# Kamran v. State of U.P

- **Citation:** (2022) 4 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-31
- **Case number:** Criminal Appeal No. 1689 of 2021
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamran-v-state-of-u-p-48295
- **Pages:** 8

## Headnote

Law-
Narcotic
Drugs
And
Psychotropic
Substances
Act,
1985-
Section 8/21(b)- Conviction for a sentence
of five years imprisonment and with fine
of Rs. 25,000/- Application for confession
of the aforesaid offence - Quantum of
sentence- Doctrine of proportionality- The
judicial trend in the county has been
towards striking a balance between the
reform and punishment. The protection of
society and stamping out a criminal
proclivity must be the object of law which
can be achieved by imposing appropriate
sentence on criminals and wrongdoers.
Law, as a tool maintain order and peace,
should
effectively
meet
challenges
confronting the society. At the same time,
undue harshness should also be avoided
keeping in view the reformative approach
underlying in our criminal justice system.
In our country, the reformative and
corrective approach has been adopted in
criminal justice administration and thus so
far as the instant case is concern, there is
nothing on record to show that the
accused-appellant is incapable for being
reformative - Conduct and behavior of the
appellant shows that he is liable to be
reformed and there is no threat to the
society from the appellant- Sentence of
five years rigorous imprisonment awarded
to the appellant is reduced by four years
and as such one year sentence as well as
the fine of Rs. 25,000/- and in case of
default further six months additional
rigorous punishment is being upheld.

Settled law that the reformative and corrective
approach of criminal justice has been adopted in
our country and the same has to be balanced
with the proportionality of the punishment
imposed, hence the conduct and behaviour of
the accused would be a relevant factor in
modifying the sentence of the accused. (Para
15, 16, 17)

Criminal Appeal disposed of. (E-3)

Case law/Judgements relied upon:-

## Text

4 All. Kamran Vs. State of U.P.
69
we do not find a good reason to disbelieve
the prosecution case or to discard the
prosecution evidence which proves the
guilt of the appellant in the murder of his
wife beyond reasonable doubt.

29. Consequently, we affirm the
judgment and order of the trial court and
the appeal is, accordingly, dismissed. The
appellant is in jail and shall serve out the
sentence awarded to him without prejudice
to his right to apply for remission.

30. Let the record of the court below
along with certified copy of this order be
sent to the trial court below for information
and compliance.
----------
(2022)04ILR A69
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.03.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 1689 of 2021

Kamran ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Anil Kumar Pandey

Counsel for the Respondent:
G.A.

Criminal
Law-
Narcotic
Drugs
And
Psychotropic
Substances
Act,
1985-
Section 8/21(b)- Conviction for a sentence
of five years imprisonment and with fine
of Rs. 25,000/- Application for confession
of the aforesaid offence - Quantum of
sentence- Doctrine of proportionality- The
judicial trend in the county has been
towards striking a balance between the
reform and punishment. The protection of
society and stamping out a criminal
proclivity must be the object of law which
can be achieved by imposing appropriate
sentence on criminals and wrongdoers.
Law, as a tool maintain order and peace,
should
effectively
meet
challenges
confronting the society. At the same time,
undue harshness should also be avoided
keeping in view the reformative approach
underlying in our criminal justice system.
In our country, the reformative and
corrective approach has been adopted in
criminal justice administration and thus so
far as the instant case is concern, there is
nothing on record to show that the
accused-appellant is incapable for being
reformative - Conduct and behavior of the
appellant shows that he is liable to be
reformed and there is no threat to the
society from the appellant- Sentence of
five years rigorous imprisonment awarded
to the appellant is reduced by four years
and as such one year sentence as well as
the fine of Rs. 25,000/- and in case of
default further six months additional
rigorous punishment is being upheld.

