mr. Satnam Singh and Mr. Balbir Singh, against the judgment and order passed by the Special Court, Patiala which convicts and sentences the aforementioned appellants under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, ‘the NDPS Act’). 2. Satnam Singh (Appellant no. 1) along with Balbir Singh (Appellant 2) was on his way to Nabha from Patiala when stopped at naka on Patiala-Nabha Road around 7:30 PM on 8 th January, 2015. Constable Dalip Singh asked Balbir Singh to come out of the car for search which he mildly resisted, still search was conducted by Narotam Singh(Constable) and a handbag was found in the boot of the car which Satnam Singh told was containing clothes. 3. Police became suspicious, hence Sardul Singh and Deena Nath were called to witness the search of Appellants which revealed two polythene bags containing Opium of about 1 Kg. Satnam Singh slipped away from the spot but Balbir Singh was detained and a recovery memo of two packets was prepared and signed by the by both Deena Nath and Sardul Singh. 4. In order to search Balbir Singh the constable duly asked him if he wanted to be searched in presence of a Gazetted Officer but he submitted himself without saying anything. On his personal search Opium of around 50gms quantity was recovered and hence the search memo was prepared and signed by independent witnesses, Sardul Singh and Deena Nath. 5. According to the registration documents taken out of Satnam Singh’s vehicle, white coloured Toyota Fortuner PB 11 XZ 2345, it revealed that it was owned by Kuldeep Kaur, mother of Satnam Singh and resident of House no. 789, Green Enclave, Patiala.

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6. The quantity of all the contraband received weighed 1050 gms; 900 gms(Handbag) and 80 gms.(Wrapper recovered from Balbir Singh) and FIR No. 1234 was recorded at Central Police Station Patiala u/s. 8 (c) read with Ss. 18 (c), 25 and 29 of the NDPS, 1985 against Satnam Singh, Balbir Singh and Kuldeep Kaur, on 9th January 2015 at 10:00 am. Further three sealed samples from each packet were sent to Forensic Science Lab (hereinafter, ‘FSL’)Chandigarh ‘FSL’)Chandigarh on 26th January 2015. 7. Investigation Report revealed that Satnam Singh was out to Rajasthan with his family and returned on 7th January 2015. Satnam had no job or employment but had a comfortable and luxurious life. He visited Balbir Singh on the afternoon of 8 th January 2015 and Balbir Singh accompanied him and agreed to sell off the consignment which Satnam Singh bought from Rajasthan. Satnam Singh also delivered a sample of opium to Balbir Singh while returning from Nabha. 8. The police report also revealed that Balbir Singh had earlier been convicted for selling opium in 2005, for which a copy of this judgment was submitted in the court. The police filed challan against Satnam Singh, Balbir Singh and Kuldeep Kaur on 5 th March, 2015. The trial court framed charges against all the three under § 8(c) read with §s 18(b), 25 and 29 of the NDPS Act. All the accused did not plead guilty and faced trial. 9. The trial court convicted Satnam Singh and Balbir Singh u/§ 8(c) read with § 18(c) of the NDPS Act. Satnam Singh was sentenced with rigorous imprisonment of 10 years and a fine of Rs. One lakh, and in the case of default of payment of fine, a further rigorous imprisonment of 6 months. Balbir Singh owing to the previous conviction was sentenced with rigorous imprisonment of 15 years and a fine of Rs. One lakh fifty, and in the case cas e of default of payment of fine, a further rigorous imprisonment for one year.

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ISSUES RAISED

WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED SPECIAL COURT HAS ERRED IN CONVICTING AND SENTENCING THE APPELLANTS UNDER THE PROVISIONS OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.

A.

THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THE APPELLANTS IN THE TRIAL COURT.

B.

THE SENTENCE AWARDED TO BALBIR SINGH IS NOT ERRONEOUS IN LAW.

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SUMMARY OF PLEADINGS A: THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THE APPELLANTS IN THE TRIAL COURT

The Trial Court has rightly appreciated the facts of the case as the hypothesis put forward by the prosecution in the Trial Court was the most possible. The search and seizure conducted was in total compliance of the provisions of the Code of Criminal Procedure, 1973 and the Narcotic Drugs and Psychotropic Substances Act, 1985, and was done in the presence of independent and official witnesses. The report of the Forensic Science Lab proved that the substance seized from the appellants was opium. The fact of physical as well as conscious possession was proved in the trial Court which put the burden to prove innocence on the appellants. They could not discharge the burden, which was enough to warrant conviction. B: THE SENTENCE AWARDED TO BALBIR SINGH IS ERRONEOUS IN LAW

Balbir Singh, one of the appellants has been awarded enhanced punishment for previously being convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 and the judgment of the previous conviction, which was presented to the Trial Court was only not marked. Unmarking of the document is only an oversight in the management of the prosecution and not a lacuna in the case of the prosecution. The veracity of the document cannot be questioned on this basis. The police report that stated the factum of previous conviction has to be trusted and the circumstances have to be considered in totality, which warrant enhanced punishment, as per the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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WRITTEN PLEADINGS

It is humbly submitted, that, ON THE FACTS AND CIRCUMSTANCES CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED SPECIAL COURT HAS NOT ERRED IN CONVICTING AND SENTENCING THE APPELLANTS UNDER THE PROVISIONS OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 A. THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THE APPELLANTS IN THE TRIAL COURT A.I THE TRIAL COURT HAS RIGHTLY APPRECIATED THE FACTS OF THE CASE A.I .1 The hypothes hypothesis is put for ward by the pr pr ose osecuti on i n th e tr ial cour t was the most most plausible 1.

th

On 8 January, at about 7:30 pm in the evening, two polythene packets containing

opium like substance were recovered at the police Naka from the hand bag lying in the boot of a vehicle which was being driven by Satnam Singh. 1 He was accompanied by Balbir Singh, whose personal search yielded a piece of polythene containing opium like substance. 2 2.

