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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 1576 OF 2009

Kashmiri Lal ...Appellant

Versus

State of Haryana               ...Respondent

J U D G M E N T

Dipak Misra, J.

This Appeal by Special Leave is directed against the  

judgment of conviction and order of sentence dated July  

31, 2008 passed by the High Court of Punjab and Haryana  

at  Chandigarh  in  Criminal  Appeal  No.  543-SB  of  1996  

whereby the learned Single Judge has given the stamp of  

approval to the conviction and sentence recoded by the  

learned Additional Sessions Judge, Kurukshetra in S.T. No.

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15 of  1993 on 24.7.1996 whereby he,  after  finding the  

accused-appellant guilty of the offence punishable under  

Section  18  of  the  Narcotic  Drugs  &  Psychotropic  

Substances  Act,  1985  (for  brevity  ‘the  Act’),  had  

sentenced  him  to  undergo  rigorous  imprisonment  for  a  

period of ten years and to pay a fine of Rs.1,00,000/- and,  

in  default  of  payment  of  fine,  to  suffer  further  rigorous  

imprisonment for a period of one year.

2. The  factual  matrix  as  has  been  undraped  by  the  

prosecution is that on 23.12.1992 about 10.00 A.M.,  

Kaptan  Singh,  the  Sub-Inspector,  along  with  other  

police officials, was present near Deer Park, Pipli, in  

connection  with  excise  checking  in  a  Tata  Mobile  

Vehicle.  Receiving a secret and reliable information  

to the effect that the accused-appellant would come  

to  the  ‘dhaba’  situated  on  the  G.T.  Road,  on  his  

scooter, carrying opium and if a picket was held, he  

could be apprehended, he sent a V.T. message to the  

Additional  Superintendent  of  Police  to  reach  the  

place.   Thereafter,  Kaptan  Singh,  along  with  other  

police  officials,  went  to  the  T-point  of  Jahajo  Wali  

Road  on  G.T.  Road  and  held  a  picket.   In  the  

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meanwhile,  the  accused  was  seen  coming  on  his  

scooter,  bearing  No.  DLS-1756  and  at  that  time  

Mohmad Akil, Additional S.P., Kurukshetra, along with  

his staff arrived at the spot.  He was apprised of the  

situation  and, thereafter, on his instructions search  

of the tool box of the scooter was conducted and a  

polythene bag containing  of  5½ Kg.  of  opium was  

recovered.   Ten  grams  opium  was  separated  as  

sample  and  the  remaining  opium  was  put  into  a  

separate container.  The sample and the container,  

containing the remaining opium, were converted into  

parcels  duly  sealed  with  seals  and  taken  into  

possession  vide  a  separate  recovery  memo.   The  

accused was arrested  and a  ruqa was sent  to  the  

police station on the basis whereof a formal FIR was  

registered.   After  completing  the  investigation  the  

charge-sheet  was  submitted  before  the  competent  

court.

3. Before the trial court the accused abjured his guilt,  

pleaded false implication and claimed to be tried.

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4. The  prosecution  to  substantiate  its  case  examined  

Banarsi Das, Head Constable, PW-1, Dharam Singh,  

ASI, PW-2, Mam Chand, Constable, PW-3, Ram Udit,  

Head Constable, PW-4, Akil Mohamad, S.P., PW-5 and  

Kaptan  Singh  and  the  Investigating  Officer,  PW-6.  

The accused in his statement under Section 313 of  

the Code of Criminal Procedure stated that he was  

employed in the ‘dhaba’, namely, Man Driver Dhaba  

at village Teora and he had been apprehended from  

the ‘dhaba’ and falsely implicated.  In support of his  

defence, he examined Karan Singh, DW-1, who had  

recorded the statements of PW-1 and PW-3.

