Court should be overcautious before relying on evidence with which witness has not been confronted: Supreme Court while upholding NDPS conviction

The Supreme Court recently emphasised that courts must be careful before relying on evidence that the concerned witness has not been confronted with (Raveen Kumar v. State of Himachal Pradesh). .The Court made the observation while dismissing an appeal made by a man accused of possessing contraband who was convicted to a two-year imprisonment term under the Narcotics Drugs and Psychotropic Substances (NDPS) Act. .The top Court upheld a Himachal Pradesh High Court verdict, while noting that the appellant-accused had not confronted a relevant independent witness with evidence sought to be produced by the accused..The Bench of Justices NV Ramana, Surya Kant and Hrishikesh Roy observed,."... a Court should be overcautious to place reliance on a piece of evidence with which the concerned witness has not been confronted despite an opportunity to do so."Supreme Court.The Bench added, ."Although there is no need to separately prove the court records emanating during trial but no legal presumption can be extended to the veracity of the contents of such documents. The reply filed in court proceedings, at best, can be treated as an admission; which as held by this Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil5 , must not only be proved, but also the opposite party must be confronted with it at the stage of cross examination.".The accused in this case claimed that he was being falsely implicated for not contributing money to a Police Sporting event. The vehicle of the accused was seized from where contraband was recovered by the police. .The trial court had acquitted the accused stating that no independent witness had supported the prosecution's case. However, the High Court set aside the trial court verdict while also relying on testimony by an independent witness, which supported the prosecution's case, but was discarded by the trial court. .The High Court observed that this witness, termed as hostile by the trial court, had only stated that he was ignorant of a minor portion of the prosecution's case. Expressing agreement with the High Court's decision to rely on his testimony, the Supreme Court said, ."The trial Court held that no independent witness supported the prosecution case and that the testimonies of the star policewitnesses, namely, PW2 and PW5, were contradictory. Both these observations are unreasoned and unsubstantiated by the evidence on record. The High Court, on the contrary, has given cogent and lucid reasons as to how the testimony of PW1 (alleged hostile independent witness) also substantially supports the prosecution case.".Pertinently, while acquitting the accused, the trial court had relied on a reply filed by the State in a bail plea moved by the accused, to find that the recovery of the contraband was not a "chance recovery." This, in turn, was a substantial factor which led to the acquittal of the accused..However, the High Court noted that the State was not confronted with this reply in cross-examination. The Supreme Court also regarded this failure on critical lines, observing, ."It is apparent that the appellant’s acquittal was primarily based upon the finding that the case was not one of ‘chance recovery’. The trial Court reached such finding solely on the basis of certain averments made in a written reply submitted on 09.11.1994 by the prosecution in opposition to the appellant’s bail application... Learned counsel for the appellant could not fairly dispute the distinction between ‘replies’ submitted to the Court in some pending proceedings, as compared to the statements recorded by the police under Section 161 of CrPC.".The Supreme Court added that the lack of independent witnesses is not fatal to the prosecution's case.."It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. However, such omissions cast an added duty on Courts to adopt a greater degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction", the Bench said. .With these, among other, observations, the High Court's conviction of the accused was upheld and his appeal dismissed. The Supreme Court also added that the High Court was "far too charitable" in granting only two-years' imprisonment to the accused for possessing 1.23 kg of contraband..Read judgment: