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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1868 OF 2013 (@ SLP (CRL.) No.3407 of 2012)

Gurjant Singh @ Janta …. Appellant

VERSUS

State of Punjab   …. Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Delay condoned.

2. Leave granted.

3. This  appeal  is  directed against  the judgment of  the High  

Court  of  Punjab  and  Haryana  at  Chandigarh  dated  

12.08.2010  in  Criminal  Appeal  No.5-SB  of  2000.  The  

appellant  was  proceeded  against  for  an  offence  under  

Section  15  of  the  Narcotic  Drugs  and  Psychotropic  

Substances Act, 1985 (hereinafter called “the NDPS Act”).  

The  trial  Court  by  its  judgment  dated  30.07.1999,  in  

Sessions  Case  No.39  of  31.05.1996,  found  the  appellant  

guilty  of  the  offence  alleged  against  him  and  while  

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convicting  him  imposed  a  sentence  of  10  years  rigorous  

imprisonment  apart  from a  fine  of  Rs.1,00,000/-  (Rupees  

One Lac only) and in default of payment of fine to undergo  

rigorous imprisonment for one more year.

4. The case of  the prosecution as  projected before the trial  

Court was that on 04.04.1996, S.I. Darbara Singh, who was  

examined  as  P.W.6,  was  posted  as  S.H.O,  Police  Station,  

Sunam. According to him he along with A.S.I. Balbir Singh,  

A.S.I. Massa Singh, H.C. Bhim Sain and other police officers  

were present at ‘T’ point in an area of village Ugrahan in  

connection with Nakabandi. At about 00.15 AM, one tractor  

trolley was seen coming from the side of village Ugrahan.  

The head lights of the tractor trolley were on and P.W.6 gave  

a  signal  from  his  torch  light  and  the  tractor  trolley  was  

stopped by the driver. According to P.W.6, as soon as the  

tractor trolley was stopped, the driver who tried to slip away  

was overpowered by P.W.6 and other police officials.  The  

driver stated to have revealed his name as Gurjant Singh @  

Janta, the appellant herein. Thereafter, when P.W.6 checked  

the trolley of the tractor he found three gunny bags lying  

inside  the  trolley.  P.W.6  informed  the  appellant  that  he  

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intended to search the gunny bags as he suspected some  

incriminating  article  in  the  gunny  bags.  P.W.6  further  

informed the appellant  that,  if  he  so  desired,  the  search  

could be conducted in the presence of a Gazetted officer or  

a  Magistrate.  The appellant  stated to  have expressed his  

consent that the search may be conducted in the presence  

of some Gazetted officer or a Magistrate.

5. After  recording  the  statement  of  the  appellant  and  after  

getting his signature attested by A.S.I Balbir Singh and A.S.I  

Massa  Singh,  P.W.6  claimed  to  have  flashed  a  wireless  

message whereupon Baldev Singh, DSP,  Sunam, who was  

examined as P.W.3, reached the spot. P.W.6 stated to have  

searched the gunny bags lying in the tractor trolley in which  

poppy husk was recovered. P.W.6 claimed to have drawn  

two samples of 250 gms from each of the gunny bag. The  

remaining poppy husk, which weighed to the extent of 34 kg  

in  each  of  the  gunny  bag,  was  stated  to  have  been  

separately sealed, while the six sample parcels were also  

sealed  separately  with  the  impression  ‘DS’.  P.W.6  also  

claimed  to  have  prepared  a  sample  seal  chit  separately.  

Tractor  trolley  and  the  case  properties  were  taken  into  

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possession by P.W.6 through a recovery memo attested by  

P.W.3 as well as by A.S.I Balbir Singh and A.S.I. Massa Singh.  

The appellant was stated to have been arrested, and the  

arrest  memo  along  with   Rukka,  was  sent  to  the  police  

station through C. Harjinder Singh, based on which an FIR  

was recorded by A.S.I  Sukhdev Singh. After preparing the  

rough  site  plan  of  the  place  of  recovery  with  correct  

marginal  notes  and  after  recording  the  statement  of  the  

witnesses on the same day, P.W.6 stated to have deposited  

the case property with the MHC with seals intact along with  

the sample seal.  

6. The final report was thereafter stated to have been filed in  

the  Court.  Before  the  trial  Court  P.W.1  Kulwant  Singh,  

Registration  Clerk,  P.W.2  A.S.I  Balbir  Singh,  P.W.3  D.S.P.  

