Page 1

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1953 OF  2009 STATE OF HARYANA       … Appellant

:Versus: ASHA DEVI AND ANR.              … Respondents

J U D G M E N T

Pinaki Chandra Ghose, J.

1. This appeal has been filed by the State of Haryana

against the judgment and order dated 10.12.2007 of the

High  Court  of  Punjab  and  Haryana  at  Chandigarh  in

Criminal Misc. No.560-MA of 2007, whereby the High Court

has  declined  to  grant  leave  to  the  State  to  appeal

against the acquittal of the respondents.

2. The facts of this case, as per the prosecution story,

are that on 3.2.2006, when Sub Inspector Ram Phal, ASI

Rishi  Raj,  Constable  Surender  Singh,  Lady  Constables

Babita Rani and Promila, were on patrol duty in a police

vehicle  which  was  being  driven  by  Constable  Darshan

Singh, near Chimni Bai Dharamshala, NIT No.3, SI Ram Phal

received a secret information that Om Prakash son of Moti

Lal, and his wife Asha Devi, residents of Gali No.1,

Page 2

Jhuggi Kalyanpuri, bring Ganja (intoxicated drug) from

Madhya Pradesh and supply in Faridabad and if a raid is

conducted at their house, Ganja in heavy quantity would

be  recovered.  On  receiving  this  information,  the

aforesaid police team raided the house of Om Prakash. On

seeing the police party, Om Prakash managed to escape by

scaling over the wall of the house. Asha Devi also tried

to escape but she was apprehended with the help of Lady

Constables. On query she disclosed her name as Asha wife

of Om Prakash and also disclosed that the man who had

escaped  from  the  house  was  Om  Prakash.  A  notice  in

writing  under  Section  50  of  the  Narcotic  Drugs  and

Psychotropic Substances Act, 1985 (“NDPS Act”, for short)

was served on her informing her of the right to either

allow the Sub Inspector to take search of her house or

opt for the search in presence of some Gazetted Officer

or a Magistrate. Asha Devi consented for search of her

house  in  the  presence  of  some  Gazetted  Officer.

Accordingly,  Shri  Maharaj  Singh,  the  then  Deputy

Superintendent  of  Police,  NIT,  Faridabad,  reached  the

spot  and  in  his  presence  the  house  of  Asha  Devi  was

searched.  Asha  Devi  unpacked  a  box,  took  out  a  bag

containing  Ganja  and  produced  it  before  the  Sub

Page 3

Inspector. The bag was weighed and found to be contained

11 Kgs. of Ganja out of which two samples of 200 gms.

each were taken and sealed with letters “RP” and “MS” on

the seal. Both the samples along with the residue and the

specimen seal impressions were taken into possession by

the police under the recovery memo which was prepared by

I.O.  Ramphal  and  witnessed  by  ASI  Tej  Ram  and  ASI

Rishiraj and attested by DSP Maharaj Singh and thumb mark

of Asha Devi. The case property along with the samples

and the witnesses were produced before the Station House

Officer, who after verifying the facts affixed his seal

thereon  and  were  deposited  in  the  Moharrer  Police

Malkhana. A case was registered against accused Asha Devi

under  Section  20(61)  of  the  NDPS  Act  and  she  was

arrested.  Thereafter,  on  04.02.2006  case  property  and

both samples were produced before the learned Judicial

Magistrate,  1st Class,  Faridabad.  The  learned  judicial

Magistrate broke the seals on the case property as well

one  of  the  samples.  The  learned  Judicial  Magistrate

verified  the  material,  photographs  were  taken  and

contraband  was  weighed;  thereafter  the  sample  was

resealed with the seal of RP. The Judicial Magistrate

directed  the  Investigation  Officer  to  deposit  the

Page 4

material  to  Judicial  Malkhana.  After  investigation,

accused Asha Devi was charged under Section 20 of the

NDPS  Act  and  accused  Om  Prakash  was  charged  under

Sections 28 & 29 of the NDPS Act. The accused pleaded not

guilty and hence the case was committed for trial.  

