SUMIT TOMAR Vs STATE OF PUNJAB
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-001690-001691 / 2012
Diary number: 30738 / 2011
Advocates: Vs
KULDIP SINGH
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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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