Baldev  Singh,  P.W.4  Harbans  Singh  C.No.365,  P.W.5  

Jaswinder  Singh  and  P.W.6  S.I.  Darbara  Singh  were  

examined and the report of the Chemical Examiner Ex.PK  

was also filed. When the incriminating circumstances were  

put  to  the  appellant  under  Section  313  Cr.P.C,  appellant  

pleaded false implication alleging that he was taken away  

from his house in the presence of his wife and a false case  

was  planted on  him.  In  defence,  the  appellant  examined  

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H.C. Paramjit Singh as D.W.1 Gurmail Kaur, his wife as D.W.2  

and one other witness C. Avtar Singh as D.W.3.

7. Before  the  trial  Court  it  was  contended on behalf  of  the  

appellant that there was clear violation of Sections 42 and  

50 of  the NDPS Act,  in  as  much  as,  the  search  was not  

conducted  in  the  presence  of  a  Gazetted  officer  or  a  

Magistrate. According to the appellant, he was forcibly taken  

away from his house and a false case was planted and the  

claim that search was made in the presence of P.W.3 was  

not  true.  It  was  also  contended  that  P.W.3  was  not  a  

regularly promoted D.S.P. but was only an Inspector in the  

category  of  Own Rank Pay  (ORP).  It  was  contended that  

since he was only an Inspector and was drawing the pay of  

an Inspector, while acting as D.S.P, he cannot be held to be  

a Gazetted Officer.

8. The trial Court, however, took the view that there was no  

necessity to comply with Section 50 of the NDPS Act and on  

that basis did not go into the question whether P.W.3 was a  

competent Gazetted Officer, in order to validate the search  

stated to have been held in his presence. The trial Court in  

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support of  its  conclusion relied upon the judgment in the  

case  of  State  of  Punjab vs.  Balbir  Singh reported  in  

(1994)  3  SCC  299 and  found  the  appellant  guilty  of  the  

offence alleged against him and convicted him by imposing  

a sentence of 10 years rigorous imprisonment along with the  

fine  of  Rs.1  lac  with  the  default  clause  to  undergo  

imprisonment for one more year. In the appeal preferred by  

the appellant before the High Court, unfortunately, the High  

Court  by  simply  extracting  the  concluding  part  of  the  

judgment of the trial Court chose to confirm the conviction  

and sentence. The appellant has, therefore, come forward  

with this appeal.

9. We heard Mr. S.S. Ray, learned counsel for the appellant as  

well  as  Mr.  Sanchar  Anand,  learned  Additional  Advocate  

General  for  the  respondent.  The  learned  counsel  for  the  

appellant mainly contended that there was non-compliance  

of Section 50 in the matter of search alleged to have been  

made on the appellant and the tractor; that the contention  

of the appellant about the status of P.W.3 that he was not a  

Gazetted officer on the date of the alleged search was not  

considered  by  the  Courts  below  and  that  none  of  the  

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defence  witnesses  were  properly  appreciated by  the  trial  

Court  as well  as by the High Court.  The learned counsel,  

therefore,  contended  that  the  conviction  and  sentence  

imposed on the appellant cannot be sustained.

10. Reliance was placed upon the decisions in State of Punjab  

vs.  Baldev Singh reported in (1999) 6 SCC 172,  State of  

H.P. vs.  Pawan Kumar reported in (2005) 4 SCC 350 in  

support of his submissions.

11. Learned  Additional  Advocate  General  in  his  submissions  

contended that there was no illegality in the judgment of the  

trial Court in convicting the appellant and the imposition of  

sentence  and,  therefore,  the  High  Court  was  justified  in  

confirming the same. Learned Additional Advocate General  

contended that the reliance placed upon the decision of this  

Court by the trial Court, namely, the one in  Balbir Singh  

(supra) was well justified. The learned Additional Advocate  

General, therefore, contended that the judgment impugned  

does not call for interference.

12. Having  considered  the  respective  submissions  and  also  

having bestowed our serious consideration to the judgment  

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of the trial Court, as well as that of the High Court, at the  

very outset we wish to state that the reliance placed upon  

by  the  trial  Court  in  Balbir  Singh (supra)  was  totally  

inappropriate to the facts of this case and consequently the  

ratiocination of the trial Court in having held that Sections  

42 and 50 were not attracted to the case on hand was not  

correct.  