3. The Trial Court examined ten prosecution witnesses

and  two  defence  witnesses.  After  going  through  the

prosecution  evidence  and  after  hearing  the  learned

counsel for the parties, the Trial Court did not find

favour with the prosecution version as according to it,

on receiving the secret information, Sub Inspector did

not join any independent witness during the investigation

of the case despite the fact that they were available at

the  spot.  It  further  found  that  the  seal  “RP”  was

entrusted to ASI Rishiraj after sealing the case property

and samples on 3.2.2006; so, I.O. Ramphal could not have

possessed that seal the next day when the case property

was  produced  before  the  learned  judicial  magistrate.

However, the learned judicial magistrate has testified to

the  fact  that  sample  was  resealed  after  verification,

photograph  and  weighment  with  the  seal  of  “RP”.  The

learned  Trial  Court  found  it  irreconcilable  that  seal

Page 5

“RP” could have been available with the learned Judicial

Magistrate when ASI Rishiraj is not there. Further, the

Trial  Court  found  non  production  of  ASI  Rishiraj  as

prosecution witness creates more suspicion. Also, ASI Tej

Raj (PW-2) had chased the accused Om Prakash when he was

trying to run away but he was unable to apprehend him.

This part of the story was also not believed by the Trial

Court for the reason that five constables were standing

outside the house of Om Prakash and it was not possible

for Om Prakash to have scaled the wall of the house. The

Trial  Court  found  the  evidence  of  the  prosecution  as

completely inconsistent and untrustworthy and held that

the prosecution has failed to prove its charges against

the accused beyond all shadows of reasonable doubt and

accordingly,  acquitted  the  accused  of  the  charges

levelled against them.  

4. The State moved an application before the High Court

of Punjab and Haryana at Chandigarh, seeking leave to

appeal against the order of acquittal passed by the Trial

Court. The High Court vide its judgment and order dated

10.12.2007,  declined  to  grant  leave  to  the  State  to

appeal  against  the  acquittal  of  the  respondents  and

Page 6

dismissed the application filed by the State. The State

of Haryana has, thus, impugned the judgment of the High

Court before us.  

5. We have heard the learned counsel appearing for the

State of Haryana as also the learned counsel appearing

for the accused respondents.             

6. The High Court was of the view that the Trial Court

after going through the prosecution evidence and hearing

the learned counsel for the parties, rightly acquitted

the  accused  as  it  did  not  find  favour  with  the

prosecution version and so far as the search conducted in

the presence of the Gazetted Officer is concerned, the

same was nothing but a casual approach adopted by the

Gazetted  Officer  while  effecting  the  recovery  of  the

contraband (Ganja) and the Investigation Officer did not

offer  any  plausible  explanation.  ASI  Rishi  Raj  was

present  with  the  seal  which  was  used  at  the  time  of

effecting the recovery, no explanation was offered by the

prosecution as to how the seal continued to remain in

possession of the ASI Rishi Raj from the date of seizure.

The only presumption which the Trial Court drew is that

the  possibility  of  sample  being  tampered  with  is  not

Page 7

ruled out. The High Court was of the view that it is not

a fit case where leave to appeal is made out in favour of

the State of Haryana and, therefore, declined the same.  

7. We find that the High Court and Trial Court both

relied on three main points to decide the matter against

the State - (i) no independent witness; (ii) Om Prakash

could not have fled in presence of five police officers;

and (iii) the link evidence of the possession of seal

“RP” transferring from ASI Rishiraj to I.O. Ramphal is

not proved. The assessment of evidence and consideration

of the matter as regards these three points by both the

Courts, in our view, is erroneous and cannot be termed as

a possible view.

8. We find that both the DSP Maharaj Singh as well as

I.O.  Ramphal  have  deposed  that  public  persons  were

available when the contraband was seized; however, none

of the public person acceded to their request of joining

the investigation as an independent witness. The Courts

below have found it unbelievable but no reason for same

is rendered. In our opinion, the consistent statement of

both the DSP as well as I.O. rather enhances the veracity

of the circumstances as put forth by them. With respect

Page 8

to the finding of the Courts below that Om Prakash could

not have fled away after scaling the wall and the police

constables would have failed to catch hold of him; we

find the Courts below have proceeded on assumption and

conjecture. There is nothing in the evidence which could

show that Om Prakash could not have run away. There are

positive statements by several prosecution witnesses that

he  ran  away  on  seeing  the  police  party  and  these

statements have withstood the test of cross examination

as well. Further, no other evidence was led to disprove

the fact of running away of accused Om Prakash. So, we

are of the view that the High Court and the Trial Court

were not correct in arriving at the said finding.