After returning to Patiala from Rajasthan on the evening of 7 th January, 2015, Satnam

Singh had gone to Nabha to visit the house of Balbir Singh in the afternoon on 8 th January, 2015 in his mother’s vehicle. 3.

Balbir Singh, who had earlier been convicted for selling opium in 2005, had agreed to

sell off the consignment of opium brought from Rajasthan by Satnam Singh. During the return journey to Patiala from Nabha, Satnam Singh delivered a sample of the opium to Balbir Singh. 1

Moot Proposition, ¶4. Id.

2

1 ESPONDENT MEMORIAL ON BEHALF OF R ESPONDENT

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Report of the FSL, which was tendered as evidence in the trial court, confirmed that

the substance in all the three samples was opium.3 Prosecution also submitted the copy of the judgment of the Court regarding re garding previous conviction of Balbir Singh in 2005. Three official witnesses and one independent witness testified to the fact that the contraband was elicited from the possession of the appellants. The trial court took the consistent testimonies and the evidence tendered into account and convicted and sentenced the appellants. 5.

In a criminal appeal, the Court has to consider the evidence on record and the

conclusion of the trial court. It is not for the court to go into facts or alter the facts. The court can revaluate the evidence but he findings of the court with respect to the facts are not to be set aside.4 The Prosecution at the trial stage have most cogently prove the factum probandum, probandum,5 i.e., whether the appellants were in conscious possession of the opium like substance and whether it was opium or not. A .I .2 No evidence evidence has bee been tendered to pr ove f als al se i mpl i cation 6.

Whoever pleads in a criminal case that he has been falsely implicated, the foundation

of it must be proved by the said accused who is alleging so. 6 The appellants have alleged that Sub-Inspector Hakam Singh, who headed the police team at Naka duty, was out to favour Shamsher Singh, with whom Satnam Singh had a dispute, but have not tendered any evidence to prove their allegation. Similarly, the allegation against Deena Nath of being a stooge of the police has not been substantiated. 7.

Moreover, the fact that Balbir Singh, a repeat offender who had no enmity

whatsoever with Shamsher Singh, has also been convicted does not fit into the factual matrix presented by the appellants. On mere speculations and conjectures, the claim of false

3

Moot Proposition, ¶9. State of Rajasthan v. N.K., AIR 2000 SCW 1407. 5 The fact in issue. 6 Nabarun v. State of West Bengal, 2016 Cri LJ 49. 4

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implication cannot stand, and some material or evidence has to be brought in to show that the prosecution has deliberately roped in the accused persons. pers ons.7 The statement made under § 313 of the Code of Criminal Procedure, 1973 is not administered on oath and hence, cannot be treated as evidence.8 A .I .3 The Th er e are ar e no wedges wedges i n th e case case of tthe he prosecuti prosecuti on 8.

After the recovery of two packets of polythene containing opium like substance from

the hand bag lying in the boot of the vehicle of Satnam Singh, a mahazar 9 was drawn which was signed by the independent witnesses. A mahazar was also prepared and signed by the independent witnesses and also by Sub-Inspector Hakam Singh and Head Constable Narotam Singh with respect to recovery of the contraband from the person of Balbir Singh. 9.

The mahazar shows whether the empowered officer, while branding some persons as

violators of law, has himself followed rules and complied with the legal procedures or not. 10 it forms the bulwark of the case of the prosecution in the court. Since a mazahar was drawn in both the instances of seizure, it is evident that no foul play happened and the police carried out the process diligently. 10.

The fact that Constable Pritam Singh and Constable Dalip Singh, who were present at

the Naka duty on the evening of 8 th January, 2015 were not examined by the prosecution does not make the the case of the prosecution weak. The Hon’ble Supreme Court has held that mere non-examination of investigating officer or a police officer does not in every case cause prejudice to the accused or affects af fects the credibility of the prosecution case. Whether or not any prejudice has been caused is a question of fact to be determined in each case.11

7

State of Rajasthan v. Jainudeen Shekh and Ors., AIR 2015 SC 3469. Dehal Singh v. State of Himachal Pradesh, AIR 2010 SC 3594. 9 Recovery memo. 10 Chapter Chapter 9, Documentation of Search, Recovery and Seizure, Drug Law Enforcement, Filed Officer’s Handbook, NARCOTICS CONTROL BUREAU, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF I NDIA., (Page 53) 8

11

Baldev Singh v. State of Haryana, 2016 CriLJ 154 ¶18.

