Crl.Appeal No.512 of 2009                                           1

           REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NO. 512 OF 2009

Surinder Kumar                   ..…Appellant

 versus

State of Punjab             ...Respondent

J U D G M E N T

R.Subhash Reddy,J.

1. This  Criminal  Appeal  is  filed  by  the  sole

accused, aggrieved by the judgment dated 22.04.2008

passed in Criminal Appeal No.706-SB of 1999 passed by

the High Court of Punjab and Haryana at Chandigarh.

2. The  appellant  herein  was  convicted  for  the

offence punishable under Section 18 of Narcotic Drugs

and  Psychotropic  Substances  Act,  1985  (for  short

‘NDPS  Act,  1985’),  vide  the  judgment  dated

20.05.1999, passed by the Special Judge, Ferozepur,

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for offence under Section 18 of NDPS, 1985 and was

sentenced  to  undergo  rigorous  imprisonment  for  a

period  of  10  years  and  to  pay  a  fine  of  Rs.

1,00,000/-(Rupees One Lakh) in default of payment of

the  same,  to  undergo  rigorous  imprisonment  for

another period of one year.

3. The case of the prosecution, in brief, is that

on 12.09.1996, Devi Lal, HC (PW-1), Darbara  Singh,

S.I.(PW-2), along with other police officials were

going from Dalbir Khera towards Waryam Khera, in a

private  jeep, on patrol duty,  and  when  they

reached near the  bridge  of  Canal  minor,  the

appellant-accused was seen coming  from  the  opposite

direction,  carrying  a  bag  in  his  right  hand.  On

seeing the police party, the appellant-accused turned

towards  the  Southern  bank  of  the  canal,  but  was

apprehended  on  suspicion.  The  search  of  the  bag,

carried  by  the  accused,  in  the  presence  of  ASP,

Abohar, who was called to the spot, in accordance

with  the  provisions  of  the  law,  resulted  into

recovery of 1 kg 750 grams of opium. Upon seizure, 2

samples  of  10  grams  each,  were  separated  and  the

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remaining  opium  was  put  into  the  same  bag.  The

samples were duly sealed and taken into possession.

Thereafter, Ruqa was sent to the police station, on

the basis whereof an FIR was registered. The accused

was  arrested  and  after  completion  of  the

investigation, he was challaned.  On  appearance

in  the  court,  the  documents  relied  upon  by  the

prosecution  were  supplied  to  the  accused.  A

charge under Section 18 of the Act was framed against

him,  to  which  he  pleaded  not  guilty  and  claimed

trial.

4. To  prove  the  charge  against  the  appellant  on

behalf  of  the  prosecution,  four  witnesses  were

examined i.e Devi Lal, HC, (PW-1), Darbara Singh, SI,

(PW-2), SI (PW-3), and Sham Lal, Constable (PW-4).

After  closure  of  evidence,  the  statement  of  the

accused under Section 313 of Cr.P.C. was recorded and

he was explained of all incriminating circumstances

appeared against him, in the prosecution evidence. He

pleaded false implication, however, he did not lead

any evidence in his defence. After appreciating the

oral and documentary evidence on record, the learned

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Special Judge, Ferozepur, vide his  judgment  dated

20.05.1999,  in  Sessions  Trial  No.17/1999,  by

recording a finding that prosecution has proved the

guilt of the accused for offence under Section 18 of

the  Act,  in  keeping  in  his  possession  1  kg  750

grams of opium in the area of village  Dalmir  Khera,

convicted the appellant, he was sentenced to rigorous

imprisonment  for  10  years  and  to  pay  a  fine  of

Rs.1,00,000/-  (Rupees  One  Lakh)  in  default,  to

undergo rigorous imprisonment for one year.  

5. Aggrieved by the aforesaid judgment of the Trial

Court,  the  appellant  herein  has  filed  a  criminal

appeal No. 706-SB before High Court of Punjab and

Haryana  at  Chandigarh.  The  High  Court  by  impugned

judgment dated 22.04.2008, dismissed the appeal filed

by the appellant herein and confirmed the judgment

and order of sentence dated 20.05.1999, passed by the

Special Judge, Ferozepur.

6. We have heard Sri Mahabir Singh, learned senior

counsel  appearing  for  the  appellant  assisted  by

Mr.  D.Mahesh  Babu,  advocate-on-record  and

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Ms. Ranjeeta Rohatgi, learned counsel appearing for

the respondent-State.