5. Before the learned trial Judge, it was contended that  

the prosecution had miserably failed to bring home  

the charge by resting its case solely on the version of  

official witnesses and not examining any independent  

witness  despite  the  fact  that  the  accused  was  

apprehended  and  alleged  contraband  articles  were  

seized while he was in a ‘dhaba’; that there had been  

non-compliance of Section 50 of the Act inasmuch as  

he was not properly informed about his right to be  

searched  in  presence  of  a  gazetted  officer  or  a  

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Magistrate; that the recovery from the tool box of the  

scooter would not amount to conscious possession of  

the contraband article by the accused; and that the  

non-production of  the  scooter  in  court  falsified the  

version of the prosecution.  The learned trial Judge  

dealt with all the aspects and came to hold that the  

search and seizure was valid; that the accused had  

not  been  falsely  implicated;  and  that  the  non-

production  of  the  scooter  did  not  in  any  manner  

affect the case of the prosecution. Being of this view,  

he found the accused guilty and sentenced him as  

has been stated hereinbefore.

6. Against  the  conviction  and  sentence  the  accused  

preferred  an  appeal  before  the  High  Court.   Apart  

from  raising  the  contentions  which  were  raised  

before the learned trial Judge, a further submission  

was put forth that as per the report of the Forensic  

Science  Laboratory  morphine  content  contained  in  

the sample was found only to be 1.66% and as the  

morphine percentage in the bulk of the opium was  

required to be taken into consideration, the alleged  

recovery  of  opium did  not  fall  within  the  ambit  of  

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non-commercial  quantity  and  hence,  the  sentence  

should have been imposed regard being had to the  

non-commercial  quantity  and  not  commercial  

quantity.   The High Court  concurred with the view  

expressed by the learned trial Judge and proceeded  

to deal with the additional submission and ultimately  

held  that  as  the  seizure  had  taken  place  on  

23.12.1992, the amendment which has been brought  

into the Act in the year 2001 would not be attracted.  

Be it noted, the non-production of the scooter before  

the  trial  court  was  highlighted  with  immense  

vehemence but the learned Single Judge repelled the  

said submission being devoid of any substance and  

further  directed  confiscation  of  the  scooter  in  

question  as  envisaged  under  the  provisions  

contained in Sections 60(3) and 63 of the Act.  The  

aforesaid  conclusions  led  to  the  dismissal  of  the  

appeal.

7. Questioning the legal substantiality of the judgment  

of conviction learned counsel for the appellant, has  

raised the following contentions: -

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(i) It was incumbent on the part of the prosecution to  

examine the independent witnesses when the search  

and seizure had taken at  a  public  place,  i.e.,  in  a  

‘dhaba’  and  not  to  rely  exclusively  on  the  official  

witnesses to prove the case against the accused.

(ii) There has been non-compliance of Section 50 of the  

Act as he had not been informed about his right to be  

searched  in  presence  of  a  gazetted  officer  or  a  

Magistrate and that vitiates the conviction.

(iii) The High Court has fallen into serious error by not  

treating  the  seized  opium  failing  within  non-

commercial  quantity  despite  the  report  of  the  

Forensic  Science  Laboratory  that  the  morphine  

content contained in the sample was 1.66%.

(iv) The  non-production  of  the  scooter  creates  an  

incurable dent in the foundation of the case of the  

prosecution  and  the  said  aspect  having  not  been  

appositely  dealt  with  by  the  learned trial  Judge as  

well as by the High Court, the judgment of conviction  

and order of sentence are liable to be set aside.

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8. Learned counsel for the State, resisting the aforesaid  

submissions,  has  advanced  the  following  

proponements: -

(a) The non-examination of independent witnesses in the  

case at hand does not affect the prosecution case, for  

there is  no absolute rule that  the prosecution cannot  

establish  the  charge  against  the  accused  by  placing  

reliance on the official witnesses.

(b) As the contraband goods have been seized from the  

tool box of the scooter and not from the person of the  

accused, Section 50 of the Act has no applicability.

(c) The  morphine  content  in  the  seized  opium,  in  the  

case  at  hand,  has  no  relevance  to  determine  the  

commercial  or  non-commercial  quantity  regard  being  

had to the fact that the occurrence had taken place in  

the  year  1992  whereas  the  amendment  was  

incorporated in the statute book in 2001.