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In the present case, the search was conducted by Head Constable Narotam Singh in

the presence of Sub-Inspector Hakam Singh, both of whom were examined as prosecution witnesses. The Investigation Officer Hoshiar Singh was also examined. Therefore, nonexamination of the two constables who did not play any active role in the search and seizure has not caused any noticeable prejudice to the accus ed. T O DISCHARGE THE BURDEN UNDER § 35 AND § 54 OF A.II THE APPELLANTS HAVE FAILED TO THE NDPS

ACT

A .I I .1 The Th e appel appel l ants have bee been i dent dentii f i ed by the th e wi tn esses 12.

Identification test does not constitute substantive evidence,12 and failure to hold a test

identification parade would not make inadmissible he evidence of identification in court. 13 The commission of a crime can also be proved by circumstantial evidence. 14 13.

In a case resting on circumstantial evidence, the circumstances put forward must be

satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. 15 The undisputed fact in this case is that Satnam Singh and Balbir Singh were present at the police Naka on the fateful night of 8 th January and all the evidence on record and testimonies of the witnesses clearly establish that on the evening of 8 th January, the appellants were the persons at police Naka in possession of opium. The evidence of the official witnesses cannot be doubted unless suffers from any infirmity 16, and in this case, all the official witnesses, in a consistent manner and along with one independent witness, have identified the appellants in the trial court. A.I I .2 Testim Testim ony of off ici al wi tness tnesses cannot be discarde discarded d

12

Matru v. State of U.P., (1971) 2 SCC 75. Malkhan Singh and Ors. v. State of M.P., (2003) 5 SCC 746. 14 Visveswaran v. State, (2003) 6 SCC 73. 15 Bakhshish Singh v. State of Punjab, AIR 1971 SC 2016 . 16 State of Punjab v. Leela, (2009) 12 SCC 300 . 13

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Corroboration of evidence with mathematical niceties cannot be expected in criminal

cases.17 For proving the prosecution case, quality and not quantity of evidence is essential. 18 Three official witnesses, along with one independent witness, have supported the version of the prosecution in the trial court. One of the independent witnesses turned hostile but even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is duty of the Court to separate grain from the chaff, 19 which was done by the trial Court. 15.

There are cases in which independent witnesses may not come forward. 20 The court

cannot start with the presumption that police records are untrustworthy and that official acts of the police have been regularly performed is a wise principle of presumption recognized even by the legislature.21 The presumption that every person acts honestly applies as much in favour of a police official as any other person. 22 Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.23 A .I I .3 Physical and Consc C onscii ous poss possessi on h as bee been establ establii shed 16.

Opium was found in the hand bag lying in the boot of the vehicle that Satnam Singh

was driving. Opium was also found in the pocket of trouser of Balbir Singh. As was observed in the case of Baldev Singh v. State of Haryana 24, ‘the appellant being the driver of the

17

Leela Ram v. State of Haryana and Anr., AIR 1999 SC 3717. Ram Swaroop v. State of Delhi, AIR 2013 SC 2068. 19 Sucha Singh v. State of Punjab, AIR 2003 SC 3617. 20 Ramjee Rai and Ors. v. State of Bihar, (2006) 13 SCC 229. 21 State of Delhi v. Sunil and Anr., (2001) 1 SCC 652. 22 Girja Prasad(dead) by L.Rs. v. State of M.P., AIR 2007 SCW 5589. 23 Tahir v. State, (1996) 3 SCC 338. 24 Baldev Singh v. State of Haryana, 2016 CriLJ 154. 18

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vehicle by all probabilities must have been aware of the contents of the bag lying in the boot of the vehicle. Once the physical possession of the contraband by the accused has been proved, § 35 of the NDPS Act comes into play and the burden shifts shift s on the appellant/accused to prove that he was mot in conscious possession of the contraband .’ contraband .’ 17.

§ 1825 of the NDPS Act refers to the concept of conscious possession. 26 The word

conscious means awareness about a particular fact.27 Whether there was conscious possession has to be determined with reference to the t he factual backdrop.28 18.

Satnam Singh resisted coming out of his vehicle when he was first stopped by Dalip

Singh.29 He also lied about the contents of the hand bag which was found in the boot of the vehicle, claiming that it contained nothing else but clothes, and asked the police party to let him go as he was getting late. 30 Moreover, he slipped away from the spot after two polythene packets of opium were recovered from the t he hand bag. 31 It all indicates that Satnam Singh was aware about the contents of the bag and therefore, there i s conscious possession on his part. 19.

Under narcotic drug laws, the term ‘possess’ means actual control, care and

management of the drug. 32 Evidence on record establishes it beyond all doubts that one packet of opium was found in the trouser pocket of Balbir Singh, which evidently entails control and care. Similarly, presumption under § 54 33 would operate against the appellants as

25

§18(c), the NDPS Act reads as- Punishment for contravention in relation to opium poppy and opiumWhoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable, in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to two lakh rupees. 26 Mohan Lal v. State of Rajasthan, AIR 2015 SC 2098. 27 Madan Lal and Anr. v. State of Himachal Pradesh, AIR 20 03 SC 3642. 28 Id. 29 Moot Proposition, ¶2, the case of the prosecution. 30 Moot Proposition, ¶3. 31 Moot Proposition, ¶4. 32 Black’s law dictionary. 33 § 54(a) of the NDPS Act reads as- Presumption form possession of illicit articles- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance.

