Case: Noor Aga Vs. State Of Punjab

hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure to which we may now take note of. 104. Discrepancies in the Statements of Official Witnesses 105. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda v. Arizona [(1966) 384 US 436] in the following terms: "The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be ‘right, just and fair." 106. Justness and fairness of a trial is also implicit in Article 21 of the Constitution. 107. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. 108. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. It is one thing to say that even applying the well-known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience or otherwise. 109. PW1 states that he had asked the accused that a search be conducted under the Act before a Gazetted Officer or a Magistrate but the same was not mentioned in the panchnama Exhibit PC. If the evidence of PW1 in that behalf is correct, we fail to understand how PW2 satisfied himself that an option had been given to the accused to be searched before a gazetted officer. Exhibit PA shows that option to search was given after the recovery was made since it is stated therein: "After recovery the custom officer informed his senior officer and was asked whether I would like to present myself for personal search before a Magistrate or a Gazetted Officer". 110. The said document, therefore, indicates that the gazetted officer or the independent witnesses were not present at the time of purported recovery. Exhibit PC, however, shows the presence of independent witnesses at the time of recovery. The credibility of the statements, having regard to these vital discrepancies stands eroded. A person who is sought to be arrested or searched has some rights having regard to the decision of this Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] . D.K. Basu rule states that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked in Balbir Singh (supra). 111. We are not oblivious that the decision of State of Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350] wherein Section 50 of the Act having been held to be inapplicable in relation to a search of a bag but in this case the appellants person had also been searched. The High Court disregarded that although Exhibit PA may not affect a technical compliance of Section 50 of the Act on taking a complete and circumspect view of the materials brought on record, but the same, in our opinion, affect the credibility of the documentary evidence and the statements of the official witnesses, namely, PW1 and PW2. If origin of principle has not been followed and discrepancies and contradictions have occurred in the statements of PW1 and PW2 the same would cause doubt on the credibility of prosecution case and their claim of upholding procedure established by law in effecting recovery. CONCLUSION 112. Our aforementioned findings may be summarized as follows: 1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India. 2. However, procedural requirements laid down therein are required to be strictly complied with. 3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt. 4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility. 5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. 6. The investigation of the case was not fair. 113.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Our aforementioned findings may be summarized as follows:1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India2. However, procedural requirements laid down therein are required to be strictly complied with3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law6. The investigation of the case was not fair