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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1564 OF 2008

Mohinder                              .... Appellant(s)

Versus

State of Haryana                       ....  Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) This appeal has been filed against the final judgment  

and order  dated 04.07.2007 passed by  the High  Court  of  

Punjab and Haryana at Chandigarh in Criminal  Appeal No.  

72-SB of 1994 whereby the High Court dismissed the appeal  

preferred by the appellant herein and confirmed the order  

dated 05.02.1994 passed by the Court of Additional Sessions  

Judge, Sirsa in Sessions Case No. 11 of 1993 convicting him  

under  Section  18  of  the  Narcotic  Drugs  and  Psychotropic  

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Substances Act, 1985 (in short ‘the Act’) and sentenced him  

to  undergo  rigorous  imprisonment  (RI)  for  a  period  of  10  

years and to pay a fine of Rs. 1 lakh, in default, to further  

undergo RI for a period of two years.   

2) Brief facts:

(a) According to the prosecution, on 23.08.1991 at about  

1.30 p.m., S.I/SHO Dalbir Singh (PW-6), who was then posted  

at P.S. Ellenabad was present at Chowki of Mamera Khurd  

along  with  Head  Constable  Jagdish  Rai  (PW-1)  and  

Constables Pratap Singh and Jang Singh and one Rameshwar  

(PW-3).   The accused-appellant came there and on seeing  

the police party, he sneaked into the field of Narma crop.  He  

was apprehended on suspicion by Dalbir Singh (PW-6).  At  

that time, the appellant was carrying a tin in his hand and on  

suspecting that he was carrying narcotic substance, Dalbir  

Singh (PW-6) sent a V.T. Message to DSP Ram Gobind (PW-5)  

who reached the scene at about 2 p.m. Dalbir Singh (PW-6)  

presented  the  appellant  before  DSP  Ram  Gobind  (PW-5)  

along  with  Exh.  PB  for  conducting  the  search  of  the  tin  

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carried by him in terms of the provisions of Section 50 of the  

Act.  

(b) On search being conducted by DSP Ram Gobind (PW-5),  

3 ½ kgs of opium was found in the tin and out of the same,  

200 gms. was separated from the same as sample and the  

residue contraband were sealed.  An FIR dated 23.08.1991  

came to be registered at Police Station Ellenabad by Dilbag  

Singh (PW-4) at 3.40 p.m. under Section 18 of the Act.  The  

case  property  was  deposited  and  duly  sealed.   Before  

reaching  the  Police  Station,  S.I.  Dalbir  Singh  submitted  a  

report to the DSP Ram Gobind (PW-5) under Section 57 of  

the Act.  

(c) On 28.08.1991, the sample was handed over by Dilbag  

Singh to constable Khazan Singh (PW-2) for being taken to  

FSL,  Madhuban  and  PW-2  delivered  the  said  sample  duly  

intact on 30.08.1991 at the FSL.  A report dated 20.04.1992  

was  received  from FSL,  Madhuban  to  the  effect  that  the  

sample was that of opium.

(d) On  completion  of  the  evidence  and  hearing,  learned  

Addl.  Sessions Judge,  Sirsa,  by judgment  and order  dated  

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05.02.1994 in Sessions Case No. 11 of 1993 convicted the  

appellant and sentenced him to RI for 10 years and imposed  

a  fine  of  Rs.  1  lakh,  in  default  of  payment  of  fine,  shall  

further undergo RI for a period of two years.  

(e) Aggrieved by the conviction and sentence awarded by  

the Addl.  Sessions Judge,  the appellant  preferred Criminal  

Appeal No. 72 (SB) of 1994 before the High Court of Punjab  

and Haryana at Chandigarh.  By impugned judgment dated  

04.07.2007,  the  High  Court  confirmed  the  conviction  and  

sentence as recorded by the trial Court and dismissed the  

appeal.  Hence the present appeal by way of special leave.  

(3) Heard Mr. Shubhashis R. Soren, learned counsel for the  

appellant and Mr. Kamal Mohan Gupta, learned counsel for  

the respondent-State.  

Contentions:

(4) Mr.  Soren,  learned  counsel  for  the  appellant,  after  

taking us through the entire materials mainly contended that  

the entire investigation is defective and not in accordance  

with Section 50 of the Act read with Section 100 of the Code  

of Criminal Procedure, 1973 (in short “the Code”).  He also  

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submitted that there was a delay of 2 days in sending the  

contraband for chemical analysis. He further pointed out that  

there  is  no  evidence  as  to  conscious  possession  of  

contraband.  He also submitted that the appellant being a  

rustic villager, the imposition of sentence of 10 years is on  

the higher side.   