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the element of possession of the contraband, which is essential so as to shift the burden on the accused,34 has been duly proved. A.I I .4 Bu r den den th us cas castt has not bee been di schar ged ged 20.

As was enunciated by the Hon’ble Supreme Court in a celebrated case, 35 ‘The burden

of proof cast on the accused under Section 35 can be discharged through different modes . One is that he can rely on the materials available in the prosecution evidence. In addition to that, he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the Appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. ’ 21.

The appellants have tendered in no evidence so as to prove that there was no

possession on their part. The evidence tendered by the prosecution p rosecution is cogent enough to prove knowledge on part of the appellants. Testimony of the four witnesses is consistent, and their cross-examination has not brought to fore any doubt as to possession. One of the independent witnesses turned hostile but it is well settled that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over board as unreliable. 36 Phenomenon of panch witnesses turning hostile is not new and if found true and dependable, the testimony of a police officer cannot be discarded on the ground that

34

Noor Aga v. State of Punjab and Anr., (2008) 16 SCC 417. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, AIR 2000 SC 821, ¶22. 36 State Of Gujarat v.Satish @ Kalu @ Hathoda Bhikhabhai Patel, 2006GLR1816. 35

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he is a police officer.37 Thus, the appellants have been unable to discharge the burden cast on them under § 35 and § 54 of the NDPS Act. A.III NON-COMPLIANCE OF MANDATORY PROVISIONS OF THE NDPS ACT HAS NOT TAKEN PLACE 22.

§s. 41, 42, 52, 55 and 57 of the NDPS Act are mandatory in nature but their non-

compliance, violation or breach thereof are not sufficient to vitiate the trial unless, on the circumstances of the particular case, it is found that the non-observance of the safeguards to such extent has resulted in prejudice to the accused or in failure of justice. 38 23.

There is no noticeable fact or evidence that proves that there has been non-compliance

on the part of the police or the prosecution, which seems to have prejudiced the accused. The question of prejudice or bias has to be established and not inferred and there cannot be any legal presumption in this regard. 39 24.

After the search and seizure, the two packets recovered from the handbag weighed

1050 grams and 900 grams and wrapper recovered on personal search weighed 80 grams. 40 The police report, after taking into account the FSL report of the samples seized, stated that 1950 grams of opium was recovered from the vehicle and 80 grams of opium was recovered during the personal search of Balbir Singh. There was no apparent change in weight, no discrepancy and it can logically be inferred that the samples were kept in safe custody and were not tampered with. Therefore, no violation of § 55 41 of the NDPS Act has taken place.

37

Id. State of Punjab v. Kulwant Singh 1995CriLJ744 ¶38. 39 State of Rajasthan v. Ram Chandra, AIR 2005 SC 2221, ¶24. 40 Moot Proposition, ¶6. 41 § 55 of the NDPS Act reads as- Police to take charge of articles seized and delivered- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. 38

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After the personal search of Balbir Singh, a search memo was prepared before taking

him in custody. 42 The entire matter was reported to Station House Officer of the Central Police Station Patiala, Inspector Joginder Singh 43 and an FIR was duly fired against the appellants and Kuldeep Kaur on the next day. 44 Therefore, no violation of § 52 (1) 45 or § 5746 of the NDPS Act has taken place. A.IV THE SEARCH AND SEIZURE BY THE POLICE STANDS THE SCRUTINY OF LAW A.I V.1 Th er e has bee been a compli ance of § 165 of th e Code Code of of Cr i mi nal Pr ocedur ocedur e, 1973 1973 26.

§ 165 of the Code of Criminal Procedure, 1973 (hereinafter, ‘Cr.PC’) permits ‘Cr.PC’) permits a search

for anything necessary for the purposes of an investigation into any offence. 47 A.IV.1.1 There were reasonable grounds grounds for search under Cr.PC as well as the NDPS NDPS Act 27.

§ 165 while prescribing conditions 48 uses the words ‘...has ‘...has reasonable grounds for

believing ’. ’. 28.

In 2013, 41% of all opium seizures in India took place in Punjab. 49 Punjab also

accounted for a third of all undertrials and convictions under the NDPS Act in 2013. 50 The police team at Naka was aware that transportation of contraband is not an uncommon event in Punjab. Moreover, Satnam Singh resisted the search of his vehicle and when a hand bag was found in the boot of his vehicle, he said that it contained only clothes a nd exhibited an urge.

42 Moot Proposition, ¶4. 43 Moot Proposition, ¶6 44 Moot Proposition, ¶7. 45 § 52(1) of the NDPS Act reads as- Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may b e, inform him of the grounds for such arrest. 46 § 57 of the NDPS Act reads as- Report of Arrest and Seizure- Whenever any person amkes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or s eizure to his immediate official superior. 47 Emperor v. Param Sukh, AIR 1926 All 147. 48 State of Rajasthan v. Rehman, AIR 1960 SC 210. 49 Annual Report 2013, 2013 , NARCOTICS CONTROL BUREAU,(page no.6). 50 Prison Statistics India 2013, Distribution of convicts and undetrail prisoners under various IPC and SLL, SLL , NATIONAL CRIME R ECORDS ECORDS BUREAU, (March 2, 2016, 12:43 pm. ),http//: ncrb.nic.in://http

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All this gave reasonable ground to the Police to believe that he was hiding something

incriminating, and a basis to search the car and the hand bag under § 165 of the Cr.PC as well as § 4951 of the NDPS Act. A.IV.1.2 Recording the grounds for believing was not not mandatory in the present case 30.

