IN THE SUPREME COURT OF INDIA       CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 1960 OF 2009

Jarnail Singh                                                         … Appellant  

VERSUS

State of Punjab                                                   …Respondent  

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the final Order of the High  

Court of Punjab and Haryana at Chandigarh dated 12th May,  

2008  passed  in  Criminal  Appeal  No.  590  –  SB  of  1999,  

whereby the High Court upheld the order of conviction passed  

against the appellant herein under Section 18 of the Narcotic  

Drugs  and  Psychotropic  Substances  Act,  1985  (hereinafter  

referred  to  as  “NDPS  Act”),  and  sentenced  him  to  undergo  

rigorous  imprisonment  for  ten  years  and  to  pay  a  fine  of  

Rs. one lac and in default of payment of the same, to undergo  

1

rigorous imprisonment for another two years, for having been  

found in possession of 1 kg and 750 grams of opium without  

any permit or licence.

2. The prosecution story is that on 23rd September, 1994 at  

around 2.30 PM, Inspector Ram Pal Singh (PW4) along with SI  

Gurdeep  Singh,  ASI  Satpal  Singh  (PW5)  and  other  officials  

were on duty and coming from village  Hassanpur to village  

Mirsapur. After reaching near the bridge of canal minor while  

going on kacha path, the police party noticed the appellant  

coming from the bank of canal. On seeing the police party, the  

appellant  tried  to  run  away  but  on  suspicion  he  was  

apprehended.  On enquiry,  he informed the police about his  

name, parentage, address etc. At that time, he was carrying a  

bag (thaili)  in  his  right  hand.  PW4 suspected that  that  the  

appellant was carrying some incriminating articles in his bag.  

The search was conducted and the police party recovered 1 Kg  

and 750 gram opium from his custody.  

2

3. Ten  grams  of  opium  was  put  into  a  tin  container  as  a  

sample.  It  was duly sealed.  The entire case property was  

taken  into  possession  vide  memo Ex.  PD  attested  by  SI  

Gurdeep Singh and ASI  Satpal  Singh.  The seal  after  use  

was handed over to ASI Satpal Singh (PW5). The appellant  

could not produce any valid license or permit for possession  

of  the  said  opium.  On  personal  search,  currency  notes  

amounting          to Rs. 25 /- was also recovered from the  

accused  and  the  same  was  taken  into  possession  vide  

memo Ex. P1, signed by the appellant.  Ruqa Ex. PF was  

sent  to  the  police  station  and subsequently  the  FIR was  

registered.  Inspector,  Ram  Pal  (PW4)  recorded  the  

statements of the witnesses and arrested the appellant.  

4. Inspector, Ram Pal (PW4) then produced the appellant along  

with the case property and witnesses before Satpal Singh  

(PW5) on the same day of the alleged crime. PW4 enquired  

about  the  alleged  incident  from  other  witnesses  and  

checked  the  case  property  and also  affixed  his  own seal  

bearing  impression  ‘RP’  on  the  case  property  and  on  

3

samples  of  seal  Ex.  PD/1.  Thereafter,  PW3  at  7.30  PM  

deposited the sealed case property with MHC Shudh Singh.  

The investigation was duly completed and challan against  

the  appellant  was  prepared  by  S.I.  Bagh  Singh.  The  

prosecution in support of  its  case, examined Sudh Singh  

(Head Constable)  (PW1),  Chet  Ram (PW2),  Rachpal  Singh  

(Inspector) (PW3), Ram Pal Singh (PW4) and Satpal Singh  

(PW5).  

5. The Addl. Sessions Judge vide its final order and judgment  

dated 19th May, 1999 convicted and sentenced the appellant  

under section 18 of the NDPS Act, as noticed above. The  

High Court, in an appeal, vide judgment                     dated  

12th May, 2008 affirmed the findings of the Sessions Court  

and dismissed the appeal filed by the appellant. Hence the  

appeal before this Court.

