SURINDER KUMAR versus STATE OF PUNJAB

[2020] 1 S.C.R. 307

SURINDER KUMAR

STATE OF PUNJAB

(Criminal Appeal No. 512 of 2009)

JANUARY 06, 2020

[N. V. RAMANA, R. SUBHASH REDDY AND

B. R. GAVAI, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:

s. 50 – Recovery of opium – Trial – Conviction – Confirmedin appeal by High Court – Appeal to Supreme Court – Held: Noviolation of s. 50 – Chain of evidence was complete – Non-examination of ASI, ASP and independent witnesses was not fatalin the facts of the case.

Dismissing the appeal, the Court

HELD : 1. The ASI after producing the case property beforethe Court, returned the case property to PW-3 with the sealsintact. ASI was not in possession of seals of either of theinvestigating officer or of PW-3. Therfore, the question oftampering with the case property by him did not arise at all. Furtherhe has returned the case property, after production of the same,before the Illaqa Magistrate, with the seals intact, to PW3. Inthat view of the matter, the Trial Court and the High Court haverightly held that non-examination of the ASI did not, in any way,affect the case of prosecution. Further, it is evident from the reportof the Chemical Examiner, Ex.P-10, that the sample was receivedwith seals intact and that the seals on the sample, tallied with thesample seals. In that view of the matter, the chain of evidencewas complete. [Paras 10 and 11] [312-A, C, D-E]

2. The Trial Court as well as the High Court, has recordeda finding that the perusal of the record reveals the ASP wassummoned number of times but either service was not effectedor as and when he was served, he sent request for exemptionfrom personal attendance stating valid reasons. Further, it appearsthat the High Court has issued directions to the Trial Court to

Adecide the case before 30.04.1999. As much as the ASP was notexamined by 30.04.1999, request for an extension was soughtby the Special Judge, and it was adjourned to 17.05.1999. Evenby 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 asthe High Court, merely because the ASP was not examined, itBcannot be said that prosecution has failed to prove its case. It isclear from the evidence on record that he was summoned at thetime of search and seizure and only in his presence search wasconducted, as such, there is no violation of Section 50 of the NDPS

Act. [Para 13] [313-A-C]C

3. PW-1, during the course of cross-eamination, has statedthat efforts were made to join independent witnesses, but nonewere available. Mere fact that the case of the prosecution is basedon the evidence of official witnesses, does not mean that sameshould not be believed. [Para 14] [313-E]

4. From the evidence on record in the present case, theprosecution has proved the guilt of the appellant beyondreasonable doubt. The conviction recorded and the sentenceimposed is in conformity with the provisions of law and evidenceon record, thus no interference is called for. [Para 17] [314-D]

ETrimukh Maroti Kirkan v. State of Maharashtra (2006)10 SCC 681 : [2006] 7 Suppl. SCR 156 ; Noor Aga v.State of Punjab & Anr. (2008) 16 SCC 417 : [2008]10 SCR 379 ; Mohan Lal v. State of Punjab (2018) 17SCC 627 : [2018] 9 SCR 1006 ; Jarnail Singh v. StateFof Punjab (2011) 3 SCC 521 : [2011] 2 SCR 888 ;Varinder Kumar v. State of Himachal Pradesh, (2019)SCC Online SC 170 ; State, Govt. of NCT of Delhi v.Sunil & Anr. (2001) 1 SCC 652 : [2000] 5 Suppl. SCR 144 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 512 of 2009.

From the Judgment and Order dated 22.04.2008 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 706-SBof 1999.

Mahabir Singh, Sr. Adv., Ms. Preeti Singh, D. Mahesh Babu, GaganDeep Sharma, Ms. Swati Jindal, Amit K. Nair, Advs. for the Appellant.

Ms. Ranjeeta Rohatgi, Adv. for the Respondent.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. This Criminal Appeal is filed by the soleaccused, aggrieved bythe judgment dated 22.04.2008passed in Criminal Appeal No.706-SBof 1999 passed by the High Court of Punjab and Haryana at Chandigarh.