(5) On the other hand, Mr. Gupta, learned counsel for the  

State  submitted  that  there  is  no  violation  of  any  of  the  

statutory provisions.  Even otherwise, according to him, in  

the  absence  of  any  search,  there  is  no  question  of  

compliance  of  Section  50  of  the  Act.   He  also  submitted  

apart from the police officers, one independent witness was  

also examined.  In respect of the allegation relating to delay  

of two days in sending the contraband to the laboratory, it is  

pointed out that in view of the fact that the container was  

duly packed/sealed, the appellant has no way prejudiced and  

nothing  has  been  elicited  from  any  of  the  prosecution  

witnesses.  He further pointed out that in view of Section 54  

of the Act, it is for the appellant to discharge his burden.  

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(6) We have carefully considered the rival contentions and  

perused the relevant materials.  

Discussion:

(7) It is seen that the case of the prosecution is supported  

by the evidence of PWs-1, 5 and 6 apart from the evidence  

produced on record through PWs 2 and 4.  Head Constable  

Jagdish Rai,  (PW-1) and I.O. Dalbir  Singh (PW-6) explained  

the manner in which they had seen the appellant carrying a  

tin, interception and seizure of the tin containing opium.  It is  

also  seen  that  immediately  after  the  message,  within  10  

minutes DSP (PW-5) had reached the scene and 3 ½ kgs of  

opium was recovered from the tin held by the appellant in  

his  hand.   Even  though  the  only  independent  witness  

Rameshwar (PW-3) who stood as a witness for recovery has  

not  supported  the  prosecution  and  declared  hostile,  

however, as rightly pointed out by the state counsel, he did  

not deny the existence of his signature on Ex.PA.  

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(8) We have also perused the evidence of DSP Ram Gobind  

(PW-5)  who  explained  the  recovery  and  drawing  of  the  

sample.  He also made an entry of his visit in the logbook.  

Though, learned counsel for the appellant pointed out that  

the prosecution was not definite where the recoveries and  

writings  were  made either  under  a  tree  or  sitting  on  the  

road, on perusal of the evidence of PWs 1, 5 and 6, we feel  

that the said discrepancies are trivial in nature and there is  

no serious infirmity in the version of PWs 1, 5 and 6.  

(9) Regarding  the  delay  in  sending  the  contraband  for  

examination  by  the  FSL,  it  was  PW-2,  who  carried  the  

samples from the Police Station to FSL at Madhuban but he  

was not asked any question in the cross examination, though  

opportunity was given to the defence.  Even otherwise, FSL  

report Ex. P1 would show that the sample was received at  

the FSL in tact with the seal which tallied with the specimen  

seals forwarded.  Accordingly, the said objection is liable to  

the rejected.  

(10) Even though it is argued that there is discrepancy as to  

the quantity of sample, it is highlighted by the state counsel  

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that sample weighing 200 gms. was drawn by PW-5 himself  

and the weight of the same was found to be approximately  

250 gms. by the FSL.  It is relevant to note that the weight at  

FSL was inclusive of the container and not of the contraband  

alone drawn as a sample.  

(11) Regarding  the  absence  of  evidence  as  to  conscious  

possession,  it  is  brought  to  our  notice  that  search  was  

conducted by DSP leading to recovery of 3 ½ kgs of opium  

from a  tin  retained  by  the  appellant.   Nothing  has  been  

explained  or  denied  by  the  appellant  in  his  Section  313  

statement nor examined anyone as a defence witness.  As  

rightly observed by the High Court, once the appellant was  

asked by the court that he was carrying a tin in his hand and  

opium  was  recovered  therefrom,  the  aspect  of  conscious  

possession  of  the  contraband  is  presumed  and  in  the  

absence  of  any  contra  evidence,  there  is  no  reason  to  

disbelieve the prosecution version.  Further, it is not the case  

of the appellant that incriminating circumstances were not  

put to him under Section 313 of the Code.

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(12) In the light of the materials placed by the prosecution in  

the form of oral and documentary evidence and in view of  

Section 54 of the Act and in the absence of any evidence  

from  the  accused  discharging  the  presumption  as  to  the  

possession of the contraband, we are in entire agreement  

with the conclusion arrived at by the trial Court and the High  

Court.  

(13) As regards the reduction of sentence, it is not in dispute  

that possession of  3 ½ kgs of opium involves commercial  

quantity  and  if  that  is  so,  in  terms  of  sub-section  (b)  of  

Section 18, imprisonment shall  not be less than 10 years.  

Admittedly,  there is no enabling provision to the court for  

reduction of sentence by giving special or adequate reasons  

in  the statute particularly  in  Section 18.   Accordingly,  we  

reject the request of the learned counsel for the appellant.  

(14) In the light of the above discussion, we are in entire  

agreement  with  the  conclusion  arrived  at  by  the  courts  

below.   Consequently,  the  appeal  fails  and  the  same  is  

dismissed.    

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……….…………………………J.                      (P. SATHASIVAM)                               

       ………….…………………………J.                  (M.Y. EQBAL)  

NEW DELHI; APRIL 8, 2013.

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