13. When we refer to the decision of this Court in Balbir Singh  

(supra), what has been held therein as a broad principle in  

paragraph 25(1), is  as under:

“25. The questions considered above arise frequently  before the trial courts. Therefore we find it necessary  to set out our conclusions which are as follows: (1) If a police officer without any prior information as  contemplated  under  the  provisions  of  the  NDPS  Act  makes  a  search  or  arrests  a  person  in  the  normal  course of  investigation into  an offence or  suspected  offences as provided under the provisions of CrPC and  when such search is completed at that stage Section  50 of  the NDPS Act  would not be attracted and the  question  of  complying  with  the  requirements  thereunder would not arise. If  during such search or  arrest there is a chance recovery of any narcotic drug  or psychotropic substance then the police officer, who  is  not  empowered,  should  inform  the  empowered  officer  who should thereafter  proceed in  accordance  with the provisions of the NDPS Act. If he happens to  be an empowered officer  also,  then from that stage  onwards,  he  should  carry  out  the  investigation  in  accordance with the other provisions of the NDPS Act.”

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14. The  said  principle  clearly  postulates  a  situation  where  a  

police  officer  in  the normal  course  of  investigation  of  an  

offence  or  suspected  offences  as  provided  under  the  

provisions of Cr.P.C. and in the course of such investigation  

when a search is completed and in that process happens to  

stumble upon possession of a narcotic drug or psychotropic  

substance,  the question of  invoking Section 50 would not  

arise.  When that  principle  is  examined  carefully  one  can  

easily understand that without any prior information as to  

possession of any narcotic drug and psychotropic substance,  

a police officer might have held a search in the course of  

discharge of his duties as contemplated under the provisions  

of Cr.P.C and, therefore, it would well neigh impossible to  

state that even under such a situation, the application of  

Section 50 would get attracted. In fact, if we examine the  

facts  involved  in  Balbir  Singh  (supra),  as  per  the  

contention of learned counsel for the State, in that decision  

the police officer effected the arrest, search and seizure on  

reasonable  suspicion  that  a  cognizable  offence  was  

committed and not based on any prior information that any  

offence  punishable  under  NDPS  Act  was  committed  and,  

therefore, it was argued that complying with the provisions  

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of the NDPS Act at the time of the said arrest, search and  

seizure did not arise in as much as such arrest, search and  

seizure was substantially in accordance with the provisions  

of the Cr.P.C. It was, therefore, contended that such arrest,  

search  and  seizure  cannot  be  declared  as  illegal.  While  

examining the contention in the said background, principle  

no.1 in paragraph 25 came to be rendered.

15. However, while analyzing the importance of Section 50 of  

the NDPS Act in that very decision, this Court has held as  

under in paragraph 20:

“20. In  Miranda v.  Arizona the Court, considering the  question whether the accused be apprised of his right  not to answer and keep silent while being interrogated  by the police, observed thus:

“At  the outset,  if  a  person in  custody is  to  be  subjected  to  interrogation,  he  must  first  be  informed in clear and unequivocal terms that he  has the right to remain silent. For those unaware  of the privilege, the warning is needed simply to  make  them  aware  of  it  —  the  threshold  requirement for an intelligent decision as to its  exercise.  More important, such a warning is an  absolute prerequisite in overcoming the inherent  pressures of the interrogation atmosphere.”

It was further observed thus: “The warning of the right to remain silent must  be accompanied by the explanation that anything  said can and will be used against the individual in  court.  This warning is needed in order to make  him aware not only of the privilege, but also of  the  consequences  of  foregoing  it.  It  is  only  

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through  an  awareness  of  these  consequences  that  there  can  be  any  assurance  of  real  understanding  and  intelligent  exercise  of  the  privilege.  Moreover,  this  warning  may serve  to  make the individual more acutely aware that he  is faced with a phase of the adversary system —  that he is not in the presence of persons acting  solely in his interest.”

When such is  the importance of  a right given to an  accused person in custody in general, the right by way  of safeguard conferred under Section 50 in the context  is all the more important and valuable. Therefore it is  to be taken as an imperative requirement on the part  of the officer intending to search to inform the person  to be searched of his right that if he so chooses, he will  be searched in the presence of a Gazetted Officer or a  Magistrate.  Thus  the  provisions  of  Section  50  are  mandatory.”

