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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NOs.     1690-1691     OF     2012   (Arising out of S.L.P. (Crl.) Nos. 9415-9416 of 2011)

Sumit Tomar                        .... Appellant(s)

Versus

The State of Punjab       .... Respondent(s)       

J     U     D     G     M     E     N     T      

P.Sathasivam,J.

1) Leave granted.

2) These appeals are directed against the judgment and  

order dated 31.01.2011 passed by the High Court of Punjab  

and Haryana at Chandigarh in Criminal Appeal No. 2079 SB of  

2009 whereby the High Court dismissed the criminal appeal  

filed by the appellant herein and also of the order dated  

17.05.2011 passed by the High Court in Crl.M. No. 26283 of  

2011 regarding correction of the date in the judgment.

3) Brief facts:

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(i)  According to the prosecution, on 27.06.2004, at about  

5.00 p.m., a special barricading was set up by the police party  

at Basantpur Bus Stand, Patiala.  At that time, the police party  

signaled to stop a silver colour Indica Car bearing No. DL-7CC-

0654 which was coming from the side of Rajpura.   The driver  

of the said car (appellant herein), accompanied with one Vikas  

Kumar (since deceased), who was sitting next to him, instead  

of stopping the car tried to run away, but the police party  

immediately blocked the way and managed to stop the car.  On  

suspicion, the police checked the car and found two plastic  

bags containing ‘bhooki’  opium powder from the dickey of the  

said vehicle.  The contents of both the bags were mixed and  

two samples of 250 gms. each were taken out.  The remaining  

contraband weighing 69.50 kgs. was sealed in two bags and  

the samples were sent to the Forensic Science Laboratory (FSL)  

for examination.  

(ii)  On the same day, i.e., 27.06.2004, a First Information  

Report (FIR) being No. 105 of 2004 was lodged by the police  

against the appellant herein and Vikas Kumar under Sections  

8, 15, 60, and 61 of the Narcotic Drugs & Psychotropic  

Substances, Act, 1985 (in short “the NDPS Act”).

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(iii) On receipt of the report of the Chemical Examiner and  

after completion of all the formalities relating to investigation,  

the case was committed to the Special Court, Patiala and  

numbered as Sessions Case No. 118T/06.09.04/17.11.08.  

During the pendency of the case, Vikas Kumar died.  The  

Special Court, Patiala, by order dated 20.08.2009, convicted  

the appellant herein under Section 15 of the NDPS Act and  

sentenced him to undergo rigorous imprisonment (RI) for 10  

years alongwith a fine of Rs. One lakh, in default, to further  

undergo R.I. for one year.   

(iv) Being aggrieved, the appellant herein filed Criminal  

Appeal No.  2079 SB of 2009 before the High Court of Punjab  

& Haryana.  Learned single Judge of the High Court, by  

impugned order dated 31.01.2011, dismissed the said appeal.  

Questioning the same, the appellant has filed these appeals by  

way of special leave before this Court.

4) Heard Mr. V. Giri, learned senior counsel for the  

appellant and Ms. Noopur Singhal, learned counsel for the  

respondent-State.

5) Mr. V. Giri, learned senior counsel for the appellant  

raised the following contentions:  

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i) one Kaur Singh, an independent witness, was allegedly  

joined by the prosecution but has not been examined.  Though  

the prosecution claimed that the presence of Kaur Singh at the  

spot was natural, since he was not examined, the entire story  

of the prosecution has to be rejected;

ii) in the absence of independent witness, conviction based  

on official witnesses, cannot be sustained; and

iii) inasmuch as after the alleged seizure of contraband in  

two separate bags, there is no need for the officers to mix both  

the samples which was an irregularity and goes against the  

prosecution case.

6) On the other hand, Ms. Noopur Singhal, learned counsel  

for the State submitted that the person who was present at the  

time of seizure was Kaur Singh and, hence, he is a natural  

witness and to show their bona fide, the prosecution  

summoned him for examination, but he failed to appear.  She  

further submitted that mixing of poppy husk found in two bags  

is not an irregularity, on the other hand, according to her, the  

prosecution has proved its case beyond reasonable doubt and  

prayed for confirmation of the order of conviction and  

sentence.

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7) We have carefully considered the rival submissions and  

perused all the relevant materials.

8) As regards the first two contentions raised by learned  

senior counsel for the appellant, it is true that Kaur Singh,  

according to the prosecution, is an independent witness,  

however, he was not examined on the side of the prosecution.  

