KASHMIRI LAL Vs STATE OF HARYANA
Bench: B.S. CHAUHAN,DIPAK MISRA
Case number: Crl.A. No.-001576-001576 / 2009
Diary number: 27443 / 2008
Advocates: RAJEEV SINGH Vs
KAMAL MOHAN GUPTA
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1576 OF 2009
Kashmiri Lal ...Appellant
Versus
State of Haryana ...Respondent
J U D G M E N T
Dipak Misra, J.
This Appeal by Special Leave is directed against the
judgment of conviction and order of sentence dated July
31, 2008 passed by the High Court of Punjab and Haryana
at Chandigarh in Criminal Appeal No. 543-SB of 1996
whereby the learned Single Judge has given the stamp of
approval to the conviction and sentence recoded by the
learned Additional Sessions Judge, Kurukshetra in S.T. No.
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15 of 1993 on 24.7.1996 whereby he, after finding the
accused-appellant guilty of the offence punishable under
Section 18 of the Narcotic Drugs & Psychotropic
Substances Act, 1985 (for brevity ‘the Act’), had
sentenced him to undergo rigorous imprisonment for a
period of ten years and to pay a fine of Rs.1,00,000/- and,
in default of payment of fine, to suffer further rigorous
imprisonment for a period of one year.
2. The factual matrix as has been undraped by the
prosecution is that on 23.12.1992 about 10.00 A.M.,
Kaptan Singh, the Sub-Inspector, along with other
police officials, was present near Deer Park, Pipli, in
connection with excise checking in a Tata Mobile
Vehicle. Receiving a secret and reliable information
to the effect that the accused-appellant would come
to the ‘dhaba’ situated on the G.T. Road, on his
scooter, carrying opium and if a picket was held, he
could be apprehended, he sent a V.T. message to the
Additional Superintendent of Police to reach the
place. Thereafter, Kaptan Singh, along with other
police officials, went to the T-point of Jahajo Wali
Road on G.T. Road and held a picket. In the
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meanwhile, the accused was seen coming on his
scooter, bearing No. DLS-1756 and at that time
Mohmad Akil, Additional S.P., Kurukshetra, along with
his staff arrived at the spot. He was apprised of the
situation and, thereafter, on his instructions search
of the tool box of the scooter was conducted and a
polythene bag containing of 5½ Kg. of opium was
recovered. Ten grams opium was separated as
sample and the remaining opium was put into a
separate container. The sample and the container,
containing the remaining opium, were converted into
parcels duly sealed with seals and taken into
possession vide a separate recovery memo. The
accused was arrested and a ruqa was sent to the
police station on the basis whereof a formal FIR was
registered. After completing the investigation the
charge-sheet was submitted before the competent
court.
3. Before the trial court the accused abjured his guilt,
pleaded false implication and claimed to be tried.
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4. The prosecution to substantiate its case examined
Banarsi Das, Head Constable, PW-1, Dharam Singh,
ASI, PW-2, Mam Chand, Constable, PW-3, Ram Udit,
Head Constable, PW-4, Akil Mohamad, S.P., PW-5 and
Kaptan Singh and the Investigating Officer, PW-6.
The accused in his statement under Section 313 of
the Code of Criminal Procedure stated that he was
employed in the ‘dhaba’, namely, Man Driver Dhaba
at village Teora and he had been apprehended from
the ‘dhaba’ and falsely implicated. In support of his
defence, he examined Karan Singh, DW-1, who had
recorded the statements of PW-1 and PW-3.
5. Before the learned trial Judge, it was contended that
the prosecution had miserably failed to bring home
the charge by resting its case solely on the version of
official witnesses and not examining any independent
witness despite the fact that the accused was
apprehended and alleged contraband articles were
seized while he was in a ‘dhaba’; that there had been
non-compliance of Section 50 of the Act inasmuch as
he was not properly informed about his right to be
searched in presence of a gazetted officer or a
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Magistrate; that the recovery from the tool box of the
scooter would not amount to conscious possession of
the contraband article by the accused; and that the
non-production of the scooter in court falsified the
version of the prosecution. The learned trial Judge
dealt with all the aspects and came to hold that the
search and seizure was valid; that the accused had
not been falsely implicated; and that the non-
production of the scooter did not in any manner
affect the case of the prosecution. Being of this view,
he found the accused guilty and sentenced him as
has been stated hereinbefore.