16. If  the  ratio  of  the  said  decision  had  been  properly  

understood, the flaw committed by the trial  Court and as  

confirmed by the High Court in our considered opinion would  

not have arisen. The distinct feature in the case on hand was  

that on the date of occurrence i.e. on 04.04.1996 at 00.15  

AM, the police party headed by P.W.6, accosted a tractor  

trolley coming from the side of village Ugrahan, which was  

stopped by him and that when the driver after stopping the  

tractor tried to escape was apprehended by the police team.  

The most crucial aspect of the case was that P.W.6 noticed  

three gunny bags lying in the tractor of the appellant and  

felt  that  some incriminating  substance  was kept  in  those  

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gunny  bags.  P.W.6,  therefore,  took  the  view  that  before  

effecting  search  of  the  gunny  bags,  the  necessity  of  

affording  an  opportunity  to  the  appellant  to  conduct  the  

search in the presence of a Gazetted officer or a Magistrate  

was imperative. In other words, after noticing three gunny  

bags,  P.W.6,  as  an  investigating  officer,  felt  the  need  to  

invoke the provisions of Section 50 and thereby provide an  

opportunity to the appellant for holding any search in the  

presence of a Gazetted officer or a Magistrate. When once  

P.W.6  could  assimilate  the  said  legal  requirement  as  

stipulated  under  Section  50  of  the  NDPS  Act,  we  fail  to  

understand as to how principle No.1 in paragraph 25 of the  

decision reported in Balbir Singh (supra) could be applied.  

Unfortunately, the trial Court failed to understand the said  

principle  set  out  in  Balbir  Singh (supra)  in  the  proper  

perspective while holding that neither Section 42 nor Section  

50 was attracted to the facts of this case.

17. On  the  other  hand  even  according  to  the  prosecution,  

namely, the investigating officer himself, i.e. P.W.6, a search  

was required after apprehending the appellant along with  

the tractor and the gunny bags and such search had to be  

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necessarily conducted in accordance with Section 50 of the  

NDPS Act. It  was further the case of the prosecution that  

such a step was pursued by calling upon the appellant to  

exercise  his  opinion  and  after  affirmatively  ascertaining  

whether  he  wanted  any  search  to  be  conducted  in  the  

presence  of  the  Gazetted  officer,  only  then  P.W.3  was  

summoned,  in  whose  presence  the  search  operation  was  

held. Therefore, the conclusion of the trial Court in having  

held that Sections 42 and 50 were not applicable to the case  

on hand was a total misunderstanding of the legal provisions  

in the light of the facts placed before it and consequently  

the conclusion arrived at for convicting the appellant was  

wholly unjustified.

18. In fact, after reaching the said conclusion, all that the trial  

Court did was to hold that the version of the prosecution  

witnesses cannot be discarded merely because they were  

police officers and that the evidence of P.W.3 was sufficient  

to  support  the  search  and  recovery  of  the  narcotic  

substance from the appellant. The trial Court also held that  

the  version  of  the  defence  witnesses  was  not  worth  

mentioning.

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19. Unfortunately,  the  High  Court  has  committed  the  same  

errors whilst considering the correctness of the judgment of  

the trial Court. The High Court being the first appellate Court  

was  required  to  independently  reappraise  the  entire  

material,  record  the  conclusions  supported  by  cogent  

reasons. In our opinion, the High Court failed to exercise its  

jurisdiction in dismissing the appeal.  

20. Before concluding, we wish to refer to the decisions placed  

before  us  to  state  the  importance  of  applying  the  

stipulations  contained  in  Section  50,  before  holding  the  

search, in order to ensure fair consideration of the offence  

alleged  against  an  accused  under  the  NDPS  Act,  before  

reaching  any  conclusion  about  the  commission  of  the  

alleged offence.

21. In the Constitution Bench decision of this Court in  Baldev  

Singh (supra), the importance of due compliance of Section  

50 has been mainly set out in paragraphs 28, 32 and 33  

which are as under:

“28……The argument that keeping in view the growing  drug menace, an insistence on compliance with all the  

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safeguards contained in Section 50 may result in more  acquittals  does  not  appeal  to  us.  If  the  empowered  officer fails to comply with the requirements of Section  50  and  an  order  or  acquittal  is  recorded  on  that  ground, the prosecution must thank itself for its lapses.  Indeed in every case the end result is important but  the means to achieve it must remain above board. The  remedy cannot be worse than the disease itself. The  legitimacy of the judicial process may come under a  cloud  if  the  court  is  seen  to  condone  acts  of  lawlessness  conducted  by  the  investigating  agency  during  search  operations  and  may  also  undermine  respect  for  the  law  and  may  have  the  effect  of  unconscionably  compromising  the  administration  of  justice. That cannot be permitted.”