9. There  has  been  a  controversy  with  respect  to

possession of seal. The controversy is that I.O. Ramphal

had given the seal “RP” to ASI Rishiraj on 03.02.2006

after  sealing  the  contraband  and  samples  thereof.

However, the next day when the case property was produced

before  the  learned  Judicial  Magistrate,  after

verification it was resealed again with “RP”. The Courts

below found the case of prosecution as doubtful inasmuch

as  that  when  the  seal  “RP”  was  in  possession  of  ASI

Page 9

Rishiraj, how could it have been with I.O. Ramphal the

next day. We find, the more important evidence was with

respect to the sample which was sealed with “RP”. There

is clear evidence that initially the samples were taken

and sealed with “RP” and “MS” on 03.02.2006 at the place

of seizure and thereafter, on same day, SHO Vikram Singh

also  sealed  the  said  samples  with  “SS”.  There  is

uncontroverted evidence to the fact that the samples were

produced before the learned Judicial Magistrate, where

seal of one sample was broken and resealed with “RP”.

Thereafter, the sample was deposited in Judicial Malkhana

from where it was sent to the FSL. The FSL report notes

that the seal was intact and the sample was un-tampered.  

10. All the persons who possessed the contraband sample

have been brought on record to support that no tampering

was done with the samples. The Defence failed to bring

out anything in the cross-examination of the witnesses

with respect to tampering of the samples. Thus, we find

that the samples were properly dealt with throughout and

the  same  was  found  to  be  Ganja.  Going  further,  with

respect to the seal that was handed over to ASI Rishiraj,

the Defence failed to cross-examine the I.O. Ramphal as

Page 10

to  how  did  he  got  possession  of  seal  back  from  ASI

Rishiraj. Under these circumstances, we do not believe

that  the  prosecution  was  duty  bound  to  explain  the

movement of the seal from one person to another in the

given circumstances. Since, the movement of sample has

been proved and found to be regular, the prosecution has

sufficiently proved its case to establish the guilt of

the accused in the present case.

11. We  have  noticed  the  decision  of  this  Court  in

Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5. In the said decision, this Court held as under:-

“10. Even a casual glance at the provisions of the Penal Code will show that the punishments have  been  carefully  graded  corresponding  with the  gravity  of  offences;  in  grave  wrongs  the punishments  prescribed  are  strict  whereas  for minor  offences  leniency  is  shown.  Here  again there is considerable room for manoeuvre because the  choice  of  the  punishment  is  left  to  the discretion  of  the  judge  with  only  the  outer limits stated. There are only a few cases where a minimum punishment is prescribed. The question then is what procedure does the judge follow for determining the punishment to be imposed in each case to fit the crime? The choice has to be made after  following  the  procedure  set  out  in sub-section (2) of Section 235 of the Code. That sub-section reads as under:

If the accused is convicted, the judge shall, unless he proceeds in accordance with the  provisions  of  Section  360,  hear  the

Page 11

accused  on  the  question  of  sentence,  and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy the rule of natural justice. It  is  a  fundamental  requirement  of  fair  play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more  necessary  since  the  courts  are  generally required to make the choice from a wide range of discretion  in  the  matter  of  sentencing.  To assist  the  court  in  determining  the  correct sentence  to  be  imposed  the  legislature introduced sub-section (2) to Section 235. The said  provision  therefore  satisfies  a  dual purpose;  it  satisfies  the  rule  of  natural justice  by  according  to  the  accused  an opportunity of being heard on the question of sentence and at the same time helps the court to choose  the  sentence  to  be  awarded.  Since  the provision  is  intended  to  give  the  accused  an opportunity to place before the court all the relevant  material  having  a  bearing  on  the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. Mr Garg was, therefore, justified in making a grievance that the trial court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt  on 31-3-1987, on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced. In a case of life or death as stated earlier, the presiding officer must show a high decree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this

