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Reportable

                                                                           IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 1327 of 2010

Ram Swaroop ... Appellant

Versus

State (Govt. NCT) of Delhi         ...Respondent

J U D G M E N T

Dipak Misra, J.

The appellant  herein  has  been  found guilty  of  the  

offence  under  Section  15  of  the  Narcotic  Drugs  and  

Psychotropic Substances Act,  1985 (for  short “the NDPS  

Act”) and sentenced to undergo rigorous imprisonment for  

a period of ten years and to pay a fine of rupees one lakh  

and,  in  default  of  payment  of  fine,  to  suffer  simple  

imprisonment for two years.

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2. On 22.7.2005, Ritesh Kumar, a Sub-Inspector, while  

patrolling reached at the outer gate of ISBT where  

Constable Balwant Singh met him and both of them  

found  the  accused-appellant  sitting  on  two  white  

coloured bags on the left side of the footpath.  On  

seeing the police party he tried to run away leaving  

the bags which raised a suspicion in the mind of the  

Sub-Inspector and that led to the apprehension and  

interrogation of the accused.  Eventually, on search  

of  the  bags,  it  was  found that  those contained 64  

Kgs.  of  poppy straw powder  packed in  32 bags of  

polythene.  After the search was carried out samples  

were  sealed  and  sent  to  the  Forensic  Science  

Laboratory  for  examination.   The  investigating  

agency on completion of other  formalities  filed the  

charge-sheet before the trial Court.  

3.  The accused pleaded false implication and claimed  

to be tried.   

4. On behalf  of  the prosecution eight  witnesses were  

examined including the Sub-Inspector, Ritesh Kumar,  

and Constable Balwant Singh.  The learned Additional  

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Sessions  Judge,  Delhi  in  Sessions  Case  No.  90  of  

2006, considering the material on record, found the  

accused  guilty  of  the  offence  and  imposed  the  

sentence as has been stated hereinbefore.

5. Ms. Sushmita Lal, learned counsel for the appellant,  

has raised two contentions,  namely,  (i)  though the  

alleged seizure had taken place at a crowded place,  

yet  the  prosecution  chose  not  to  examine  any  

independent  witness  and  in  the  absence  of  

corroboration  from  independent  witnesses  the  

evidence of only police officials should not have been  

given  credence  to  and  (ii)  there  has  been  non-

compliance of Section 50 of the NDPS Act inasmuch  

as  the  accused  was  not  informed  his  right  to  be  

searched  in  presence  of  a  gazetted  officer  or  a  

Magistrate  despite  the  mandatory  nature  of  the  

provision and, therefore, the conviction is vitiated.   

6. Per contra, it is urged by Mr. Rakesh Khanna, learned  

Additional  Solicitor  General  and  Mr.  Vivek  Chib,  

learned advocate appearing for the respondent, state  

that the learned trial Judge as well as the High Court  

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has correctly placed reliance on the testimony of the  

official witnesses and there is no mandatory rule that  

non-examination  of  independent  witnesses  in  all  

circumstances  would  vitiate  the  trial.   It  is  their  

further submission that Section 50 of the NDPS Act is  

not attracted to the case at hand as two bags were  

searched  and  not  the  person  of  the  accused-

appellant.

7. To appreciate the first limb of submission, we have  

carefully scrutinized the evidence brought on record  

and perused the judgment of the High Court and that  

of the trial Court.   It is noticeable that the evidence  

of PW-7, namely, Ritesh Kumar, has been supported  

by Balwant Singh, PW-5, as well as other witnesses.  

It has come in the evidence of Ritesh Kumar that he  

had asked the passerby to be witnesses but none of  

them agreed and left without disclosing their names  

and addresses.  On a careful perusal of their version  

we do not notice anything by which their evidence  

can be treated to be untrustworthy.  On the contrary  

it is absolutely unimpeachable.  We may note here  

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with  profit  there  is  no  absolute  rule  that  police  

officers  cannot  be  cited  as  witnesses  and  their  

depositions should be treated with suspect.  In this  

context we may refer with profit  to the dictum  in  

State of  U.P.  v.  Anil  Singh1, wherein  this  Court  

took note of the fact that generally the public at large  

are reluctant to come forward to depose before the  

court and, therefore, the prosecution case cannot be  

doubted  for  non-examining  the  independent  

witnesses.

8. At this juncture a passage from State, Govt. of NCT  

of Delhi v. Sunil and another2 is apt to quote : -

“21. We feel that it is an archaic notion that  actions  of  the  police  officer  should  be  approached  with  initial  distrust.  We  are  aware  that  such  a  notion  was  lavishly  entertained  during  the  British  period  and  policemen also  knew about it.  Its  hangover  persisted during post-independent years but  it is time now to start placing at least initial  trust on the actions and the documents made  by the police. At any rate, the court cannot  start  with  the  presumption  that  the  police  

1 1988 Supp SCC 686 2 (2001) 1 SCC 652

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records are untrustworthy. As a proposition of  law the presumption should be the other way  around. That official acts of the police have  been regularly performed is a wise principle  of presumption and recognised even by the  legislature. Hence when a police officer gives  evidence in court that a certain article was  recovered  by  him  on  the  strength  of  the  statement made by the accused it is open to  the court to believe the version to be correct  if it is not otherwise shown to be unreliable. It  is for the accused, through cross-examination  of witnesses or through any other materials,  to show that the evidence of the police officer  is  either unreliable or  at least unsafe to be  acted upon in a particular case. If the court  has  any  good  reason  to  suspect  the  truthfulness of such records of the police the  court  could  certainly  take  into  account  the  fact  that  no  other  independent  person  was  present at the time of recovery. But it is not a  legally approvable procedure to presume the  police action as unreliable to start with, nor  to jettison such action merely for the reason  that  police  did  not  collect  signatures  of  independent persons in the documents made  contemporaneous with such actions.”