A question was raised in State of Punjab v Balbir Singh 52 that when an empowered

officer acting under § 41 and § 42 of the NDPS Act, carries out a search under §165 without recording the grounds of his belief as provided under §165, whether such failure also would vitiate the trial, particularly in view of the fact that such a search is connected with offences under the NDPS Act. It was held by the court that §165 in the context has to be read along with § 42(1) and § 41(2) where under he is not required to record his reasons. 31.

§ 41, § 42 and § 43 do not mandate to record reasons while making a search. In this

case, the police was empowered u/§ 43 to search and seize, and therefore, it was not mandatory to record reasons. A.IV.1.3 Presence of police officer implies search in person 32.

§ 165 means that the officer should be present at the spot and exercise a general

supervision over the search. It does not lay down that the investigation officer personally conducting a search must himself make the search. 53 Therefore, the fact that search was made by Narotam Singh and not not Hakam Singh does not not go against § 165. A.IV.1.4 Even if there is an illegality, trial would not not be vitiated

51

§ 49 of the NDPS Act reads as- Power to stop and search conveyance- Any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, use for the transport of any narcotic drug or psychotropic substance or controlled substance, in respect of which he suspects that any provision of this Ac has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and- (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon. 52 State of Punjab v Balbir Singh, AIR 1994 SC 1872 ¶23. 53 Shiam Lal v. King/Emperor, AIR 1927 All 516.

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Arguendo Arguendo there was an omission to record reasons for suspecting the presence of

contraband; it would only be an irregularity and not vitiate the trial. 54 If it is found that the evidence of recovery of articles in the search conducted under § 165 is reliable, the fact that the search was illegal would not vitiate the trial or prevent the conviction being made. 55 34.

Even if there is a sort of procedural illegality in conducting the search and seizure, the

evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice has been caused to the accused.56 In the present case, no serious prejudice was caused as contraband was actually obtained from the appellants and this seizure was confirmed by the witnesses. A .I V.2 T he poli ce was empowered empowered u/§ 43 to sear sear ch an d seiz seize e 35.

§43 of the NDPS Act provides that any officer of any of the departments mentioned in

§42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed.57 He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. 58 A.IV.2.1 The search was effectively conducted by the empowered empowered officer 36.

The search of the vehicle, hand bag and personal search of Balbir Singh was

conducted by Head Constable Narotam Singh in the presence of Sub Inspector Hakam Singh. To make search under §s. 42, 43 or 49, or to search a person under §s. 41, 42 or 43, the officer has to be an empowered officer under § 42. 59 However, the Hon’ble Supreme Court has held that the officer exercising power under §s 42 and 43 can take assistance of others for

54

Rambharose v. Rammanlal, AIR 1932 Oudh 249(2). Pyli Yacoob v. State, AIR 1953 TC 466. 56 Khet Singh v. Union of India, AIR 2002 SC 1450 . 57 State of Haryana v Jarnail Singh and Ors, 2004 CriLJ 2541 ¶8. 58 Id. 59 State of Punjab v. Balbir Singh, AIR 1994 SC 1872 ¶6. 55

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the purpose of carrying out the prescribed acts. 60 Sub Inspector Hakam Singh is empowered under §42 to make search under the provisions of NDPS Act, and he only took the assistance of his subordinate officer, Head Constable Narotam Singh. The entire operation was conducted under his supervision and the search, therefore, was conducted by him. A.IV.2.2 §42 has has no application in this case 37.

§s. 42 and 43, contemplate two different situations as §42 contemplates entry into and

search of any building, conveyance or enclosed place, while §43 contemplates a seizure made in any public place or in transit. 61 38.

In Babubhai In Babubhai Odhavji Patel, etc v. State of Gujrat 62, the members of the patrol team

were doing the usual patrol duty and they incidentally came across the tanker lorry and on search recovered the contraband substance from the vehicle. It was held that, if it is a chance recovery, the procedure contemplated under §42 cannot be complied with. 63 39.

In Ramadhan In Ramadhan v State of Rajasthan 64, it was held that as recovery was made in a public

place, when the appellant was carrying the narcotic drug by b y concealing it in the motorcycle upon which he was riding, § 42 is not applicable. In a case where the police officer on patrol duty stops the vehicle in transit in a public place and conducts search and seizure, §42 has no application.65 40.