(d) The non-production of the scooter in the court cannot  

be a ground for setting aside the conviction since all the  

witnesses  have  specifically  mentioned  about  the  

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registration  number  of  the  scooter  and  there  is  no  

justification to discard their testimony.

9.  As far as first submission is concerned, it is evincible  

from the evidence on record that the police officials  

had requested the people present in the ‘dhaba; to  

be witnesses, but they declined to cooperate and, in  

fact, did not make themselves available.  That apart,  

there is no absolute command of law that the police  

officers  cannot  be  cited  as  witnesses  and  their  

testimony should always be treated with suspicion.  

Ordinarily,  the  public  at  large  show  their  

disinclination to come forward to become witnesses.  

If  the  testimony  of  the  police  officer  is  found  to  

reliable and trustworthy, the court can definitely act  

upon the same.  If in the course of scrutinising the  

evidence the court finds the evidence of the police  

officer  as  unreliable  and  untrustworthy,  the  court  

may disbelieve him but it should not do so solely on  

the presumption that a witness from the department  

of police should be viewed with distrust.  This is also  

based  on  the  principle  of  quality  of  the  evidence  

weighs over the quantity of evidence.  These aspects  

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have  been  highlighted  in  State  of  U.P.  v.  Anil  

Singh1, State, Govt. of NCT of Delhi v. Sunil and  

another2 and Ramjee Rai and others v. State of  

Bihar3.  Appreciating the evidence on record on the  

unveil of the aforesaid principles, we do not perceive  

any acceptable  reason to  discard the testimony of  

the official witnesses which is otherwise reliable and  

absolutely trustworthy.

10. The  second  plank  of  submission  pertains  to  non-

compliance of  Section  50  of  the  Act.   There  is  no  

dispute over the fact that the seizure had taken place  

from the tool  box  of  the  scooter.   There  is  ample  

evidence on record that the scooter belongs to the  

appellant.  When a vehicle is searched and not the  

person  of  an  accused,  needless  to  emphasise,  

Section 50 of the Act is not attracted.  This has been  

so  held  in  Ajmer  Singh  v.  State  of  Haryana4,  

Madan Lal v. State of H.P.5 and State of H.P. v.  

Pawan Kumar6.  Thus, the aforesaid submission of  

1 1988 Supp SCC 686 2 (2001) 1 SCC 652 3 (2006) 13 SCC 229 4 (2010) 3 SCC 746 5 (2003) 7 SCC 465 6 (2005) 4 SCC 350

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the learned counsel for the appellant is without any  

substance.

11. The  third  limb  of  submission  pertains  to  

determination  of  commercial  and  non-commercial  

quantity.  The learned counsel for the appellant has  

commended us to the decision in E. Micheal Raj v.  

Intelligence  Officer,  Narcotic  Control  Bureau7.  

In the said case it has been held as follows: -

“12. As  a  consequence  of  the  Amending  Act,  the  sentence  structure  underwent  a  drastic  change.   The Amending Act  for  the first  time  introduced the concept of ‘commercial quantity’  in  relation  to  narcotic  drugs  or  psychotropic  substances by adding clause (viia) in Section 2,  which defines this term as any quantity greater  than  a  quantity  specified  by  the  Central  Government  by  notification  in  the  Official  Gazette.   Further,  the term ‘small  quantity’  is  defined  in  Section  2,  clause  (xxiiia),  as  any  quantity  lesser  than the  quantity  specified  by  the Central  Government  by notification in  the  Official  Gazette.   Under  the  rationalized  sentence structure, the punishment would vary  depending  upon  whether  the  quantity  of  offending  material  is  ‘small  quantity’,  ‘commercial  quantity’  or  something  in- between.”