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9. In  Ramjee Rai and others  v.  State of Bihar3,  it  

has been opined as follows: -

“26. It  is  now  well  settled  that  what  is  necessary for proving the prosecution case is  not the quantity but quality of the evidence.  The court cannot overlook the changes in the  value  system  in  the  society.   When  an  offence  is  committed  in  a  village  owing  to  land dispute, the independent witnesses may  not come forward.”

10. Keeping  in  view  the  aforesaid  authorities,  it  can  

safely be stated that in the case at hand there is no  

reason  to  hold  that  non-examination  of  the  

independent  witnesses  affect  the  prosecution  case  

and, hence, we unhesitatingly repel the submission  

advanced by the learned counsel for the appellant.

11. The  second  limb  of  proponement  of  the  learned  

counsel for the appellant pertains to non-compliance  

of Section 50 of the NDPS Act.  In this context, the  

learned  counsel  has  drawn  inspiration  from  the  

pronouncement  of  the  Constitution  Bench  in  

3 (2006) 13 SCC 229

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Vijaysinh  Chandubha  Jadeja  v.  State  of  

Gujarat4.  The larger Bench after referring to Objects  

and Reasons of the NDPS Act and various provisions,  

namely, Sections 41, 42 and 50 of the said Act, to the  

earlier  Constitution  Bench  decisions  in  State  of  

Punjab v. Baldev5 and Karnail Singh v. State of  

Haryana6, and certain other authorities, eventually,  

opined thus: -

“29. In view of the foregoing discussion, we  are of the firm opinion that the object with  which  the  right  under  Section  50(1)  of  the  NDPS Act, by way of a safeguard, has been  conferred  on  the  suspect  viz.  to  check  the  misuse of power, to avoid harm to innocent  persons  and  to  minimise  the  allegations  of  planting or foisting of false cases by the law  enforcement agencies, it would be imperative  on  the  part  of  the  empowered  officer  to  apprise the person intended to be searched  of his right to be searched before a gazetted  officer or a Magistrate. We have no hesitation  in holding that insofar as the obligation of the  authorised  officer  under  sub-section  (1)  of  Section 50 of the NDPS Act is concerned, it is  

4 (2011) 1 SCC 609 5 (1999) 6 SCC 172 6 (2009) 8 SCC 539

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mandatory  and  requires  strict  compliance.  Failure  to  comply  with  the  provision  would  render  the  recovery  of  the  illicit  article  suspect and vitiate the conviction if the same  is recorded only on the basis of the recovery  of  the  illicit  article  from the  person  of  the  accused during such search. Thereafter, the  suspect may or may not choose to exercise  the  right  provided  to  him  under  the  said  provision.”

12. The principle of substantial compliance, as laid down  

in Joseph Fernandez v. State of Goa7 and Prabha  

Shankar  Dubey  v.  State  of  M.P.8,  was  not  

accepted  as  the  ratio  laid  therein  was  not  in  

consonance  with  the  dictum  laid  down  in  Baldev  

Singh’s case  (supra).   Similar  principle  has  been  

reiterated  in  Myla  Venkateswarlu  v.  State  of  

Andhra Pradesh9 and  Ashok Kumar Sharma  v.  

State of Rajasthan10.

13. We have referred to the aforesaid decisions as the  

learned  counsel  has  strenuously  urged  that  the  

7 (2000) 1 SCC 707 8 (2004) 2 SCC 56 9 (2012) 5 SCC 226 10 (2013) 2 SCC 67

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provision,  being  mandatory,  there  has  to  be  strict  

compliance.  But,  a  significant  one,  in  the  case  at  

hand 32 bags of  poppy straw powder  weighing 64  

Kgs. had been seized from two bags.  It has not been  

seized from the person of the accused-appellant.  It  

has  been  established  by  adducing  cogent  and  

reliable  evidence  that  the  bags  belonged  to  the  

appellant.  In  Ajmer Singh v.  State of Haryana11  

the appellant was carrying a bag on his shoulder and  

the said bag was searched and contraband articles  

were seized.  While dealing with the applicability of  

Section  50  of  the  NDPS  Act,   two  learned  Judges  

referred to the decisions in  Madan Lal  v. State of  

H.P.12 and  State of H.P.  v.  Pawan Kumar13, and  

came to hold as follows: -

“Thus, applying the interpretation of the word  “search of person” as laid down by this Court  in the decision mentioned above, to facts of  present case, it is clear that the compliance  with  Section  50 of  the  Act  is  not  required.  Therefore,  the  search  conducted  by  the  

11 (2010) 3 SCC 746 12 (2003) 7 SCC 465 13 (2005) 4 SCC 350

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investigating  officer  and  the  evidence  collected  thereby,  is  not  illegal.  Consequently, we do not find any merit in the  contention  of  the  learned  counsel  of  the  appellant as regards the non-compliance with  Section 50 of the Act.”

14. Tested on the bedrock of the aforesaid dictum, the  

contention,  so  assiduously  raised,  that  there  has  

been non-compliance of Section 50 of the NDPS Act is  

wholly sans substance.  

15. In  view  of  the  aforesaid  premised  reasons,  the  

appeal, being devoid of merit, stands dismissed.

…………………………….J.    [Dr. B.S. Chauhan]

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

New Delhi; May 21, 2013.

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