6. Against the conviction and sentence the accused
preferred an appeal before the High Court. Apart
from raising the contentions which were raised
before the learned trial Judge, a further submission
was put forth that as per the report of the Forensic
Science Laboratory morphine content contained in
the sample was found only to be 1.66% and as the
morphine percentage in the bulk of the opium was
required to be taken into consideration, the alleged
recovery of opium did not fall within the ambit of
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non-commercial quantity and hence, the sentence
should have been imposed regard being had to the
non-commercial quantity and not commercial
quantity. The High Court concurred with the view
expressed by the learned trial Judge and proceeded
to deal with the additional submission and ultimately
held that as the seizure had taken place on
23.12.1992, the amendment which has been brought
into the Act in the year 2001 would not be attracted.
Be it noted, the non-production of the scooter before
the trial court was highlighted with immense
vehemence but the learned Single Judge repelled the
said submission being devoid of any substance and
further directed confiscation of the scooter in
question as envisaged under the provisions
contained in Sections 60(3) and 63 of the Act. The
aforesaid conclusions led to the dismissal of the
appeal.
7. Questioning the legal substantiality of the judgment
of conviction learned counsel for the appellant, has
raised the following contentions: -
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(i) It was incumbent on the part of the prosecution to
examine the independent witnesses when the search
and seizure had taken at a public place, i.e., in a
‘dhaba’ and not to rely exclusively on the official
witnesses to prove the case against the accused.
(ii) There has been non-compliance of Section 50 of the
Act as he had not been informed about his right to be
searched in presence of a gazetted officer or a
Magistrate and that vitiates the conviction.
(iii) The High Court has fallen into serious error by not
treating the seized opium failing within non-
commercial quantity despite the report of the
Forensic Science Laboratory that the morphine
content contained in the sample was 1.66%.
(iv) The non-production of the scooter creates an
incurable dent in the foundation of the case of the
prosecution and the said aspect having not been
appositely dealt with by the learned trial Judge as
well as by the High Court, the judgment of conviction
and order of sentence are liable to be set aside.
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8. Learned counsel for the State, resisting the aforesaid
submissions, has advanced the following
proponements: -
(a) The non-examination of independent witnesses in the
case at hand does not affect the prosecution case, for
there is no absolute rule that the prosecution cannot
establish the charge against the accused by placing
reliance on the official witnesses.
(b) As the contraband goods have been seized from the
tool box of the scooter and not from the person of the
accused, Section 50 of the Act has no applicability.
(c) The morphine content in the seized opium, in the
case at hand, has no relevance to determine the
commercial or non-commercial quantity regard being
had to the fact that the occurrence had taken place in
the year 1992 whereas the amendment was
incorporated in the statute book in 2001.
(d) The non-production of the scooter in the court cannot
be a ground for setting aside the conviction since all the
witnesses have specifically mentioned about the
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registration number of the scooter and there is no
justification to discard their testimony.
9. As far as first submission is concerned, it is evincible
from the evidence on record that the police officials
had requested the people present in the ‘dhaba; to
be witnesses, but they declined to cooperate and, in
fact, did not make themselves available. That apart,
there is no absolute command of law that the police
officers cannot be cited as witnesses and their
testimony should always be treated with suspicion.
Ordinarily, the public at large show their
disinclination to come forward to become witnesses.
If the testimony of the police officer is found to
reliable and trustworthy, the court can definitely act
upon the same. If in the course of scrutinising the
evidence the court finds the evidence of the police
officer as unreliable and untrustworthy, the court
may disbelieve him but it should not do so solely on
the presumption that a witness from the department
of police should be viewed with distrust. This is also
based on the principle of quality of the evidence
weighs over the quantity of evidence. These aspects
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have been highlighted in State of U.P. v. Anil
Singh1, State, Govt. of NCT of Delhi v. Sunil and
another2 and Ramjee Rai and others v. State of
Bihar3. Appreciating the evidence on record on the
unveil of the aforesaid principles, we do not perceive
any acceptable reason to discard the testimony of
the official witnesses which is otherwise reliable and
absolutely trustworthy.
10. The second plank of submission pertains to non-
compliance of Section 50 of the Act. There is no
dispute over the fact that the seizure had taken place
from the tool box of the scooter. There is ample
evidence on record that the scooter belongs to the
appellant. When a vehicle is searched and not the
person of an accused, needless to emphasise,
Section 50 of the Act is not attracted. This has been
so held in Ajmer Singh v. State of Haryana4,
Madan Lal v. State of H.P.5 and State of H.P. v.
