RAM SWAROOP Vs STATE(GOVT.OF NCT) OF DELHI
Case number: Crl.A. No.-001327-001327 / 2010
Diary number: 8740 / 2010
Advocates: SUSMITA LAL Vs
ANIL KATIYAR
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1327 of 2010
Ram Swaroop ... Appellant
Versus
State (Govt. NCT) of Delhi ...Respondent
J U D G M E N T
Dipak Misra, J.
The appellant herein has been found guilty of the
offence under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the NDPS
Act”) and sentenced to undergo rigorous imprisonment for
a period of ten years and to pay a fine of rupees one lakh
and, in default of payment of fine, to suffer simple
imprisonment for two years.
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2. On 22.7.2005, Ritesh Kumar, a Sub-Inspector, while
patrolling reached at the outer gate of ISBT where
Constable Balwant Singh met him and both of them
found the accused-appellant sitting on two white
coloured bags on the left side of the footpath. On
seeing the police party he tried to run away leaving
the bags which raised a suspicion in the mind of the
Sub-Inspector and that led to the apprehension and
interrogation of the accused. Eventually, on search
of the bags, it was found that those contained 64
Kgs. of poppy straw powder packed in 32 bags of
polythene. After the search was carried out samples
were sealed and sent to the Forensic Science
Laboratory for examination. The investigating
agency on completion of other formalities filed the
charge-sheet before the trial Court.
3. The accused pleaded false implication and claimed
to be tried.
4. On behalf of the prosecution eight witnesses were
examined including the Sub-Inspector, Ritesh Kumar,
and Constable Balwant Singh. The learned Additional
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Sessions Judge, Delhi in Sessions Case No. 90 of
2006, considering the material on record, found the
accused guilty of the offence and imposed the
sentence as has been stated hereinbefore.
5. Ms. Sushmita Lal, learned counsel for the appellant,
has raised two contentions, namely, (i) though the
alleged seizure had taken place at a crowded place,
yet the prosecution chose not to examine any
independent witness and in the absence of
corroboration from independent witnesses the
evidence of only police officials should not have been
given credence to and (ii) there has been non-
compliance of Section 50 of the NDPS Act inasmuch
as the accused was not informed his right to be
searched in presence of a gazetted officer or a
Magistrate despite the mandatory nature of the
provision and, therefore, the conviction is vitiated.
6. Per contra, it is urged by Mr. Rakesh Khanna, learned
Additional Solicitor General and Mr. Vivek Chib,
learned advocate appearing for the respondent, state
that the learned trial Judge as well as the High Court
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has correctly placed reliance on the testimony of the
official witnesses and there is no mandatory rule that
non-examination of independent witnesses in all
circumstances would vitiate the trial. It is their
further submission that Section 50 of the NDPS Act is
not attracted to the case at hand as two bags were
searched and not the person of the accused-
appellant.
7. To appreciate the first limb of submission, we have
carefully scrutinized the evidence brought on record
and perused the judgment of the High Court and that
of the trial Court. It is noticeable that the evidence
of PW-7, namely, Ritesh Kumar, has been supported
by Balwant Singh, PW-5, as well as other witnesses.
It has come in the evidence of Ritesh Kumar that he
had asked the passerby to be witnesses but none of
them agreed and left without disclosing their names
and addresses. On a careful perusal of their version
we do not notice anything by which their evidence
can be treated to be untrustworthy. On the contrary
it is absolutely unimpeachable. We may note here
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with profit there is no absolute rule that police
officers cannot be cited as witnesses and their
depositions should be treated with suspect. In this
context we may refer with profit to the dictum in
State of U.P. v. Anil Singh1, wherein this Court
took note of the fact that generally the public at large
are reluctant to come forward to depose before the
court and, therefore, the prosecution case cannot be
doubted for non-examining the independent
witnesses.
8. At this juncture a passage from State, Govt. of NCT
of Delhi v. Sunil and another2 is apt to quote : -
“21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police
1 1988 Supp SCC 686 2 (2001) 1 SCC 652
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records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”
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9. In Ramjee Rai and others v. State of Bihar3, it
has been opined as follows: -
“26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward.”
10. Keeping in view the aforesaid authorities, it can
safely be stated that in the case at hand there is no
reason to hold that non-examination of the
independent witnesses affect the prosecution case
and, hence, we unhesitatingly repel the submission
advanced by the learned counsel for the appellant.
11. The second limb of proponement of the learned
counsel for the appellant pertains to non-compliance
of Section 50 of the NDPS Act. In this context, the
learned counsel has drawn inspiration from the
pronouncement of the Constitution Bench in
3 (2006) 13 SCC 229
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Vijaysinh Chandubha Jadeja v. State of
Gujarat4. The larger Bench after referring to Objects
and Reasons of the NDPS Act and various provisions,
namely, Sections 41, 42 and 50 of the said Act, to the
earlier Constitution Bench decisions in State of
Punjab v. Baldev5 and Karnail Singh v. State of
Haryana6, and certain other authorities, eventually,
opined thus: -
“29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is
4 (2011) 1 SCC 609 5 (1999) 6 SCC 172 6 (2009) 8 SCC 539
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mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.”
12. The principle of substantial compliance, as laid down
in Joseph Fernandez v. State of Goa7 and Prabha
Shankar Dubey v. State of M.P.8, was not
accepted as the ratio laid therein was not in
consonance with the dictum laid down in Baldev
Singh’s case (supra). Similar principle has been
reiterated in Myla Venkateswarlu v. State of
Andhra Pradesh9 and Ashok Kumar Sharma v.
State of Rajasthan10.
13. We have referred to the aforesaid decisions as the
learned counsel has strenuously urged that the
7 (2000) 1 SCC 707 8 (2004) 2 SCC 56 9 (2012) 5 SCC 226 10 (2013) 2 SCC 67
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provision, being mandatory, there has to be strict
compliance. But, a significant one, in the case at
hand 32 bags of poppy straw powder weighing 64
Kgs. had been seized from two bags. It has not been
seized from the person of the accused-appellant. It
has been established by adducing cogent and
reliable evidence that the bags belonged to the
appellant. In Ajmer Singh v. State of Haryana11
the appellant was carrying a bag on his shoulder and
the said bag was searched and contraband articles
were seized. While dealing with the applicability of
Section 50 of the NDPS Act, two learned Judges
referred to the decisions in Madan Lal v. State of
H.P.12 and State of H.P. v. Pawan Kumar13, and
came to hold as follows: -
“Thus, applying the interpretation of the word “search of person” as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the
11 (2010) 3 SCC 746 12 (2003) 7 SCC 465 13 (2005) 4 SCC 350
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investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance with Section 50 of the Act.”
14. Tested on the bedrock of the aforesaid dictum, the
contention, so assiduously raised, that there has
been non-compliance of Section 50 of the NDPS Act is
wholly sans substance.
15. In view of the aforesaid premised reasons, the
appeal, being devoid of merit, stands dismissed.
…………………………….J. [Dr. B.S. Chauhan]
….………………………….J. [Dipak Misra]
New Delhi; May 21, 2013.
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