Settled law that the reformative and corrective
approach of criminal justice has been adopted in
our country and the same has to be balanced
with the proportionality of the punishment
imposed, hence the conduct and behaviour of
the accused would be a relevant factor in
modifying the sentence of the accused. (Para
15, 16, 17)

Criminal Appeal disposed of. (E-3)

Case law/Judgements relied upon:-

1. S.K. Sakkar Vs The St. of W.B, Crl. Appl. No.
1661 of 2010

2. Shanti Lal Vs St. of M.P.,(2007) (2) EFR 702

3. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

4. St. of Punj. Vs Bawa Singh,Crl. Appl. No. 90
of 2015 arising out of SLP (Crl.) No. 5382 of
2014

5. Sham Sunder Vs Puran, (1990) 4 SCC 731
70 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Anil Kumar Pandey,
learned counsel for the appellant, Sri
Anirudh Kumar Singh, learned AGA-I for
the State and perused the record.

2. The present criminal appeal has
been preferred by the appellant against the
judgement and order dated 13.08.2021 and
punishment order dated 25.08.2021 passed
by Special Judge (N.D.P.S. Act), Court No.
10, Barabanki in Special Sessions Trial
(Special Criminal Case) No. 28/2014 (State
of U.P. vs. Kamran) arising out of Case
Crime No. 358/2013 relating to P.S.
Zaidpur, District Barabanki, whereby he
was convicted with sentence under Section
8/21(b) of N.D.P.S. Act for a period of five
years rigorous imprisonment and with fine
of Rs. 25,000/- and in case of default of
payment of fine further six months
additional imprisonment is awarded.

3. As per prosecution story, present
appellant including one other co-accused
person namely Anwar was arrested on
17.11.2013 and a contraband narcotic drug
i.e. 100 gm of morphine was recovered
from each of the accused. He submits that
infact two FIR's were lodged one is bearing
No. 357 of 2013 and the next one is bearing
no. 358 of 2013. The aforesaid recovery
was shown from both the accused persons
by a common recovery memo. Common
investigation was done and charge sheet
was filed bearing no. 13 of 2013. He
submits that trials were separately done and
one of the trial, which was proceeded in the
matter of Anwar i.e., Sessions Trial No.
27/2014, wherein, Anwar had confessed the
guilt and was awarded a punishment of one
year rigorous imprisonment and with fine
of Rs. 15,000/-. So far as the present
appellant is concerned, the trial proceeded
in S.S.T. No. 28/2014. During the trial
appellant was enlarged on bail. At the level
of framing of the charges, the present
appellant denied the charges and chose to
contest the case and in such an event, trial
proceeded in respect with the present
appellant.

4. The learned counsel for the
appellant contended that infact since 2013
no
witness
was
produced
by
the
prosecution up till 2021 and the appellant
was running on each and every date and
appeared before the court as and when the
case was fixed. He also added that
prosecution had failed to produced any
witness and as such it is a case where there
is no any witness was produced for
examination. He also submits that later on,
when under the compelling circumstances,
he moved an application for confession of
the aforesaid offence, the trial proceeded in
view of the application of confession so
submitted.

5. He submits that on 11.08.2021,
statement of present appellant was recorded
under Section 313 of the Cr.P.C. and after
considering the statement of the present
appellant as well the material on record the
trial court has passed the judgement dated
13.08.2021 and punishment order was
passed on 25.08.2021. By the aforesaid
judgement the sentence of 5 years rigorous
imprisonment and fine of Rs. 25,000/- was
awarded against the appellant.

6. Learned counsel for the appellant
has argued that the trial court has failed to
appreciate
the
evidences
which
was
adduced before it. It was also not
considered by the trail court that there is
non compliance of mandatory provision of
Section 50 of N.D.P.S. Act as the appellant
4 All. Kamran Vs. State of U.P.
71
was not produced before the Gazetted
Officer or Magistrate for his search. The
said occurrence was taken place on
17.11.2013 and after framing of the
charges, not a single witness or evidence
was
produced
before
the
court
by
prosecution in spite of full co-operation of
the appellant. The quantum of sentence has
also been fixed harshly. It has also not been
considered by the trial court that the
appellant had no criminal history and the
identically
situated
co-accused
who
confessed his guilt was awarded one year
sentence in the similar circumstances.
Learned counsel for the appellant further
argued that provision of Section 52, 55 and
57 of the N.D.P.S. Act was not complied
with and the prosecution had failed to
prove that the alleged contraband substance
was under the safe custody. The place of
occurrence was also highly suspicious and
the provision provided for search and
seizure in Notification No. 1/88 and 1/89
issued by the Central Government was also
not been complied with. Further the alleged
contraband substance was not sent for
chemical examination within 72 hours from
the time of occurrence and sampling is not
done as per law. He submits that infact
there is no any independent eye witness of
the alleged recovery to support the
prosecution version and there is lack of
chain of evidences to prove the link of
offence.