2. The appellant herein was convicted for the offence punishableunder 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, for offence under Section 18of NDPS, 1985 and was sentenced to undergo rigorous imprisonmentfor period of 10 years and to pay fine of Rs. 1,00,000/- (Rupees OneLakh) in default of payment of the same, to undergo rigorous imprisonmentfor 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 policeofficials were going from Dalbir Khera towards Waryam Khera, in aprivate jeep, on patrol duty, and when they reached near the bridge ofCanal minor, the appellant-accused was seen coming from the oppositedirection, carrying bag in his right hand. On seeing the police party, theappellant-accused turned towards the Southern bank of the canal, butwas apprehended on suspicion. The search of the bag, carried by theaccused, in the presence of ASP, Abohar, who was called to the spot, in

Aaccordance with the provisions of the law, resulted into recovery of 1 kg750 grams of opium. Upon seizure, 2 samples of 10 grams each, wereseparated and the remaining opium was put into the same bag. Thesamples were duly sealed and taken into possession. Thereafter, Ruqawas sent to the police station, on the basis whereof an FIR was registered.The accused was arrested and after completion of the investigation, heBwas challaned. On appearance in the court, the documents relied uponby the prosecution were supplied to the accused. charge under Section18 of the Act was framed against him, to which he pleaded not guiltyand claimed trial.

4. To prove the charge against the appellant on behalf of theCprosecution, 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 Section313 of Cr.P.C. was recorded and he was explained of all incriminatingcircumstances appeared against him, in the prosecution evidence. HeDpleaded false implication, however, he did not lead any evidence in hisdefence. After appreciating the oral and documentary evidence onrecord, the learned Special Judge, Ferozepur, vide his judgment dated20.05.1999, in Sessions Trial No.17/1999, by recording finding thatprosecution has proved the guilt of the accused for offence under Section18 of the Act, in keeping in his possession 1 kg 750 grams of opium inEthe area of village Dalmir Khera, convicted the appellant, he wassentenced to rigorous imprisonment for 10 years and to pay fine ofRs.1,00,000/- (Rupees One Lakh) in default, to undergo rigorousimprisonment for one year.5. Aggrieved by the aforesaid judgment of the Trial Court, theFappellant herein has filed criminal appeal No. 706-SB before HighCourt of Punjab and Haryana at Chandigarh. The High Court byimpugned judgment dated 22.04.2008, dismissed the appeal filed by theappellant herein and confirmed the judgment and order of sentence dated20.05.1999, passed by the Special Judge, Ferozepur.G6. We have heard Sri Mahabir Singh, learned senior counselappearing for the appellant assisted by Mr. D.Mahesh Babu, advocate-on-record and Ms. Ranjeeta Rohatgi, learned counsel appearing for therespondent-State.

7. In this appeal, it is mainly contended by learned senior counselfor 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 examinedthus link evidence was incomplete, in spite of the same Trial Court andHigh Court has committed error in convicting the appellant. Further it issubmitted that though independent witnesses were there in the patrollingparty, such witnesses were not examined and conviction was solely basedon the official witnesses. Further it is submitted that S.K. Asthana, ASPwho is claimed to have joined to the party by the police, was not evenexamined and in fact he was not there and opium was not recovered inhis presence. It is also pleaded thus there is violation of provisionunder Section 50 of NDPS Act, 1985.

8. Learned senior counsel appearing for the appellant, to buttresshis submissions, placed reliance on the following judgments:

(i)Trimukh Maroti Kirkan v. State of Maharashtra[1].

(ii)Noor Aga v. State of Punjab & Anr[2].

(iii) Mohan Lal v. State of Punjab[3].

9. On the other hand, learned counsel for the respondent-statehas submitted that the prosecution has proved the case by leading cogentevidence, whichproved guilt of the appellant beyond reasonable doubtand there are no grounds to interfere with the same. Learned counselhas submitted that merely because prosecution has not examined anyindependent witness, same would not necessarily lead to the conclusionthat the appellant has been falsely implicated. He placed reliance on thejudgment in the case of Jarnail Singh v. State of Punjab[4]. Furtherrecent judgment of this Court in the case of Varinder Kumar v. Stateof Himachal Pradesh[5], is also relied on wherein this Court has heldthat all pending criminal prosecutions, trials and appeals prior to the lawled down in Mohan Lal[3], shall continue to be governed by the individualfacts of the case.

