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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 50  of 2016 (Arising from the SLP(Crl.) No. 2082 of 2015)

Surender @ Kala …. Appellant

Versus

State of Haryana …. Respondent

J U D G M E N T  

Uday U. Lalit, J.

1. Leave granted.

2. This  appeal  is  directed  against  the  judgment  and  order

dated  11.12.2014  passed  by  the  High  Court  of  Punjab  and

Haryana  dismissing  Criminal  Appeal  No.  S-318-SB  of  2004

preferred by the appellant against his conviction under Section

18  of  Narcotic  Drugs  and  Psychotropic  Substances  Act,  1985

(hereinafter referred to as the ‘Act’) for being in possession of 1

kg of opium without any permit or licence.

3. According to the prosecution PW6 SI Satbir  Singh was on

usual patrol duty on 24.06.2002 along with other police officials

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at bus stand of village Bichpar, Distt Sonipat. Secret information

was received by him that the appellant was selling opium and

was  roaming  in  the  village  in  search  of  customers.   This

information was reduced to writing in the form of Ruqa Ext. PF

and was sent to the Police Station for information,  whereupon

DDR Ext. PC was recorded.  PW6 Satbir and other police officials

reached the bus stand and saw the appellant coming from village

Gangana side.  He was apprehended. The appellant was told that

he was suspected to be carrying opium in his possession and as

such his personal search had to be undertaken and that he had a

right to be searched in the presence of a Gazetted Officer or a

Magistrate. The appellant was given an appropriate notice vide

Ext. PA under Section 50 of the Act and by his reply Ext. PA/1 he

opted to be searched before a Gazetted Officer.  

4. Thereafter  a  wireless  message  was  sent  to  PW4  Shyam

Singh Rana, DSP Gohana who reached the spot. The appellant

was produced before him and PW4 was also acquainted with the

facts of the case. Thereafter, on the instructions of PW4, personal

search  of  the  appellant  was  undertaken  which  resulted  in

recovery  of  opium from the  possession  of  the  appellant.  The

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opium was found in a polythene bag tied in a cloth around the

stomach of the appellant. On weighment, it was found to be 1kg

50gms. A sample was taken and put in a small plastic bag while

the remainder was put in a bag of cloth. The sample and the

remainder were separately sealed and taken in possession vide

memo  Ext.  PB.  The  seal  was  then  handed  over  to  PW1  ASI

Bishamber Lal.  Thereafter Ruqa Ext.  PC was sent to the Police

Station  for  registration  of  crime,  whereupon  FIR  Ext.  PC  was

recorded by PW2 Head Constable Om Parkash.

5. The appellant along with the case property was produced

before PW3 Yad Ram SHO of Police Station who verified the fact

and put his own seal bearing impression “YR” on the sample as

well  as on the remainder.  Thereafter the sealed case property

was handed over to the Investigating Officer who deposited the

same with Malkhana. In due course of time the FSL report Ext. PD

was received wherein it was opined that the sample in question

was opium. After completion of investigation the appellant was

charge-sheeted  and  tried  for  having  committed  the  offence

punishable under Section 18 of the Act.

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6. The  prosecution  in  support  of  its  case  examined  six

witnesses. PW1 ASI Bishamber Lal stated as under:-

“As contraband article was suspected with the accused so he was served with a notice Ext. PA to opt about his search before a Gazetted Officer or a Magistrate, which is bearing my signatures. Accused opted for his search before a Gazetted officer vide endorsement Ex.  PA/1 which is bearing my signatures.”

PW2  Head  Constable  Om Parkash  in  his  deposition  stated  as under:-

“On that day ASI  Bishamber Lal deposited the case property with me, which was sealed with seal SS.”

Pw 3 SI Yad Ram in his deposition stated as under:-

“On 24.06. 2002, I was posted SI/HO P.S. Baroda. On that day SI Satbir Singh had produced the accused now present  in  the  court,  two  sealed  parcels  and  the witnesses before me. I  verified the investigation and affixed my own bearing inscription “YR”. I directed SI Satbir  Singh to deposit  the case property with seals intact with the MHC P.S. Baroda.”

PW4 Shyam Singh Rana DSP stated as under:-

“I directed SI Satbir Singh to carry out the search of the accused. During the course of search SI Satbir Singh recovered opium wrapped in a cloth was tied with the stomach of the accused underneath the shirt and the vest of the accused wrapped in a polythene pack. On weighment it was found to be one kilogram. SI Satbir Singh took out 50grams of opium from the recovered bulk and sealed the sample and the remainder into two

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separate  parcels  with  the  sealed  bearing  inscription SS. Both the sealed parcels were taken into possession vide recovery memo EX. PB which was signed by ASI Bishamber Lal and HC Suresh Kumar and was attested by me also.”