It is the case of the prosecution that on 27.06.2004 while Kaur  

Singh was just passing through, he met the police party who  

had laid a special nakabandi near Basantpur Bus-stand for  

nabbing the anti-social elements.  In such circumstance, his  

presence cannot be doubted, on the other hand, his presence  

seems to be natural and a perusal of the consent memo, the  

recovery memo and the arrest memo shows that he was  

present at the time when the recovery was effected from the  

accused.  His signatures appended in all these memos show  

that he has witnessed the recovery.  It is true that the  

prosecution could have examined him.  For this, it is the stand  

of the prosecution that in spite of necessary steps taken by  

issuing summons, he did not appear for which the prosecution  

case cannot be thrown out.

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9) In order to substantiate its claim, the prosecution  

examined Shri Lakhwinder Singh, Head Constable as PW-1,  

Shri Devinder Kumar, owner of the car as PW-2, Shri Gurdeep  

Singh, Assistant Sub-inspector of Police as PW-3 and Shri  

Mohan Singh, Head Constable as PW-6.  The Special Court as  

well as the High Court, on going through the evidence of the  

above-mentioned official witnesses and the documents,  

namely, FIR, seizure memo, FSL report etc., accepted the case  

of the prosecution.  Even before us, learned senior counsel for  

the appellant took us through the evidence of the above-

mentioned prosecution witnesses and the connected materials.  

In a case of this nature, it is better if the prosecution examines  

at least one independent witness to corroborate its case.  

However, in the absence of any animosity between the accused  

and the official witnesses, there is nothing wrong in relying on  

their testimonies and accepting the documents placed for  

basing conviction.  After taking into account the entire  

materials relied on by the prosecution, there is no animosity  

established on the part of the official witnesses by the accused  

in defence and we also do not find any infirmity in the  

prosecution case.  It is not in dispute that the present  

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appellant (A-2) was driving the car in question which carried  

the contraband.  PW-2, owner of the car was also examined  

and proved its ownership and deposed that Sumit Tomar  

demanded the said car for personal use.  In view of the above  

discussion, we hold that though it is desirable to examine  

independent witness, however, in the absence of any such  

witness, if the statements of police officers are reliable and  

when there is no animosity established against them by the  

accused, conviction based on their statement cannot be faulted  

with.  On the other hand, the procedure adopted by the  

prosecution is acceptable and permissible, particularly, in  

respect of the offences under the NDPS Act.  Accordingly, we  

reject both the contentions.  

10) The next contention, according to the learned senior  

counsel for the appellant, is that the prosecution has  

committed an irregularity by mixing up the contraband found  

in the bags and taking samples thereafter. We find no  

substance in the said argument.  The present appellant was  

driving the car in which two bags of contraband were loaded.  

He further pointed out that in view of Section 15 (c) of the  

NDPS Act, which prescribes minimum sentence of 10 years  

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and which may extend to 20 years where the contravention  

involves commercial quantity, the mixing of two bags is a grave  

irregularity which affects the interest of the appellant.  We are  

unable to accept the said contention.  It is true that Section 15  

of the NDPS Act speaks about punishment for contravention in  

relation to poppy straw.  As per sub-section (a) where the  

contravention involves small quantity, the rigorous  

imprisonment may extend to six months or with fine which  

may extend to ten thousand rupees or with both whereas  

under sub-section (b) where the contravention involves  

quantity lesser than commercial quantity but greater than  

small quantity, rigorous imprisonment may extend to 10 years  

and with fine which may extend to one lakh rupees.  Sub-

section (c) provides that where the contravention involves  

commercial quantity, the rigorous imprisonment shall not be  

less than 10 years but which may extend to 20 years and shall  

also be liable to fine which shall not be less than one lakh  

rupees but which may extend to two lakh rupees.  Merely  

because different punishments have been prescribed  

depending on the quantity of contraband, we are satisfied that  

by mixing the said two bags, the same has not caused any  

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prejudice to the appellant.  Even after taking two samples of  

250 grams each, the quantity measured comes to 69.50 kgs  

which is more than commercial quantity (small quantity 1000  

gms/commercial quantity 50 kgs. and above).  In view of the  

same, the contention that the police should have taken two  

samples each from the two bags without mixing is liable to be  

rejected.  

11) Taking note of all the materials, the evidence of official  

witnesses, PW-2, owner of the car which was involved in the  

offence, possession of commercial quantity, FSL report which  

shows that the contraband is poppy straw and is a prohibited  

item, we are in entire agreement with the conclusion arrived at  

by the trial Court and affirmed by the High Court.  Further,  

taking note of the fact that the quantity involved is 70 kgs. of  

poppy straw which is more than a commercial quantity, the  

Special Judge rightly imposed minimum sentence and fine in  

terms of Section 15(c) of the NDPS Act.  We are in agreement  

with the said conclusion.  

12)  In the light of the above discussion, we do not find any  

merit in the appeals, consequently, the same are dismissed.      

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

       ………….…………………………J.                     (RANJAN GOGOI)                                   

NEW DELHI; OCTOBER 19, 2012.

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