Furthermore, whether there is adequate compliance of §42 or not is a question of fact

to be decided in each case. 66 Arguendo, Arguendo, the power was derived from the §42 of the, delayed compliance with satisfactory explanation will be acceptable compliance of § 42. 67 The matter of search and seizure, in this case, was reported to the Station House Officer of the Central 60

State of Rajasthan v Ram Chandra, AIR 2005 SC 2221 ¶20. Jagiro v State, CRL. A.1021 of 2013 ¶9. 62 Babubhai Odhavji Patel, etc v State of Gujrat, AIR 2006 SC 102. 63 Id. at Id. at ¶4. 64 Ramadhan v State of Rajasthan, 2012 (1) RCR RCR (Criminal) 790 ¶6. 65 State, NCT of Delhi v Malvinder Singh, AIR 1995 SC 1157 ¶2. 66 Bahadur Singh v State of Hayana, (2010) 4 SCC 445 ¶13. 67 Karnail Singh v. State of Haryana, 2009 CriLJ 4299. 61

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Police Station,68 which shows that there was an acceptable compliance by the raiding party even of § 42. A.IV.2.3 The seizure was conducted conducted in public case and in transit 41.

In the case of State of Delhi v Malvinder Singh 69 the police officer on patrol duty

stopped the vehicle in transit in a public place and conducts search and seizure. The Court held that §43 was to be applied to the case and not §42. It was stated that there is no dispute that the tanker was moving on the public highway when it was stopped and searched therefore §43 would clearly apply to the facts of this case. 70 The same observation would accurately apply in the situation at hand, where seizure happened in a public place, i.e., the Patiala-Nabha road. 42.

In the case of Durgo Bai v State of Punjab 71, it was held that §42 wouldn’t apply to

because the seizure of contraband took place by making nakabandi, so it was not a case of entering into or searching any building, conveyance or enclosed place. Satnam Singh’s vehicle was also searched at police Naka and seizure of opium was made from the hand bag lying in the vehicle. Thus, §43 aptly applies in the present case. 43.

The expression 'transit' in §43 of the Act is applicable to the expression 'conveyance'

used in §42 of the Act as well. 72 §s. 43 of the NDPS Act therefore, in respect of conveyance, create an exception to carry out the search and seizure operations in respect of a vehicle in motion.73 In this case, the Toyota Fortuner was a moving vehicle which was stopped and searched and then seizure was made from it. A.IV.2.4 Question of non-compliance non-compliance of §42 does does not arise

68

Moot Proposition, ¶6. State, NCT of Delhi v Malvinder Singh, 2008 (1) ALT (Cri) 382 ¶7. 70 State, NCT of Delhi v Malvinder Singh, 2008 (1) ALT (Cri) 382. 71 Durgo Bai and Anr. v State of Punjab, AIR 2004 SC 4170 ¶7. 72 Ankit Kumar v. State of Punjab, CRL. A. 1097/2009 . 73 Jagiro v State, CRL. A.1021 of 2013 ¶10. 69

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A bare reading of §42 of the Act shows that the requirement to take down the secret

information in writing and sending to superior officers prior to search is in respect of recoveries made from a private place such as building, conveyance or enclosed place but, there is no requirement to record such information in writing in respect of search and arrest in a public place or in transit, or under §43. 74 A.I V.3 Th er e has bee been a compli ance of § 100 of th e Cr.PC and § 50 of th e NDPS Act 45.

Whether the requirements of §50 have been met is a question which is to be decided

on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula.75 A.IV.3.1 There has been a substantive substantive compliance of § 50 46.

In the case of Joseph Fernandez v State of Goa76 the searching officer said to the the

accused –‘if you wish you may be searched in the presence of Gazetted Officer or Magistrate’. This according to the court is in substantial compliance with the requirement of §50 and the court rejected the contention that there was non-compliance with the mandatory provision contained in §50 of the Act. 77 Personal search of Balbir Singh was made by Head Constable Narotam Singh after asking Balbir Singh –‘Do you agree to be searched here otherwise we will take you to the Gazetted Officer or the Magistrate?’ 78 This, therefore, was in substantive compliance of §50. 47.

What the officer concerned is required to do is to convey about the choice the accused

has. There is no specific form prescribed or intended for conveying the information required to be given under §50, the Court has to see the substance and not the form of intimation. 79 A.IV.3.2 No prejudice has been caused to the accused 74

Id. State of Rajasthan v Ram Chandra, AIR 2005 SC 2221 ¶10. 76 Joseph Fernandez v State of Goa, AIR 2000 SC 3502 ¶3. 77 Id. 78 Factsheet ¶4. 79 Krishan Kanwar (Smt.) Alias Thakuraeen v. State of Rajasthan 2004 (2) SCC 608. 75

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It has to be pointed out to the Court that investigation has caused any an y prejudice or bias

against the accused,80 and the question of prejudice or bias has to be established and not inferred.81 49.

Nothing in this regard r egard was specifically specifi cally pointed out by the appellants in i n the trial tri al Court

and the personal search was conducted in the presence of witnesses. A.IV.3.3 Requirement under under § 100 of the Cr.PC has been fulfilled 50.

§ 50(5) 82 of the Act provides that the officer should search the person as provided

under §100 of the Code. There is requirement under §100 83 to call for two respectable and independent witness, to witness the search and obtain their signatures. This was fulfilled by the officers making the search as Sardul Singh, who was in his car at the Naka and Deena Nath, who was called on phone from from a nearby village, were joined as independent witnesses. 51.

