Background of the appeal
1. This appeal is at the instance of the Accused-Appellant namely, Sathyan against the order and judgement dated 5th September, 2019 passed by the High Court of Kerala at Ernakulam in Criminal Appeal No. 2822 of 20081, wherein his prayer to set aside the conviction in S.C. No. 1140 of 2006 under Section 8 of the Abkari Act, was denied and the findings returned by 1 Hereinafter referred to as the “impugned judgement” 2 Additional District & Sessions Judge, Fast Track (Ad Hoc-11), Kozhikode, in judgment dated 3rd November, 2008, were endorsed.
Grounds on challenge
12. The grounds of challenge, as urged by the Appellant are that in the absence of independent witnesses, the investigation cannot be sustained since the detecting officer and investigator were both official witnesses; there is interpolation in the Mahazar with respect to the quantity of the sample initially being written as 375 ML but then subsequently been corrected to 180 ML; there is unexplained delay in production of the contraband before the trial court; the evidence of PW-2(C.K Manoharan) clearly shows that he was not aware of the seizure and also that he was not present at this spot; members of the patrol team were not made into witnesses; independent witnesses who signed the Mahazar were not examined, et cetera.
13. The question that we must consider is whether the conviction, solely on the basis of official witnesses is sustainable in the present facts? And, whether the delay of nearly 3 years in filing the challan can be said to be materially affecting the correctness of the judgement of the lower court as also the judgement impugned before us?
14. The trial court, when faced with this question of the conviction being based solely on the testimony of official witnesses, referred to two judgements of this court in Tahir v. State (Delhi) – (1996) 3 SCC 338 and Karamjiti Singh v. State (Delhi Administration) – (2003) 5 SCC 291 to observe that, there is no bar on convictions being based solely on the testimony of the police officials.
There is no bar to investigate the offence by the same officer who received the information
16. Therefore, it can no longer be said to be res integra that the person receiving the information of the crime or detecting the occurrence thereof, can investigate the same. Questioning such investigation on the basis of bias or such like factor, would depend on the facts and circumstances of each case. It is not amenable to a general unqualified rule that lends itself to uniform application.
21. From the above discussion, it is clear that simply because the person who detected the commission of the offence, is the one who filed the report or investigated, such an investigation cannot be said to be bad in law. That particular submission therefore must necessarily be negatived. We also notice that, the judgement of the trial court categorically records that the person conducting the investigation was PW-4 and neither PW-1 nor PW-2, on whose testimonies the court has relied to hand down a verdict of conviction. On that ground also, the submission of the Appellant, must be negatived.
22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground.
25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi13) had observed that the testimonies of police witnesses, as well as pointing out memos do not stand vitiated due to the absence of independent witnesses.
26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on “any good reason” which, quite apparently is missing from the present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW – 1 and PW – 2, which the courts below have found absolutely to be inspiring in confidence. Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and is confirmed by the High Court vide the impugned judgement, cannot be faulted with.
Party
Sathyan vs State of Kerala – Crl. Apl No: 2363 OF 2023 arising out of SLP (Crl.) No. 9710/2023 – AUGUST 11, 2023;
https://main.sci.gov.in/supremecourt/2022/16317/16317_2022_11_1502_46028_Judgement_11-Aug-2023.pdf