32. However, the question whether the provisions of  Section  50  are  mandatory  or  directory  and,  if  mandatory, to what extent and the consequences of  non-compliance with it does not strictly speaking arise  in  the  context  in  which  the  protection has  been  incorporated in Section 50 for the benefit of the person  intended to be searched. Therefore, without expressing  any opinion as to whether the provisions of Section 50  are mandatory or not, but bearing in mind the purpose  for which the safeguard has been made, we hold that  the provisions of Section 50 of the Act implicitly make  it  imperative  and obligatory and cast  a  duty of  the  investigating  officer  (empowered  officer)  to  ensure  that  search  of  the  person  (suspect)  concerned  is  conducted in the manner prescribed by Section 50, by  intimating to  the  person  concerned  about  the  existence of his right, that if he so requires, he shall be  searched before a gazetted officer or a Magistrate and  in case he so opts, failure to conduct his search before  a  gazetted  officer  or  a  Magistrate  would  cause  prejudice to the accused and render the recovery of  the illicit article suspect and vitiate the conviction and  sentence  of  the  accused,  where  the  conviction  has  been recorded  only on the basis of the possession of  the illicit article, recovered during a search conducted  in violation of the provisions of Section 50 of the Act.  The  omission  may  not  vitiate the  trial  as  such,  but  

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because  of  the  inherent  prejudice  which  would  be  caused to an accused by the omission to be informed  of  the  existence  of  his  right,  it  would  render  his  conviction and sentence unsustainable. The protection  provided in the section to an accused to be intimated  that  he  has  the  right  to  have  his  personal  search  conducted before a gazetted officer or a Magistrate, if  he  so  requires,  is  sacrosanct  and  indefeasible  —  it  cannot be disregarded by the prosecution except at its  own peril.

33. The  question  whether  or  not  the  safeguards  provided  in  Section  50  were  observed  would  have,  however, to be determined by the court on the basis of  the evidence led at the trial  and the finding on that  issue,  one  way  or  the  other,  would  be  relevant  for  recording an order of conviction or acquittal. Without  giving an opportunity to the prosecution to establish at  the  trial  that  the  provisions  of  Section  50  and,  particularly,  the  safeguards  provided  in  that  section  were complied with, it would not be advisable to cut  short a criminal trial.”

22. In  Pawan Kumar (supra) wherein the Constitution Bench  

decision  was  referred  to  and  was  reiterated  as  under  in  

paragraph 26:

“26.……..Otherwise,  there  would  be  no  distinction  between recovery of illicit drugs, etc. seized during a  search  conducted  after  following  the  provisions  of  Section  50 of  the Act  and a  seizure  made during a  search conducted in breach of the provisions of Section  50.  Having regard  to  the scheme and the language  used a very strict view of Section 50 of the Act was  taken and it was held that failure to inform the person  concerned of his right as emanating from sub-section  (1)  of  Section  50  may  render  the  recovery  of  the  contraband suspect and sentence of an accused bad  and unsustainable in law. As a corollary,  there is  no  warrant or justification for giving an extended meaning  

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to the word “person” occurring in the same provision  so as to include even some bag, article or container or  some other baggage being carried by him.”

23. The aforesaid observations of the above Constitution Bench  

decision in Baldev Singh (supra) and the three Judge Bench  

decision  in  Pawan  Kumar (supra),  clearly  highlight  the  

legal  requirement  of  compliance of  Section 50 in  its  true  

spirit. It will have to be stated that such compliance of the  

requirement under Section 50 of  holding of  a search and  

seizure in the presence of Gazetted officer or a Magistrate,  

cannot be an empty formality. In other words, the offer to  

the person to be searched in the presence of a Gazetted  

officer or a Magistrate, should really serve the purpose of  

ensuring that there was every bona fide effort taken by the  

prosecution to bring forth the grave offence of possession of  

narcotic substance and proceed against the person by way  

of  prosecution and thereby establish the truth before the  

appropriate judicial forum. In the same breath such a course  

of compliance of Section 50 would also enable the person  

accused of such a grave offence to be convinced that the  

presence  of  such  an  independent  Gazetted  officer  or  a  

Magistrate would also enable the person proceeded against  

to demonstrate that there was no necessity for holding any  

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search  on  him  and  thereby  persuade  the  concerned  

Gazetted officer  or  Magistrate  to  protect  his  fundamental  

right of freedom, from being unlawfully proceeded against.  