7. It was further contended that infact
there
is
no
minimum
punishment
prescribed under Section 8/21 (b) of
N.D.P.S. Act though that can be extended
up to 10 years of imprisonment. There are
several authorities of the Hon'ble Apex
Court as well as of this Hon'ble Court that
in case of confession of the guilt, the liberal
view would be adopted by the Court's. He
also argued on the issue of proportionality
of the sentence awarded as he has drawn
attention towards one of the identical coaccused namely Anwar who had confessed
his guilt at the level of framing of charges
and therefore awarded a punishment of one
year rigorous imprisonment as well as Rs.
15,000/- fine but so far as the present
appellant is concerned after running about
more than seven years from Court to Court,
he chose to confess the guilt and thus after
confession of the guilt, the court awarded
five years rigorous imprisonment and Rs.
25,000/- fine which is a hard blow and it is
not
in
consonance
with
the
settled
principles of reform of the prisoners.

8. Further he added that in fact the
Hon'ble Apex Court in case of S.K. Sakkar
vs. The State of West Bengal in Criminal
Appeal No. 1661 of 2010 has held that it's
manifest from Section 20 (i) of N.D.P.S.
Act (as it stood in 1997) that even though a
maximum sentence of five years rigorous
imprisonment and a fine of Rs. 50,000/-
was prescribed but there was no minimum
mandatory sentence and as such the
legislature had its own wisdom left it to the
discretion of a court to award the minimum
sentence albeit guided by the well known
principles
on
the
proportionality
of
sentence which is extracted below:

10. We find some merit in the
submission noticed above. It may be noted
that the appellant committed the crime in
the year 1997, i.e., much before the
Narcotic
Drugs
and
Psychotropic
Substances (Amendment) Act, 2001 came
into
force.
The
punishment
for
contravention in relation to cannabis plant
or any other provision of the NDPS Act, in
his case, would thus be regulated by the
unamended Section 20 of the NDPS Act, as
it stood before the amendment of 2001 and
which reads as follows:
72 INDIAN LAW REPORTS ALLAHABAD SERIES

"20.
Punishment
for
contravention in relation to cannabis plant
and cannabis. Whoever, in contravention of
any provision of this Act or any rule or
order made or condition of license granted
thereunder.

(a) cultivates any cannabis plant;
or

(b)
produces,
manufactures,
possesses, sells, purchases, transports,
imports inter-State, exports inter-State or
uses cannabis, shall be punishable,

(i) where such contravention
relates to ganja or the cultivation of
cannabis plant, with rigorous imprisonment
for a term which may extend to five years
and shall also be liable to fine which may
extend to fifty thousand rupees;

(ii) where such contravention
relates to cannabis other than ganja, with
rigorous imprisonment for a term which
shall not be less than ten years but which
may extend to twenty years and shall also
be liable to fine which shall not be less than
one lakh rupees and which may extend to
two lakh rupees:

Provided that the court may, for
reasons to be recorded in the judgment,
impose a fine exceeding two lakh rupees."
(emphasis supplied)

11. It is manifest from Section 20(i) of
NDPS Act (as it stood in 1997), that even
though a maximum sentence of five years RI
and a fine of upto Rs. 50,000/- was prescribed
but there was no minimum mandatory sentence.
The Legislature had in its wisdom left it to the
judicious discretion of a court to award the
minimum sentence albeit guided by the well
known principles on the proportionality of
sentence. Taking into consideration the peculiar
facts and circumstances of this case, it appears
to us that the ends of justice would be
adequately met if the appellant's sentence is
reduced to the extent of the period he has
already undergone. We order accordingly.