6.  We  have  heard  the  counsel  for  both  parties.  Mr.  Ujjal  

Singh, counsel for the appellant submits as follows:

4

i. The  whole  incident  happened  in  a  densely  

populated  area  and  there  were  so  many  

independent witnesses but only the police have  

been  made  the  prosecution  witnesses.  The  

appellant has been falsely implicated.  

ii. The  courts  below  have  not  considered  the  

appellant’s  version  as  recorded  under  

Section  313  Cr.P.C.  The  appellant  was  

apprehended from his village on 10th September,  

1994  by  the  police  party.  Another  police  party  

dug up his house and courtyard looking for illicit  

arms. But nothing incriminating was found. The  

Ex-Sarpanch,  Narang  Singh  asked  them  the  

reason for the digging. The police told him that  

they were searching for  opium and illicit  arms,  

and  that  he  had  relations  with  terrorists.  

Thereafter,  the police took the appellant  to CIA  

staff.  He  was  tortured  by  using  third  degree  

methods. Then he was falsely implicated in this  

case. The Courts below have also disregarded the  

5

deposition of DW-1, Sarpanch Narang Singh for  

no valid grounds.

iii. Section  50  of  the  NDPS  Act  is  a  mandatory  

provision but the same was never followed in the  

present case. The appellant was never given any  

option nor taken to the nearest Gazetted Officer  

or Magistrate for his search.

iv. There  is  a  delay  of  twelve  days  in  sending the  

sample  for  the  chemical  examination.  The  

prosecution  has  not  been  able  to  give  any  

reasonable justification for such delay.  

v. The consent statement made by the appellant is  

in-admissible  under  section  25  of  the  Indian  

Evidence Act, 1872.

vi. There  are  vital  lapses in  the  present case.  The  

version deposed by PW -3 is inconsistent with the  

deposition of PW -4.  

vii. The prosecution has not been able to prove as to  

from where  they  got  weighing  scale,  tin  dabba  

and  dabhi.  The  police  also  could  not  give  any  

6

valid reason as to why they had gone to the spot.  

This  shows  that  they  were  pre  -  prepared  and  

have falsely implicated the appellant.  

7.  On  the  other  hand,  Mr.  H.M.  Singh,  counsel  for  the  

respondent submits as follows:

i. The  appellant  is  rightly  been  convicted  under  

section 18 of the NDPS Act. There are numerous  

witnesses and evidences to prove his guilt.  

ii. The appellant was apprehended with contraband  

by the policy party and he was arrested after the  

registration of his case vide Ruqa Ex. PF.

iii. The deposition of DW-1, Sarpanch Narang Singh  

is baseless. The appellant was arrested on      23rd  

September, 1994 but DW -1 appeared for the first  

time  before  the  Sessions  Court  on  13th May,  

1999, i.e. after five long years.  

iv. Delay of 11 – 12 days in sending the sample for  

chemical examination is not enough to demolish  

the case of the prosecution. There is nothing on  

7

record  to  show  that  the  sample  parcel  was  

tampered by the prosecution at any stage.  

8. The trial  court  as also the High Court  have meticulously  

examined  and  re-examined  the  entire  evidence.  On such  

close scrutiny, both the courts have concurrently found that  

the  prosecution  has  proved  its  case  beyond  reasonable  

doubt. Undoubtedly the jurisdiction and the powers of this  

Court  under  Article  136  are  very  wide.  Even  then,  

interference with concurrent findings of  fact  would be an  

exception and not the rule.  On numerous occasions,  this  

Court  has  emphasised  that  an  appeal  under  Article  136  

cannot be converted into a third appeal on facts. This Court  

in the case of Ganga Kumar Srivastava Vs. State of Bihar1  

discussed at length, the circumstances in which this Court  

may interfere with the concurrent finding of facts; which are  

as follows:

“From the aforesaid series of decisions of   this Court on the exercise of power of the   

1 (2005) 6 SCC 211

8

Supreme  Court  under  Article  136  of  the  Constitution following principles emerge:  

(i)  The  powers  of  this  Court  under  Article  136  of  the  Constitution  are  very  wide but  in  criminal  appeals  this  Court  does  not  interfere  with  the  concurrent   findings  of  fact  save  in  exceptional  circumstances.

(ii)  It  is  open to  this  Court  to  interfere  with the findings of fact given by the High  Court,  if  the  High  Court  has  acted  perversely or otherwise improperly.

(iii) It is open to this Court to invoke the   power  under  Article  136  only  in  very  exceptional circumstances as and when a  question  of  law  of  general  public   importance arises or a decision shocks the   conscience of the Court.

(iv) When the evidence adduced by the  prosecution  fell  short  of  the  test  of   reliability and acceptability and as such it   is highly unsafe to act upon it.