7. In this appeal, it is mainly contended by learned

senior counsel for the appellant that Sri Joginder

Singh, ASI to whom Yogi Raj, SHO (PW-3) handed over

the case property on 13.09.1996 was not examined thus

link evidence was incomplete, in spite of the same

Trial Court and High Court has committed error in

convicting  the  appellant.  Further  it  is  submitted

that though independent witnesses were there in the

patrolling party, such witnesses were not examined

and  conviction  was  solely  based  on  the  official

witnesses. Further it is submitted that S.K. Asthana,

ASP who is claimed to have joined to the party by

the police, was not even examined and in fact he was

not  there  and  opium  was  not  recovered  in  his

presence.  It  is  also  pleaded  thus  there  is  a

violation of provision under Section 50 of NDPS Act,

1985.

8. Learned  senior  counsel  appearing  for  the

appellant,  to  buttress  his  submissions,  placed

reliance on the following judgments:

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(i) Trimukh Maroti Kirkan v. State of  Maharashtra1.

(ii) Noor Aga v. State of Punjab & Anr2.

(iii) Mohan Lal v. State of Punjab3.

9. On  the  other  hand,  learned  counsel  for  the

respondent-state has submitted that the prosecution

has proved the case by leading cogent evidence, which

proved guilt of the appellant beyond reasonable doubt

and there are no grounds to interfere with the same.

Learned  counsel  has  submitted  that  merely  because

prosecution has not examined any independent witness,

same  would  not  necessarily  lead  to  the  conclusion

that the appellant has been falsely implicated. He

placed  reliance  on  the  judgment  in  the  case  of

Jarnail  Singh  v.  State  of  Punjab4. Further  recent

judgment of this Court in the case of Varinder Kumar

v.  State  of  Himachal  Pradesh5,  is  also  relied  on

wherein this Court has held that all pending criminal

prosecutions, trials and appeals prior to the law led

1 (2006) 10 SCC 681 2 (2008)16 SCC 417 3 (2018)17 SCC 627. 4 (2011)3 SCC 521. 5 (2019) SCC Online SC 170

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down in Mohan Lal3, shall continue to be governed by

the individual facts of the case.  

10. According  to  learned  senior  counsel  for  the

appellant, Joginder Singh, ASI to whom Yogi Raj, SHO

(PW-3) handed over the case property for producing

the  same  before  the  Illaqa Magistrate  and  who

returned the same to him after such production was

not examined, as such, link evidence was  incomplete.

In this regard, it is to be noticed that Yogi Raj

SHO  handed  over  the  case  property  to  Joginder

Singh, ASI, for production before the Court. After

producing  the  case  property  before  the  Court,  he

returned the case property  to  Yogi  Raj,  SHO  (PW-3)

with  the  seals  intact.  It  is  also  to  be  noticed

that Joginder Singh, ASI was not in possession of

seals of either of the investigating officer or of

Yogi Raj, SHO. He produced the  case property  before

the Court on 13.09.1996  vide  application  Ex.P-13,

the  concerned  Judicial  Magistrate  of  First  Class,

after  verifying  the  seals  on  the  case  property,

passed the order Ex.P-14  to  the  effect  that  since

there was no judicial malkhana at Abohar, the case

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property was ordered to be kept in safe custody, in

Police  Station  Khuian  Sarwar  till  further  orders.

Since  Joginder  Singh,  ASI  was  not  in  possession

of the seals of either  of  the  SHO  or  of  the

Investigating  Officer,  the  question  of  tampering

with the case property by him did not arise at all.

11. Further he has returned the case property, after

production of the same, before the Illaqa Magistrate,

with the seals intact, to Yogi Raj, SHO. In that view

of the matter, the Trial Court and the High Court

have rightly held that non-examination of Joginder

Singh,  did  not,  in  any  way,  affect  the  case  of

prosecution.  Further,  it  is  evident  from  the

report of the Chemical Examiner, Ex.P-10, that the

sample was received with seals intact and that the

seals on the sample, tallied with the sample seals.

In that view of the matter, the chain of evidence  was

complete.

12. The next contention of learned senior counsel Sri

Mahabir  Singh  is  that  the  ASP,  who  was

summoned to the spot, in whose presence search and

recovery  was  effected,  was  not  examined.

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As such, it is submitted that the non-examination of

ASP is fatal to the case of prosecution and it is in

violation of Section 50 of NDPS Act, 1985.   