9. Referring the aforesaid learned
counsel has argued that infact there is no
minimum
punishment
prescribed
and
therefore the proportionality of the sentence
is to be looked into by the court concerned
as the legislature has in its own wisdom left
it to the discretion of a court concerned. He
also referred one of the case Shanti Lal vs.
State of M.P., reported in (2007) (2) EFR
702 wherein Hon'ble Apex Court reduced
the sentence in lieu of fine of three years to
six months. He further added that in fact
the arguments on quantum of sentence is to
be heard and in fact it should be as per the
doctrine of proportionality as per various
settled proposition of law.

10. The learned counsel has also
placed reliance in the case of Mohd.
Giasuddin Vs. State of AP, reported in
AIR 1977 SC 1926, explaining rehabilitary
& reformative aspects and while sentencing
it has been observed by the Supreme Court,
extracted as follows:-

"Crime
is
a
pathological
aberration. The criminal can ordinarily
be redeemed and the state has to
rehabilitate rather than avenge. The subculture
that
leads
to
ante-social
behaviour has to be countered not by
undue cruelty but by re-culturization.
Therefore, the focus of interest in
penology in the individual and the goal is
salvaging him for the society. The
infliction of harsh and savage punishment
is thus a relic of past and regressive
times. The human today vies sentencing
as a process of reshaping a person who
has deteriorated into criminality and the
modern community has a primary stake in
the rehabilitation of the offender as a
means of a social defence. Hence a
therapeutic, rather than an 'in terrorem'
outlook should prevail in our criminal
4 All. Kamran Vs. State of U.P.
73
courts, since brutal incarceration of the
person merely produces laceration of his
mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

The Hon'ble Supreme Court has
basically focused that anti social behaviour
cannot be all time countered by civil laws
but by being mild through re-culturization,
the same can be achieved. Further the
punishment to the injured person and the
improvement cannot be adhered with
causing injury.

11. After the aforesaid contention,
learned counsel for the appellant argued on
the quantum of sentence and has submitted
that the accused appellant has been in jail
prior to trial, for six months and after the trial
he is in jail since 13.08.2021. He further
submitted that accused has been convicted for
a
sentence
of
five
years
rigorous
imprisonment and fine of Rs. 25,000/-. He
submits that appellant has served a substantial
period and as such accused-appellant should
be released on undergone or substantial
reduction in sentence may be done.

12. Countering the aforesaid learned
AGA-I has very vehemently opposed the
contention of the appellant's counsel and
submits that learned trial court has rightly
appreciated the statements of the witnesses
and
the
evidences
adduced
by
the
prosecution and has passed the judgment
and order. He also added that though there
is no maximum punishment provided under
Section 8/21-b but the same may be
extended upto 10 years. He submitted that
this is an offence which is against the
society and as such the court may be harsh
even applying the reformative theory of
punishment.

13. In support of his contention
learned counsel appearing for State has
placed reliance on the judgment of Hon'ble
Apex Court in case of State of Punjab vs.
Bawa Singh in Criminal Appeal No. 90
of 2015 arising out of SLP (Crl.) No.
5382 of 2014, wherein it is held that liberal
view while imposing inadequate sentence
would have an impact of more harm to the
justice system and the public confidence in
the efficacy of law shall be undermined and
there must be a serious threats to the
society. The relevant part of the aforesaid
judgement is extracted as under:-

8. Therefore, undue sympathy to
impose inadequate sentence would do more
harm to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed, etc."

16. A three-Judge Bench of this
Court in Ahmed Hussein Vali Mohammed
Saiyed vs. State of Gujarat, (2009) 7 SCC
254, observed as follows:

"99. ... The object of awarding
appropriate sentence should be to protect
the society and to deter the criminal from
achieving the avowed object to (sic break
the) law by imposing appropriate sentence.
It is expected that the courts would operate
the sentencing system so as to impose such
sentence which reflects the conscience of
the society and the sentencing process has
to be stern where it should be. Any liberal
attitude by imposing meagre sentences or
taking too sympathetic view merely on
account of lapse of time in respect of such
offences
will
be
resultwise
counterproductive in the long run and
against the interest of society which needs
74 INDIAN LAW REPORTS ALLAHABAD SERIES
to be cared for and strengthened by string
of deterrence inbuilt in the sentencing
system.