(v)  Where the  appreciation  of  evidence  and finding is vitiated by any error of law  of  procedure  or  found  contrary  to  the  principles  of  natural  justice,  errors  of   record and misreading of the evidence, or   where  the  conclusions of  the  High Court  are  manifestly  perverse  and  unsupportable  from  the  evidence  on  record.“

9. The first submission of Mr. Ujjal Singh, learned counsel, is  

that  the  appellant  has  been  falsely  implicated.  We  are  

unable  to  accept  this  submission.  Merely  because  the  

prosecution  has  not  examined  any  independent  witness,  

9

would  not  necessarily  lead  to  the  conclusion  that  the  

appellant has been falsely implicated. It was clearly a case  

where the police personnel had noticed the odd behaviour of  

the appellant when he was walking towards them on a path  

which  led  to  village  Mirzapur.  It  was  the  display  of  

hesitation by the appellant on sighting the police party that  

Satpal Singh (PW5) became suspicious. On seeing the police  

personnel, the appellant tried to run away from the scene. It  

was not a case where the prosecution has claimed that the  

appellant  was  apprehended  on  the  basis  of  any  earlier  

information  having  been given  by  any secret  informer.  It  

was also not a case of trap. In such circumstances, it would  

not be possible to hold that the appellant has been falsely  

implicated.  

10.The prosecution has offered a plausible  explanation with  

regard to non-joining of the independent witnesses. It was  

clearly stated by PW5 that the path on which the appellant  

was apprehended was not frequently used by the public. In  

fact, efforts were made to bring a member of Panchayat or  

10

Sarpanch  of  the  village.  However,  the  Head  Constable  

Baldev Singh who had been sent, reported that none of the  

villagers  were prepared to  join as independent  witnesses.  

This  reluctance  on  the  part  of  the  villagers  is  neither  

strange nor unbelievable. Generally, people belonging to the  

same village  would not  unnecessarily  want  to  create bad  

relations/enmity  with  any  other  villager.  Especially  when  

such  a  person  would  be  feeling  insecure,  having  been  

accused of committing a crime.   

11.We also do not find any substance in the submission of Mr.  

Ujjal Singh that both the courts have ignored the plea of the  

appellant  under  Section  313  of  the  Cr.P.C.  without  any  

basis. The evidence of DW1, Narang Singh, upon which the  

appellant  placed  heavy  reliance  would  not  be  of  much  

assistance  to  the  appellant.  It  is  note  worthy  that  even  

according to the appellant the police had dug up his house  

and the courtyard on 10th September, 1994. According to  

the appellant,  nothing incriminating was found. This was  

sought to be supported by the evidence given by DW1, the  

11

Ex–Sarpanch, Narang Singh. Both the courts below, in our  

opinion,  have  correctly  concluded  that  such  evidence  

cannot  be  believed  as  the  witness  DW1  seems  to  have  

appeared for  the  first  time as a witness in court  on 13th  

May,  1999.  Prior  to  the  appearance  in  court,  this  Ex-  

Sarpanch did not make any complaint in writing either to  

the police authorities or to the civil  administration. Being  

the Ex- Sarpanch of the village, he can be expected to act  

with responsibility.  There is  no material  to  show that  he  

made  any  efforts  to  complain  about  the  high  handed  

behaviour  of  the  police.  In  our  opinion,  both  the  courts  

below have rightly discarded the evidence of DW1.

12.The next submission made by Mr. Ujjal Singh is that there  

has been non compliance of Section 50 of the NDPS Act, in  

that requisite option was not given to the appellant, as to,  

whether  he  wanted  to  be  searched  in  the  presence  of  a  

Gazetted Officer or a Magistrate. We are unable to accept  

the  aforesaid  submission.  Inspector  Ram  Pal  (PW4)  has  

clearly  stated  that  the  option  was  duly  given  to  the  

12

appellant. The appellant had, in fact, signed on the consent  

statement  expressing  his  confidence  to  be  searched  in  

presence of the aforesaid witness.  Similarly,  Satpal Singh  

PW5 has also stated that before affecting the search, the  

accused/appellant  was  given  the  necessary  option  as  to  

whether he wanted to be searched before a Gazetted Officer  

or a Magistrate. This witness also stated that the appellant  

reposed  his  confidence  in  Inspector  Rampal.  In  such  

circumstances,  it  cannot  be  held  that  there  was  non  

compliance with Section 50 of the NDPS Act.  