Page 12

case,  without  giving  the  accused  an  effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating  circumstances,  etc.,  before  the court,  the  court’s  decision  on  the  sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious  consequences  on  the  offender  and  his family  members  than  in  the  case  of  a  purely administrative decision; a fortiori, therefore, the  principle  of  fair  play  must  apply  with greater vigour in the case of the former than the  latter.  An  administrative  decision  having civil  consequences,  if  taken  without  giving  a hearing is generally struck down as violative of the  rule  of  natural  justice.  Likewise  a sentencing decision taken without following the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate  order.  The  sentencing  court  must approach  the  question  seriously  and  must endeavour to see that all the relevant facts and circumstances  bearing  on  the  question  of sentence  are  brought  on  record.  Only  after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general  rule  the  trial  courts  should  after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material  bearing  on  the  question  of  sentence before it and thereafter pronounce the sentence to be imposed on the offender. In the present case, as pointed out earlier, we are afraid that the  learned  trial  Judge  did  not  attach sufficient  importance  to  the  mandatory requirement of sub-section (2) of Section 235 of the Code. The High Court also had before it only the  scanty  material  placed  before  the  learned Sessions  Judge  when  it  confirmed  the  death penalty.”

Page 13

12. Thus, we find the accused respondents guilty under

Section 20 of NDPS Act for possession of 11 Kgs. Ganja.

The commercial quantity of Ganja is 20 Kgs. or more, and

the accused are in possession of small quantity as per

the  Notification  of  the  Central  Government  providing

small and commercial quantities of various contrabands.

In view of this, we convict the accused persons (Asha

Devi and her husband Om Prakash) under Section 20 of the

NDPS Act and sentence them to simple imprisonment for

five years.   

13. Before sentencing, following the principle laid down

in  Allauddin  Mian  (supra),  this  matter  was  adjourned,

giving a chance to the respondents/accused to place facts

before us and further directed the appellant to find out

about the conduct of the respondents after this incident

and to inform this Court.  On the adjourned date, the

learned counsel for the appellant and learned counsel for

the  respondents/accused  expressed  that  the  respondents

thereafter were not found to be implicated in any other

matter. After hearing the learned counsel for the parties

and after giving due weight to the mitigating as well as

the aggravating circumstances placed before us, we think

Page 14

that it would be proper for us to convict the accused

persons with the sentence passed by us, which would serve

the purpose.   

14. Accordingly,  we  set  aside  the  judgment  and  order

passed by the High Court as also by the Trial Court and

direct that the accused/respondents shall be taken into

custody forthwith to undergo the sentence. The appeal is

accordingly allowed.   

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Uday Umesh Lalit)

New Delhi; May 12, 2015.

Page 15

ITEM NO.1B               COURT NO.11               SECTION IIB (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  1953/2009 STATE OF HARYANA                                   Appellant(s)                                 VERSUS ASHA DEVI & ANR.                                   Respondent(s)

Date : 12/05/2015 This appeal was called on for pronouncement of  judgment today.

For Appellant(s) Mr. Rakesh K. Mudgal, AAG Mr. Dinesh Mudgal, Adv.

                 For Mr. Sanjay Kumar Visen, AOR                       For Respondent(s)  Mr. Ravi Kumar Tomar, AOR                         

Hon'ble  Mr.  Justice  Pinaki  Chandra  Ghose  pronounced  the reportable  judgment  of  the  Bench  comprising  His  Lordship  and Hon'ble Mr. Justice Uday Umesh Lalit.  

The  appeal  is  allowed  in  terms  of  the  signed  reportable judgment as follows:

“Accordingly, we set aside the judgment and order passed by  the High Court as also by the Trial Court and direct that the  accused/respondents shall be taken into custody forthwith  to undergo the sentence. The appeal is accordingly allowed.”   

(R.NATARAJAN)        (SNEH LATA SHARMA)  Court Master       Court Master

(Signed reportable judgment is placed on the file)