100. Justice demands that courts
should impose punishment befitting the
crime so that the courts reflect public
abhorrence of the crime. The court must not
only keep in view the rights of the victim of
the crime but the society at large while
considering the imposition of appropriate
[pic]punishment. The court will be failing
in its duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
both the criminal and the victim belong."

17. We again reiterate in this case
that undue sympathy to impose inadequate
sentence would do more harm to the justice
system to undermine the public confidence
in the efficacy of law. It is the duty of every
court to award proper sentence having
regard to the nature of the offence and the
manner in which it was executed or
committed. The sentencing courts are
expected to consider all relevant facts and
circumstances bearing on the question of
sentence and proceed to impose a sentence
commensurate with the gravity of the
offence. The court must not only keep in
view the rights of the victim of the crime
but also the society at large while
considering the imposition of appropriate
punishment. Meagre sentence imposed
solely on account of lapse of time without
considering the degree of the offence will
be counter-productive in the long run and
against the interest of the society.

18. Recently, in the cases of State
of Madhya Pradesh vs. Bablu, (2014) 9
SCC 281 and State of Madhya Pradesh vs.
Surendra Singh, 2014 (12) SCALE 672,
after considering and following the earlier
decisions, this Court reiterated the settled
proposition of law that one of the prime
objectives of criminal law is the imposition
of adequate, just, proportionate punishment
which commensurate with gravity, nature
of crime and the manner in which the
offence is committed. One should keep in
mind the social interest and conscience of
the
society
while
considering
the
determinative factor of sentence with
gravity of crime. The punishment should
not be so lenient that it shocks the
conscience of the society. It is, therefore,
solemn duty of the court to strike a proper
balance while awarding the sentence as
awarding lesser sentence encourages any
criminal and, as a result of the same, the
society suffers.

19. Perusal of the impugned order
passed by the High Court would show that
while reducing the sentence to the period
already undergone, the High Court has not
considered the law time and again laid
down by this Court. Hence the impugned
order passed by the High Court is set aside
and the matter is remanded back to the
High Court to pass a fresh order in the
revision petition taking into consideration
the law discussed hereinabove after giving
an opportunity of hearing to the parties.
The appeal is accordingly allowed with the
aforesaid direction.

14. He has further placed reliance in
case of Sham Sunder vs Puran, reported
in (1990) 4 SCC 731, where the high court
reduced the sentence for the offence under
section 304 part I into undergone; the
Supreme Court opined that the sentence
needs to be enhanced being inadequate. It
was held as under:-

"The
court
in
fixing
the
punishment for any particular crime should
take into consideration the nature of
offence, the circumstances in which it was
committed and the degree of deliberation
4 All. Kamran Vs. State of U.P.
75
shown by the offender. The measure of
punishment should be proportionate to the
gravity of offence."

15. Considering the contention of the
counsel for the parties and after discussing
the law laid down by the Hon'ble Apex
Court as well as by the other High Courts,
it emerges that basic tenant of criminal law
is based on social contract theory that a
crime is always against the society and not
just against the victim. While prosecuting
the perpetrators is necessary to prove his
guilt. It is to ensure that the ends of justice
are met. There are four established theory
in the criminal jurisprudence with regard to
awarding
punishment
i.e.,
Retributive
theory, Deterrent theory, Preventive theory
and
Reformative
theory.
Reformative
theory is based on concept that every
person is capable of being reformed and
reintegrated into the society. This is
internationally the most acceptable theory
of punishment in light of the International
Human Rights Law. The Hon'ble Apex
Court in Mohd. Giasudding (supra) has
held that the reformative or the restorative
theory of punishment states that the aim of
the penal system of a state should be
reforms of the criminals and not to purely
punish them.