12. This  apart,  it  is  accepted  that  the  narcotic/opium,  

i.e., 1 kg. and 750 grams was recovered from the bag (thaili)  

which  was  being  carried  by  the  appellant.  In  such  

circumstances,  Section  50  would  not  be  applicable.  The  

aforesaid  Section  can  be  invoked  only  in  cases  where  the  

drug/narcotic/NDPS substance is recovered as a consequence  

of the body search of the accused. In case, the recovery of the  

narcotic  is  made  from  a  container  being  carried  by  the  

individual, the provisions of Section 50 would not be attracted.  

13

This  Court  in  the  case  of  Kalema  Tumba Vs. State  of  

Maharastra2 discussed the provisions pertaining to ‘personal  

search’ under Section 50 of the NDPS Act and held as follows;

“…….  if  a  person  is  carrying  a  bag  or   some other article  with  him and narcotic   drug  or  psychotropic  substance  is  found  from it, it cannot be said that it was found  from his person.”

Similarly,  in  the  case  of  Megh  Singh Vs.  State  of  

Punjab3, this Court observed that;

“A bare reading of section 50 shows that   it applies in case of personal search of a  person. It does not extend to a search of a  vehicle or container or a bag or premises.”

The scope and ambit of Section 50 was also examined by  

this Court in the case of State of Himachal Pradesh Vs.  

Pawan Kumar4.  In  paragraphs  10  and  11,  this  Court  

observed as follows:-

“10. We are not concerned here with the wide   definition  of  the  word  “person”,  which  in  the  legal world includes corporations, associations  or body of individuals as factually in these type  of cases search of their premises can be done  

2  (1999) 8 SCC 257 3 (2003) 8 SCC 666 4  (2005) 4 SCC 350

14

and not of  their  person.  Having regard to  the   scheme of the Act and the context in which it   has been used in the section it naturally means  a human being or a living individual unit and  not  an  artificial  person.  The  word  has  to  be  understood in a broad common-sense manner  and, therefore, not a naked or nude body of a  human being but the manner in which a normal  human  being  will  move  about  in  a  civilised  society.  Therefore,  the  most  appropriate   meaning  of  the  word  “person”  appears  to  be  — “the body of a human being as presented to   public  view  usually  with  its  appropriate   coverings  and  clothing”.  In  a  civilised  society   appropriate  coverings  and  clothings  are   considered  absolutely  essential  and  no  sane   human  being  comes  in  the  gaze  of  others  without  appropriate  coverings  and  clothings.   The appropriate coverings will include footwear   also as normally it  is  considered an essential   article  to be worn  while  moving outside  one’s  home. Such appropriate  coverings or  clothings  or footwear, after being worn, move along with   the  human  body  without  any  appreciable  or  extra  effort.  Once  worn,  they  would  not  normally  get  detached  from  the  body  of  the  human being unless some specific effort in that   direction is made. For interpreting the provision,   rare cases of some religious monks and sages,   who,  according  to the  tenets  of  their  religious  belief do not cover their body with clothings, are   not to be taken notice  of. Therefore, the word   “person”  would  mean  a  human  being  with   appropriate  coverings  and  clothings  and  also  footwear.

11. A  bag,  briefcase  or  any  such  article  or   container, etc. can, under no circumstances, be  treated  as  body of  a  human  being.  They are  

15

given a separate name and are identifiable as   such. They cannot even remotely be treated to  be  part  of  the  body  of  a  human  being.  Depending  upon  the  physical  capacity  of  a  person, he may carry any number of items like  a  bag,  a  briefcase,  a  suitcase,  a  tin  box,  a   thaila, a jhola, a gathri, a holdall, a carton, etc.   of varying size, dimension or weight. However,   while carrying or moving along with them, some  extra effort or energy would be required. They  would have to be carried either by the hand or   hung on the shoulder or back or placed on the   head. In common parlance it would be said that   a  person  is  carrying  a  particular  article,   specifying the manner in which it was carried  like  hand,  shoulder,  back  or  head,  etc.   Therefore,  it  is  not  possible  to  include  these  articles within  the ambit of  the word “person”  occurring in Section 50 of the Act.”