13. It is the specific case of the prosecution that

on 12.09.1996, Darbara Singh, SI, (PW-2) along with

other police officials were going from Dalbir Khera-2

towards Waryam Khera in a private jeep, when they

reached  near  the  bridge  of  Canal  Minor,  the

appellant-accused  was  seen  coming  from  opposite

direction  carrying  a  bag.  It  is  alleged  that  on

seeing  the  police  party,  he  turned  towards  the

Southern bank of the canal but was apprehended on

suspicion. It is specifically pleaded that the ASP,

Abhor who was called at the spot and in his presence

his bag was searched which resulted into recovery of

1 kg 750 grams of opium. The Trial Court as well as

the  High  Court,  has  recorded  a  finding  that  the

perusal  of  the  record  reveals  the  ASP  was

summoned number of times but either service was not

effected or as and when he was served, he sent a

request  for  exemption  from  personal  attendance

stating valid reasons. Further, it appears that the

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High Court has issued directions to the Trial Court

to decide the case before 30.04.1999. As much as S.K.

Asthana,  ASP  was  not  examined  by  30.04.1999,  a

request for an extension was sought by the Special

Judge, Ferozepur and it was adjourned to 17.05.1999.

Even by 17.05.1999, the ASP could not be served as he

was on leave. In view of such reasoning assigned by

the Trial Court, as well as the High Court, merely

because  S.K.  Asthana,  ASP  was  not  examined,  it

cannot be  said  that prosecution has failed to prove

its case. It is clear from the evidence on record

that  he  was  summoned  at  the  time  of  search  and

seizure  and  only  in  his  presence  search  was

conducted, as such, there is no violation of Section

50 of the NDPS Act.   

14. Further,  it  is  contended  by  learned  senior

counsel  appearing  for  the  appellant  that  no

independent  witness  was  examined,  despite

the fact they were available. In this regard, it is

to be noticed from the depositions of Devi Lal, Head

Constable  (PW-1),  during  the  course  of  cross-

examination,  has  stated  that  efforts  were  made  to

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join independent witnesses, but none were available.

The mere fact that the case of the prosecution is

based on the evidence of official witnesses, does not

mean that same should not be believed.

15. The  judgment  in  the  case  of  Jarnail  Singh  v.

State of Punjab4, relied on by the counsel for the

respondent-State  also  supports  the  case  of  the

prosecution. In the aforesaid judgment, this Court

has  held  that  merely  because  prosecution  did  not

examine  any  independent  witness,  would  not

necessarily  lead  to  conclusion  that  accused  was

falsely  implicated.  The  evidence  of  official

witnesses  cannot  be  distrusted  and  disbelieved,

merely on account of their official status. In the

case of State, Govt. of NCT of Delhi v. Sunil & Anr.6  

it was held as under:      

“It  is  an  archaic  notion  that actions of the Police Officer, should be approached with initial distrust. 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 Courts cannot start with the presumption that the police records are untrustworthy. AS a presumption of law, the presumption would be the other way

6 (2001)1 SCC 652

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round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature”.         

16. Learned  counsel  also  placed  reliance  on  the

judgment of this Court in the case of  Mohan Lal3 to

support his argument that informant and investigator

cannot  be  the  same  person.  But  in  the  subsequent

judgment, in the case of  Varinder Kumar5  this Court

held that all pending criminal prosecutions, trials

and appeals prior to law laid down in  Mohan Lal3,

shall continue to be governed by individual facts of

the case.

17. Having regard to oral and documentary evidence

placed  on  record,  we  are  in  agreement  with  the

findings recorded by the Trial Court and High Court.

From  the  evidence  on  record  in  this  case  the

prosecution  has  proved  the  guilt  of  the  appellant

beyond reasonable doubt. The conviction recorded and

the  sentence  imposed  is  in  conformity  with  the

provisions of law and evidence on record, thus no

interference is called for. Accordingly, this appeal

is devoid of merits, and the same is dismissed.

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18. As the appellant-accused is on bail, the bail

bonds  are  cancelled.  He  shall  surrender  within  a

period of four weeks from today, to serve remaining

period of sentence, failing which, the Chief Judicial

Magistrate, shall take necessary steps to take the

appellant into custody to serve remaining period of

sentence.

    ...................J.      [N.V. Ramana]

...................J.      [R. Subhash Reddy]

    ...................J.      [B.R. Gavai]

  New Delhi, January 06, 2020.