16. The judicial trend in the county
has been towards striking a balance
between the reform and punishment. The
protection of society and stamping out a
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool maintain order
and
peace,
should
effectively
meet
challenges confronting the society. At the
same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system. In our country, the reformative and
corrective approach has been adopted in
criminal justice administration and thus so
far as the instant case is concern, there is
nothing on record to show that the accusedappellant
is
incapable
for
being
reformative.

17. In the instant matter, the accusedappellant is in jail since 13.08.2021 and
prior to that he has served six months of
imprisonment and there is no any other
criminal antecedent of the appellant. It is
also considerable that every convict is
entitled for the advantage of reformative
and corrective jurisprudence. Further the
appellant was on bail during the pendency
of the trial and he did not misuse the liberty
of bail so granted. He also kept on
appearing on each dates fixed by the trial
court and never jumped the bail. All these
conduct and behavior of the appellant
shows that he is liable to be reformed and
there is no threat to the society from the
appellant.

18. Considering the facts and
circumstances
of
the
case
and
the
submission of learned counsel for the
parties, the judgement and order dated
13.08.2021 and order dated 25.08.2021
passed by Special Judge (N.D.P.S. Act),
Court No. 10, Barabanki in Special
Sessions Trial (Special Criminal Case) No.
28/2014 (State of U.P. vs. Kamran) arising
out of Case Crime No. 358/2013 relating to
P.S. Zaidpur, District Barabanki whereby
the accused-appellant was convicted under
Section 8/21(b) of N.D.P.S. Act for a
sentence of five years imprisonment and
with fine of Rs. 25,000/- and in case of
default of payment of fine further six
months additional rigorous imprisonment is
hereby modified and sentence of five years
rigorous imprisonment awarded to the
76 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant is reduced by four years and as
such one year sentence as well as the fine
of Rs. 25,000/- and in case of default
further six months additional rigorous
punishment is being upheld.

19. With the above modification, the
appeal is accordingly disposed off, finally.

20. Office is directed to send the
certified copy of this judgment along with
lower court record to the court concerned
for information and necessary action.
----------
(2022)04ILR A76
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 3930 of 2016

Mohammad School ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Syed Irfan Ali, Sri Mohd, Naushad, Smt.
Beena
Mishra,
Sri
Praveen
Kumar
Srivastava, Sri Vijay Prakash Chaturvedi, Sri
A.K. Rai

Counsel for the Respondents:
A.G.A.

Section 8/20 of NDPS Act

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
3131-
The
statement of the accused-appellant under
Section 313 Cr.P.C. is not a substantive
piece of evidence. It can be used for
appreciating
evidence
lead
by
the
prosecution to accept or reject it. The
statement of accused-appellant as stated
in statement under Section 313 Cr.P.C.
will
be
taken
into
consideration
in
appreciating the evidence of prosecution
and in arriving at a conclusion regarding
the
truthfulness
and
falsity
of
the
prosecution case.

Settled law that statement of the accused
recorded u/s 3131 of the CrPc is not substantive
evidence but the same can be used to
appreciate the evidence of the prosecution and
the truthfulness thereof.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Section 50- The Charas was recovered
from the bag which was in his right hand
not from his personnel search, therefore,
the compliance of Section 50 of NDPS Act
was not needed.

Where the recovery of the contraband is made
from the bag of the accused and not from his
person, then Section 50 of the Act will not be
attracted.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Indian Evidence Act, 1872- Section 118,
Code of Criminal Procedure, 1973- Section
100 (4) - Absence of public witnesses-
effect of- The recovery was made from the
accused-appellant
without
prior
knowledge by the police personnels that
accused-appellant
has
Charas
and
recovery was made all of sudden in a
lonely place of grove where no public
witnesses
were
present.
In
above
circumstances,
non-joining
of
public
witnesses in search will not affect the
prosecution case. Police personnels are
competent witness to adduce evidence
before the learned court below, therefore,
there is no substance in the argument of
the learned counsel for the accusedappellant that in absence of independent
witness no reliance can be placed.

Where the recovery is sudden and from a
desolate
spot
where
independent
public
witnesses
may
not
be available
to
the
prosecution, then merely because only police
personnel were examined as witnesses will not