Just because a person happened to witness other instances that would denude him of

his independent character.84 That Deena Nath is a gambler and a police stooge, has only been alleged by the appellants and no evidence has been tendered in this regard. Independence of Deena Nath cannot be questioned on the ground that he had been witness of police in many other cases. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human 80

Tiruchirapalli, T.N. v. Jayapaul 2004 CriLJ 1819. State of Rajasthan v Ram Chandra, AIR 2005 SC 2221 ¶24. 82 § 50(5) of the NDPS Act reads as- When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person parting with possession pos session of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 83 § 100(4) of the Cr.PC reads as- 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 or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. 84 Joseph Fernandez v State of Goa AIR2000SC3502¶4. 81

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probability the act must have been done by the accused; the t he evidence must make conviction of the accused sustainable.85 The evidence on record in the case at hand hand was cogent enough to warrant a conviction for the appellants in the trial court. In light of the contentions made above, it is most humbly pleaded that the prosecution has proved the offences against the appellants in the trial court. B. THE SENTENCING SENTENCING OF BALBIR SINGH SINGH IS NOT ERRONEOUS IN LAW. B.I THE VERACITY OF THE DOCUMENT DOES NOT DEPEND ON ITS MARKING B.I.1 THE MARKING OF EVIDENCE HAS NO RELATION WHATSOEVER WITH THE PROOF OF THE DOCUMENT 52.

In the present case the appellant Balbir Singh was previously convicted for the

offence of selling opium in year 2005 and was duly punished by the court for 5 years of Rigorous Imprisonment. 86 The evidence of the previous conviction was not marked by the court87 but it cannot be misconstrued from this proposition that the evidence which is not marked is not proved. 88Any evidence which is marked cannot automatically be termed to be proved. It has been held by the Apex court that mere admission of a document in evidence does not amount to its proof and similarly, mere marking of exhibit on a document dispense with its proof, which is otherwise required to be done in accordance with law. 89 53.

For the purpose of formal proof of any evidence, it was held by the Hon’ble Bombay

High Court, that a document is required to be proved in accordance with the provisions of the Evidence Act. Merely for administrative convenience of locating or identifying the

85

State of Uttar Pradesh v Satish, AIR 2005 SC 1000. Moot Proposition, ¶7. 87 Moot Proposition, ¶9. 88 Sait Tarajee Khimchand And Ors. v.Yelamarti Satyam alias Satteyya and Ors, AIR 1971 SC 1865. 89 Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758. 86

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document, it is given an exhibit number by the Court. If a document is duly proved, but mistakenly or otherwise is not exhibited, still it can be read in evidence. 90 B.I.2 QUESTION AS TO VERACITY WAS NOT CONTESTED IN THE TRIAL COURT 54.

The appellant did not contest the veracity of the evidence at the time of trial and thus,

have, omitted to raise any objection at the trial stage. It implies that they did not contend the unmarked evidence. In another case where the prosecution omitted to raise any objections, it was held that ‘the ‘the omission to make such objection is fatal because by its failure, the party entitled to object allows the opposite party to presume that it ’s ’s not serious about the mode of proof .’91 B.II UNMARKED EVIDENCE IS JUST A PROCEDURAL FLAW AND NOT A LACUNAE IN THE PROSECUTION CASE.

B.I I .1 Discrepa Discrepancy ncy is not contr contr adiction 55.

Unmarked evidence in the present case is not a contradiction but rather a minute

discrepancy. It was observed in State of Himachal Pradesh v. Lekh Raj 92, ‘Discrepancy ‘Discrepancy has to be distinguished from contradiction. Minor discrepancy or variance in evidence will not make the prosecution’s case doubtful.’ The T he unmarked evidence, in this case, is not inadmissible, as merely not marking the evidence could not disprove it. But the courts can on their own take such evidences and proceed, in the interest of justice, if they find that there is only a procedural flaw. When the discrepancy is comparatively of a minor charac ter and does not go to the root of the prosecution story, it need not be given undue importance. 93 B.I I .2 Totali ty of th e cir cir cumstance cumstances s must be considered considered

90

Bama Kathari Patil v. Rohidas Arjun Madhavi, [2004 (2) Mh.L.J.752]. R.V.E. Venkatachala v. Arulmigu Viswesaraswam, (2003) 8 SCC 752. 92 State of Himachal Pradesh v. Lekh Raj, 1999 4 Crimes 337 (SC). 93 Jagdish v. State of Madhya Pradesh, 1981 SCC 676. 91

17


5 56.

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It was held in the judgment of the Apex court that the lacuna in the prosecution must

be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. 94 This Hon’ble Court, in a judgment, laid much stress on keeping in view the totality of the circumstances while passing the order of sentence.95 57.

This oversight, therefore, of not considering the evidence of previous conviction

should not allow the guilty to go scot free as in totality, he has been found guilty and the fact of previous conviction has been duly dul y proved in the court. B.I I .3 Th e discr discr epancy of not mar ki ng the judgment judgment can be r ectif ied 58.

It is submitted that no party in a trial can before-closed from correcting errors. If

proper evidence was not adduced or a relevant material mat erial was not brought on record r ecord due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 96 59.