It has come in evidence that although the body search of the  

appellant was conducted but no recovery of any narcotic was  

made. The body search only led to the recovery of Rs.25/-from  

his pocket.  

13. Mr.  Ujjal  Singh  then  submitted  that  the  consent  

statement  made  by  the  appellant  is  inadmissible  under  

Section 25 of the Indian Evidence Act, 1872. We are unable to  

accept this submission. The consent statement signed by the  

appellant has not been used as a confession, therefore, the bar  

16

under  Section  25  would  not  be  applicable.  A  statement  in  

order to be treated as a confession must either admit in terms  

of an offence, or at any rate substantially all the facts which  

constitute the offence. No confession has been made in this  

case through the consent given by the appellant with regard to  

any  of  the  ingredients  of  the  offence  with  which  he  was  

subsequently charged.

14. Mr. Ujjal Singh then submitted that there was a delay of  

twelve  days  in  sending  the  sample  of  narcotic  for  chemical  

examination. This submission, in our opinion, is without any  

factual  basis.  The trial  court  as well  as the High Court,  on  

examination of the entire material, concluded that there was  

sufficient independent evidence produced by the prosecution  

regarding the completion of link evidence. Therefore, the delay  

in  sending  the  sample  parcel  to  the  office  of  Chemical  

Examiner pales into insignificance. We are of the considered  

opinion that mere delay in sending the sample of the narcotic  

to the office of the Chemical Examiner would not be sufficient  

to conclude that the sample has been tampered with. There is  

17

sufficient  evidence  to  indicate  that  the  delay,  if  any,  was  

wholly unintentional. This Court had occasion to deal with a  

similar issue, in the case of Balbir Kaur Vs. State of Punjab5.  

The Court made the following observations:

“As far as delay in sending the samples is   concerned,  we  find  the  said  contention   untenable in law. Reference in this regard  may be made to the decision of this Court  in Hardip Singh case6 wherein there was   a  gap  of  40  days  between  seizure  and  sending  the  sample  to  the  chemical   examiner. Despite the said fact the Court  held that in view of cogent evidence that   opium was seized from the appellant and  the seals put on the sample were intact till   it  was  handed  over  to  the  chemical   examiner,  delay itself  is  not  fatal  to  the  prosecution case.”

The trial court as well as the High Court, on examination of  

the evidence on record, concluded that the case property was  

handed over  by Ram Pal  (PW4),  Investigating  Officer  to  the  

SHO Inspector Rachhpal Singh (PW3). This witness checked  

the case property and affixed his own seal bearing impression  

‘RS’ on the case property as also on the sample impression of  

the  seal.  The  case  property  was  deposited  with  MHC Sudh  

Singh on the same day. Sudh Singh appeared as PW1 in court  

5 (2009) 15 SCC 795

18

and tendered his affidavit Ex. PA to the effect that the case  

property  including  the  sample  parcel  and  the  specimen  

impression of the seal, duly sealed and intact was deposited  

with him by Ram Pal, PW4, on 23rd September, 1994. He also  

stated that he handed over the sample parcel, duly sealed and  

sample  impression  of  seal  to  Constable  Chet  Ram  

on 4th October, 1994 for depositing the same in the office of  

Chemical  Examiner.  It  was  further  stated  that  none  had  

tampered with the aforesaid case property and the seal which  

remained  in  his  custody.  He  ultimately  deposited  the  case  

property in the office of Chemical Examiner on the same day  

and  tendered  receipt.  This  apart,  there  is  a  report  of  the  

Chemical  Examiner  (Ex.  PJ)  which  indicates  that  the  seals  

were intact when the sample was received and tallied with the  

sample impression of the seal. It is note worthy that such a  

report of the Chemical Examiner would be admissible under  

Section  293  of  the  Cr.P.C.  Considering  the  aforesaid  clear  

evidence, it cannot be said that there is any infirmity in the  

link evidence merely because there was a delay of few days in  

sending the sample to the office of the Chemical Examiner.  

19

15. Having considered the entire material on the record, the  

trial court as well as the High Court have concurrently found  

the appellant guilty. We are unable to find any perversity or  

any miscarriage of justice in the findings so recorded. Finding  

no merit, we dismiss the appeal.  

……………………………..J. [B.Sudershan Reddy]

……………………………..J. [Surinder  Singh  Nijjar]

New Delhi; February 11, 2011.          

20

21