In other words, the purpose of Section 50 was to ensure that  

on the one hand, the holding of a search and seizure was not  

a farce of an exercise in order to falsely implicate a person  

by unscrupulous police authorities, while on the other hand  

to  prevent  an  accused  from  committing  an  offence  of  a  

serious nature against the society,  warranting appropriate  

criminal  proceedings  to  be launched  and in  the  event  of  

establishing  such  offence,  conviction  and  sentence  to  be  

imposed  in  accordance  with  law.  Therefore,  such  a  dual  

requirement of law prescribed under Section 50 cannot be  

dealt with lightly by the Courts dealing with the trial of such  

offences brought before it.

24. Keeping the above principles in mind, when we examine the  

manner in which the trial Court dealt with the case of the  

prosecution as well as the defence pleaded, we find that the  

trial Court committed a serious flaw in holding that Sections  

42 and 50 were not attracted to the case on hand, which we  

have found in the earlier paragraph was a total misreading  

of the provision as well  as the decision relied upon by it.  CRIMINAL APPEAL NO.1868 OF 2013 (@ SLP (CRL.) No.3407 of 2012)           18 of 21

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That  apart,  when  admittedly  Section  50  was  invoked  by  

offering the presence of a Gazetted officer or a Magistrate to  

the appellant and at the request of P.W.6, P.W.3, who was  

stated to be the D.S.P. at that point of time, was summoned  

and in whose presence the search and seizure was stated to  

have been made, the trial Court failed to appreciate whether  

such a search or seizure was really held in accordance with  

Sections 42 and 50 of the NDPS Act.

25. One of the grounds raised on behalf of the appellant was  

that  P.W.3  was  not  holding  the  post  of  D.S.P.  in  a  

substantive manner in order to hold that he was a Gazetted  

officer  on the date of  search.  According to the appellant,  

P.W.3 was not a regularly promoted D.S.P. but was only an  

Inspector functioning as a D.S.P. in a category called ‘Own  

Rank  Pay’  D.S.P.  According  to  the  appellant,  P.W.3  was  

drawing the pay of  an Inspector from I.R.D.  and was not  

holding  the  post  of  D.S.P.  on  a  regular  basis.  It  was,  

therefore, contended that such a person who was not duly  

promoted as D.S.P.,  cannot be equated to the status of a  

Gazetted officer in order to hold that a search conducted in  

his  presence  was  a  valid  search  as  contemplated  under  

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Section 50 of the NDPS Act. As far as the said point raised on  

behalf  of  the appellant, we do not find any material  or a  

counter-stand taken to the effect that P.W.3 was a regularly  

promoted D.S.P. or that as per the rules even as an ‘Own  

Rank Pay’ D.S.P.,he could be equated to any other D.S.P.,  

holding a substantive post. Unfortunately, as stated by us  

earlier, the trial Court having taken a view that Sections 42  

and 50 were not applicable, completely omitted to examine  

the said defence raised on behalf of the appellant. We also  

do  not  find  any  contra  evidence  laid  on  behalf  of  the  

prosecution to counter the said ground raised on behalf of  

the appellant.

26. In such circumstances it will be highly dangerous to simply  

affirm the ultimate conclusion of the trial  Court in having  

convicted the appellant and the sentence imposed based on  

such conviction, as the same was without any ratiocination.  

It  was  most  unfortunate  that  the  High  Court  failed  to  

independently  examine  the  correctness  of  the  findings  

recorded by the trial Court by simply extracting a portion of  

the  judgment  of  the  trial  Court,  while  affirming  the  

conviction.

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27. For all the above stated reasons, the judgment of the trial  

Court and the confirmation of the same by the High Court  

cannot  be  sustained.  The  appeal  stands  allowed.  The  

conviction  and sentence  imposed on the  appellant  is  set  

aside and the appellant shall be set at liberty forthwith, if  

not required in any other case.  

………….……….…………………………..J.                          [Surinder Singh Nijjar]

...……….…….………………………………J.                 [Fakkir  Mohamed Ibrahim  

Kalifulla] New Delhi;  October 28, 2013.

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