The marked copy of the judgment of the Court regarding previous conviction was

submitted in the trial Court but it was only not marked and if this Hon’ble Court so requires, a copy of that evidence marked as an exhibited can be submitted in this Court forthwith. The Cr.PC puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it i t may reach its own conclusion, both on questions of fact and of law.97 60.

After all, function of the criminal Court is administration of criminal justice and not to

count errors committed by the parties or to find out and declare who among the parties

94

Rajendra Prasad v. The Narcotic Cell Through Its Officer in Charge, Delhi A IR 1999 SC 2292. Pritam Singh v. State Of Punjab, 2007 (4) RCR (Criminal) 712. 96 Rajendra Prasad v. The Narcotic Cell Through its Officer i n Charge, Delhi AIR 1999 SC 2292, ¶9. 97 Chandrappa and Ors. v State of Karnataka, (2007) 4 SCC 415. 95

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performed better.98 The jurisdiction of the Court must obviously be dictated by exigency of the situation.99 B.I I .4 Non-f rami ng of charge does does not vitiate tri al 61.

Though the charges in relation to the previous conviction were not framed, the trial

cannot be vitiated solely on this reason. It has been stated by the Apex Court that in all cases, non-framing of a charge or some defect in drafting of the charge per se would not vitiate the trial itself.100 An oversight in the management of the prosecution cannot be treated as an irreparable lacuna,101 and this principle clearly applies in this case. B.III THE SENTENCE AWARDER TO BALBIR SINGH IS IN ACCORDANCE WITH THE PROVISIONS OF THE NDPS ACT.

B.I I I .1 Sentencin Sentencin g is a matter matter of penol penol ogy 62.

It has already been proved in the trial Court that there was conscious possession of the

opium on the part of Balbir Singh. Balbir Singh was previously convicted under the NDPS Act, which was revealed in the police report. 102 A copy of the said judgment was produced in the court.103 Hence the Appellant was liable to enhanced punishment u/§ 31. 63.

When the previous conviction is taken into consideration it is for the imposing of the

sentence and not conviction. Imposing of a sentence is a matter of discretion, it is i s not a matter of proof. That is, it is a matter within the sphere not of evidence but of penology. 104 A mere procedural flow cannot prevent the Court Court from using discretion. B.I I I .2 Poli Poli ce Re Report port h as to be tr usted usted

98

Rajendra Prasad v. The Narcotic Cell Through its Officer i n Charge, Delhi AIR 1999 SC 2292, ¶9. Mohanlal Shamji Sani v. Union of India, (AIR 1991) SC 1346. 100 Shivaji Sahebrao Bobade &Anrs. v. State of Maharashtra, 1974 SCR (1) 489. 101 U.T. of Dadra and Haveli and Anr. v. Fatehsinh Mohansi nh Chauhan, 2006 CriLJ 4636. 102 Moot Proposition, ¶7. 103 Moot Proposition, ¶9. 104 R v. Ismail, 39 B 326: 16 BOM LR 934.

99

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The previous conviction was first revealed in the police report 105 but still the veracity

of the previous conviction is being contested. The notion prevails that a police officer should be approached with initial distrust.106 This persisted during post-Independence era but it has been held in the judgement of the Apex Court that it is time now to start placing at least initial trust on the actions and documents made by the police. 107 65.

At any rate the court cannot start with the presumption that to police records are

untrustworthy. As a preposition of law, the presumption should be the other way around. 108 Therefore, this Hon’ble Court must place reliance on the findings of the Investigation Officer Hoshiar Singh, against whom no allegations have been made by the appellants and uphold the order of enhanced punishment passed by the Trial Court. B.I I I .3 Pur Pur pose pose of the ND PS Act has to be kept kept in min d 66.

In recent years India has been facing problem of drug abuse and transit traffic in illicit

drug. To curb the cancerous growth growth of such use and its evil effects on the society, the the NDPS Act was enacted and therefore, it provides for deterrent punishment for drug trafficking offences.109 Since Balbir Singh has been convicted under the provisions of the NDPS Act twice, he is liable for enhanced punishment and an sort of leniency on the part if this Hon’ble High Court will send a wrong message to the society. It is the duty of the Court to get at the real intention of the legislature110 and by respecting the reason and spirit of the law, the order of the Learned Trial Court must be upheld.

105

Moot Proposition ¶7. Yusuf@ Asif, Balbir Singh, Harbhajan Singh and Ganesh Ram v. State Rep. by Intelligence Officer, Narcotic Control Bureau, 2006-1-LW (Crl)377. 107 State Government of NCT of Delhi v. Sunil and Anr., AIR 200 0 SCW 4398. 108 Id. 109 Rashid Khan And Others v. The State, 1993 CriLJ 3776. 110 In Re: Presidential Poll v. Unknown, (1974) 2 SCC 33. 106

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly requested that this Hon’ble Court may be pleased to adjudge and declare:



That the present appeal is without merit and therefore, dismiss it and uphold the

judgment and order passed by the Special Court, Patiala.

And pass any such order, writ or direction as the Honourable Court deems fit and proper, for this the Appellants shall duty bound pray.

ESPECTFULLY SUBMITTED ALL OF WHICH IS R ESPECTFULLY

ESPONDENT COUNSEL FOR THE R ESPONDENT

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