7. In  his statement under Section 313 Cr.  P.C.  the appellant

denied the prosecution allegations and pleaded innocence.  After

considering  the  material  on  record  and  rival  submissions,  the

Special  Judge,  Sonipat  found  the  appellant  guilty  of  offence

punishable under Section 18 of the Act and by his judgment and

order  dated  14.11.2004  sentenced  him  to  undergo  rigorous

imprisonment  for  5  years  and  to  pay  fine  of  Rs.  10000/-,  in

default whereof to undergo further rigorous imprisonment for a

period of 8 months.

8.  The judgment of conviction and sentence was challenged

by way of  Criminal  Appeal  of  S-318 –SB  of  2004  in  the  High

Court. After considering the entire material on record, the High

Court by its judgment under appeal affirmed the view taken by

the Trial Court and dismissed the appeal. The correctness of the

view taken by the High Court is under challenge in the present

appeal.

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9. It  was submitted by Mr. Rakesh Dahiya, learned advocate

appearing for the appellant that the investigation in the matter

was  conducted  by  PW6  SI  Satbir  Singh  who  himself  was  the

complainant. Relying on the decision of this court in  State by

Inspector  of  Police,  Narcotic  Intelligence  Bureau,

Madhurai,  Tamil  Nadu  v. Rajangam1,  the  learned  counsel

submitted  that  the  investigation  by  PW6  SI  Satbir  Singh  was

improper and the appellant was entitled to acquittal.

10. We have given anxious consideration to the submissions of

the learned counsel.  In  State v.  Rajangam (supra),  the High

Court had acquitted the accused. Relying upon the decision of

this  court  in  Megha Singh  v. State  of  Haryana2,  the  view

taken by the High Court was affirmed by this Court in an appeal

against acquittal.  In Megha Singh the accused was tried under

the provisions of the TADA Act and the Arms Act  for  being in

possession of a country made pistol  and three live cartridges.

The prosecution did not examine any independent witness and

simply relied upon the testimony of  PW3 Investigating Officer.

There  was  also  discrepancy  in  the  depositions  of  PW3 11. 2010(15) SCC 369

2  1996(11) SCC 709

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Investigating Officer and another police person namely PW2. In

the  light  of  these  facts,   it  was  observed in  Megha Singh as

under:

“After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws.2 and 3 and in the absence of  any  independent  corroboration  such  discrepancy does not inspire confidence about the reliability of the prosecution  case.  We  have  also  noted  another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being conducted  by  him  a  pistol  and  the  cartridges  were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with  the  investigation  of  the  case.  But  it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined  witnesses  under  Section  161  Cr.P.C.  Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.”   

11. In  Megha  Singh,  the  search  was  not  conducted  in  the

presence of a Gazetted Officer, as is required in a case under the

Act.   In  the  instant  case  the  search  of  the  appellant  was

conducted in the presence of and under the instructions of PW4.

The extracts of depositions of other prosecution witnesses show

that it was not PW6 S.I. Satbir Singh alone who was involved in

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the investigation. In our view the principle laid down in  Megha

Singh and  followed  in  State  vs.  Rajangam does  not  get

attracted in the present matter. Relevant to note that this was

not  even  a  ground  projected  in  support  of  the  case  of  the

appellant and does not find any reference in the judgment under

appeal. We therefore reject the submission.  

12. Having gone through the entirety of the matter, we do not

find any reason to differ from the view taken by the High Court.

We therefore dismiss this appeal.  

………………………J. (V. Gopala Gowda)

…………………..……J. (Uday Umesh Lalit)

New Delhi, January 19, 2016

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ITEM NO.1D-For Judgment        COURT NO.10            SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Crl.A.No.50/2016 @ Petition(s) for Special Leave to Appeal (Crl.) No(s).  2082/2015 SURENDER @ KALA                                    Petitioner(s)                                 VERSUS STATE OF HARYANA                                   Respondent(s) Date : 19/01/2016 This appeal was called on for pronouncement of JUDGMENT today. For Petitioner(s)                      Mr. Rakesh Dahiya,Adv.                      For Respondent(s)                      Mr. Sanjay Kumar Visen,Adv.

Hon'ble  Mr.  Justice  Uday  Umesh  Lalit  pronounced the  judgment  of  the  Bench  comprising  Hon'ble  Mr. Justice V. Gopala Gowda and His Lordship.

Leave granted. The  appeal  is  dismissed  in  terms  of  the  signed

reportable judgment.

Pending  application(s),  if  any,stand(s)  disposed

of.

(VINOD KUMAR) COURT MASTER

(MALA KUMARI SHARMA) COURT MASTER

(Signed Reportable Judgment is placed on the file)