Pawan Kumar6. Thus, the aforesaid submission of
1 1988 Supp SCC 686 2 (2001) 1 SCC 652 3 (2006) 13 SCC 229 4 (2010) 3 SCC 746 5 (2003) 7 SCC 465 6 (2005) 4 SCC 350
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the learned counsel for the appellant is without any
substance.
11. The third limb of submission pertains to
determination of commercial and non-commercial
quantity. The learned counsel for the appellant has
commended us to the decision in E. Micheal Raj v.
Intelligence Officer, Narcotic Control Bureau7.
In the said case it has been held as follows: -
“12. As a consequence of the Amending Act, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of ‘commercial quantity’ in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term ‘small quantity’ is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalized sentence structure, the punishment would vary depending upon whether the quantity of offending material is ‘small quantity’, ‘commercial quantity’ or something in- between.”
After so stating, the two learned Judges proceeded to
state that the intention of the legislature for introduction
of the amendment to punish the people who commit less 7 2008 (4) SCALE 592
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serious offence with less severe punishment and those
who commit great crimes, to impose more severe
punishment. Be it noted, in the said case, the narcotic
drug which was found in possession of the appellant as
per the Analyst’s report was 60 gms., which was more
than 5 gms., i.e., small quantity, but less than 250 gms.,
i.e., commercial quantity.
12. In the case at hand, the High Court has opined that
as the opium was seized on 23.12.2992, the
amendment brought in the statute book would have
no applicability. It is also wroth noting that the
appeal was preferred in the year 1996. In Basheer
Alias N.P. Basheer v. State of Kerala8 while
dealing with the constitutional validity of the proviso
to sub-section (1) of Section 41 of the Narcotic Drugs
and Psychotropic Substances (Amendment) Act, 2001
(Act 9 of 2001), this Court upheld the constitutional
validity of the said provision and opined thus: -
“In the result, we are of the view that the proviso to Section 41(1) of the amending Act 9 of 2001 is constitutional and is not hit by Article 14. Consequently, in all cases, in which the trial had concluded and appeals were pending on
8 (2004) 3 SCC 609
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2.10.2001, when amending Act 9 of 2001 came into force, the amendments introduced by the Amending Act 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the NDPS Act, 1985, as it stood before 2.10.2001.”
13. Yet again in Nayak Ramesh Chandra Keshavlal v.
State of Gujarat9 a contention was raised that when
the quantity seized is small one, as enumerated in
notification bearing SO No. 1055 (E) dated
19.10.2001, published in the Gazettee of India
(Extra), Part II, Section 3(ii) dated 19.10.2011, the
punishment should be less. The Court, while
repealing the said submission expressed as follows: -
“Proviso to Section 41 of the amending Act referred to above, lays down that the provisions of the amending Act shall not apply to cases pending in appeal, validity of which was challenged before this Court on the ground that the same, being discriminatory, was violative of Article 14 of the Constitution. But this Court in the case of Basheer upheld the validity of the said provision and, consequently, the provisions of the Amendment Act shall have no application in the present case, as on the date of coming into force of the amending Act, the case of the appellant was pending in appeal before the High Court.”
14. As in the case at hand, the appeal was pending in
1996, the ameliorative provision brought by way of
9 (2004) 11 SCC 399
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amendment in the year 2001 would not be applicable
to the accused-appellant. Therefore, the submission
advanced by the learned counsel for the appellant is
devoid of any substratum and, accordingly, stands
rejected.
15. The last contention urged relates to the non-
production of the scooter in the court. The learned
counsel for the appellant has harped and hammered
on this submission and we must say that the
vehemence of the argument reflected in this regard
is much ado about nothing. All the documents
pertaining to the scooter were seized and the
witnesses had stated in a categorical manner about
the registration number of the scooter. From the
material brought on record, it is crystal clear that the
scooter belonged to the appellant and the search and
seizure was made in the tool box of the scooter.
Under these circumstances, it can safely be
concluded that the submission that the scooter was
not produced in the court is entirely devoid of merit
and, in fact, it amounts to an effort which is like
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building a castle in Spain. Thus, we unhesitatingly
repel the aforesaid contention.
16. Resultantly, the appeal, being devoid of merit, stands
dismissed.
........................................................J. [Dr. B. S. Chauhan]
........................................................J. [Dipak Misra]
New Delhi; May 16, 2013
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