After so stating, the two learned Judges proceeded to  

state that the intention of the legislature for introduction  

of the amendment to punish the people who commit less  7 2008 (4) SCALE 592

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serious  offence  with  less  severe  punishment  and  those  

who  commit  great  crimes,  to  impose  more  severe  

punishment.   Be it  noted, in the said case, the narcotic  

drug which was found in possession of the appellant as  

per  the  Analyst’s  report  was  60 gms.,  which was more  

than 5 gms., i.e., small quantity, but less than 250 gms.,  

i.e., commercial quantity.

12. In the case at hand, the High Court has opined that  

as  the  opium  was  seized  on  23.12.2992,  the  

amendment brought in the statute book would have  

no  applicability.   It  is  also  wroth  noting  that  the  

appeal was preferred in the year 1996.  In Basheer  

Alias  N.P.  Basheer  v.  State  of  Kerala8 while  

dealing with the constitutional validity of the proviso  

to sub-section (1) of Section 41 of the Narcotic Drugs  

and Psychotropic Substances (Amendment) Act, 2001  

(Act 9 of 2001), this Court upheld the constitutional  

validity of the said provision and opined thus: -

“In  the  result,  we  are  of  the  view  that  the  proviso to Section 41(1) of the amending Act 9  of 2001 is constitutional and is not hit by Article  14.  Consequently, in all cases, in which the trial  had  concluded  and  appeals  were  pending  on  

8 (2004) 3 SCC 609

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2.10.2001, when amending Act 9 of 2001 came  into force, the amendments introduced by the  Amending Act 9 of 2001 would not be applicable  and  they  would  have  to  be  disposed  of  in  accordance with the NDPS Act, 1985, as it stood  before 2.10.2001.”

13. Yet again in Nayak Ramesh Chandra Keshavlal v.  

State of Gujarat9 a contention was raised that when  

the quantity seized is small  one, as enumerated in  

notification  bearing  SO  No.  1055  (E)  dated  

19.10.2001,  published  in  the  Gazettee  of  India  

(Extra),  Part  II,  Section  3(ii)  dated  19.10.2011,  the  

punishment  should  be  less.   The  Court,  while  

repealing the said submission expressed as follows: -

“Proviso  to  Section  41  of  the  amending  Act  referred to above, lays down that the provisions  of  the amending Act  shall  not  apply  to  cases  pending  in  appeal,  validity  of  which  was  challenged before this Court on the ground that  the same, being discriminatory, was violative of  Article 14 of the Constitution.  But this Court in  the case of  Basheer upheld the validity of the  said provision and, consequently, the provisions  of the Amendment Act shall have no application  in the present case, as on the date of coming  into force of the amending Act, the case of the  appellant was pending in appeal before the High  Court.”

14. As in the case at hand, the appeal was pending in  

1996, the ameliorative provision brought by way of  

9 (2004) 11 SCC 399

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amendment in the year 2001 would not be applicable  

to the accused-appellant.  Therefore, the submission  

advanced by the learned counsel for the appellant is  

devoid  of  any  substratum and,  accordingly,  stands  

rejected.

15. The  last  contention  urged  relates  to  the  non-

production of the scooter in the court.  The learned  

counsel for the appellant has harped and hammered  

on  this  submission  and  we  must  say  that  the  

vehemence of the argument reflected in this regard  

is  much  ado  about  nothing.   All  the  documents  

pertaining  to  the  scooter  were  seized  and  the  

witnesses had stated in a categorical manner about  

the  registration  number  of  the  scooter.   From the  

material brought on record, it is crystal clear that the  

scooter belonged to the appellant and the search and  

seizure  was  made  in  the  tool  box  of  the  scooter.  

Under  these  circumstances,  it  can  safely  be  

concluded that the submission that the scooter was  

not produced in the court is entirely devoid of merit  

and,  in  fact,  it  amounts  to  an  effort  which  is  like  

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building a castle in Spain.  Thus, we unhesitatingly  

repel the aforesaid contention.

16. Resultantly, the appeal, being devoid of merit, stands  

dismissed.

........................................................J.       [Dr. B. S. Chauhan]

........................................................J. [Dipak Misra]

New Delhi; May 16, 2013

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