10. According to learned senior counsel for the appellant, JoginderSingh, ASI to whom Yogi Raj, SHO (PW-3) handed over the case property

1 (2006) 10 SCC 6812 (2008)16 SCC 4173 (2018)17 SCC 627.4 (2011)3 SCC 521.5 (2019) SCC Online SC 170

Afor producing the same before the Illaqa Magistrate and who returnedthe same to him after such production was not examined, as such, linkevidence was incomplete. In this regard, it is to be noticed that Yogi RajSHO handed over the case property to Joginder Singh, ASI, for productionbefore the Court. After producing the case property before the Court,he returned the case property to Yogi Raj, SHO (PW-3) with the sealsBintact. It is also to be noticed that Joginder Singh, ASI was not inpossession of seals of either of the investigating officer or of Yogi Raj,SHO. He produced the case property before the Court on 13.09.1996vide application Ex.P-13, the concerned Judicial Magistrate of First Class,after verifying the seals on the case property, passed the order Ex.P-14Cto the effect that since there was no judicial malkhana at Abohar, thecase property was ordered to be kept in safe custody, in Police StationKhuian Sarwar till further orders. Since Joginder Singh, ASI was not inpossession of the seals of either of the SHO or of the InvestigatingOfficer, the question of tampering with the case property by him did notarise at all.D11. Further he has returned the case property, after production ofthe same, before the Illaqa Magistrate, with the seals intact, to YogiRaj, SHO. In that view of the matter, the Trial Court and the High Courthave rightly held that non-examination of Joginder Singh, did not, in anyway, affect the case of prosecution. Further, it is evident from the reportEof the Chemical Examiner, Ex.P-10, that the sample was received withseals 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 MahabirSingh is that the ASP, who was summoned to the spot, in whose presenceFsearch and recovery was effected, was not examined. As such, it issubmitted that the non-examination of ASP is fatal to the case ofprosecution 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 goingGfrom Dalbir Khera-2 towards Waryam Khera in private jeep, whenthey reached near the bridge of Canal Minor, theappellant-accusedwas seen coming from opposite direction carrying bag. It is allegedthat on seeing the police party, he turned towards the Southern bank ofthe canal but was apprehended on suspicion. It is specifically pleadedHthat 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 ofopium. The Trial Court as well as the High Court, has recorded findingthat the perusal of the record reveals the ASP was summoned numberof times but either service was not effected or as and when he wasserved, he sent request for exemption from personal attendance statingvalid reasons. Further, it appears that the High Court has issued directionsto the Trial Court to decide the case before 30.04.1999. As much asS.K. Asthana, ASP was not examined by 30.04.1999, request for anextension was sought by the Special Judge, Ferozepur and it wasadjourned to 17.05.1999. Even by 17.05.1999, the ASP could not beserved as he was on leave. In view of such reasoning assigned by theTrial Court, as well as the High Court, merely because S.K. Asthana,ASP was not examined, it cannot be said that prosecution has failed toproveits case. It is clear from the evidence on record that he wassummoned at the time of search and seizure and only in his presencesearch was conducted, as such, there is no violation of Section 50 of theNDPS Act.

14. Further, it is contended by learned senior counsel appearingfor the appellant that no independent witness was examined, despite thefact they were available. In this regard, it is to be noticed from thedepositions of Devi Lal, Head Constable (PW-1), during the course ofcross-examination, has stated that efforts were made to join independentwitnesses, but none were available. The mere fact that the case of theprosecution is based on the evidence of official witnesses, does not meanthat same should not be believed.

15. The judgment in the case of Jarnail Singh v. State of Punjab[4],relied on by the counsel for the respondent-State also supports the caseof the prosecution. In the aforesaid judgment, this Court has held thatmerely because prosecution did not examine any independent witness,would not necessarily lead to conclusion that accused was falselyimplicated. The evidence of official witnesses cannot be distrusted anddisbelieved, merely on account of their official status. In the case ofState, 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, shouldbe approached with initial distrust. It is time now to start placingat least initial trust on the actions and the documents made by thePolice. At any rate, the Courts cannot start with the presumption

6 (2001)1 SCC 652

Athat the police records areuntrustworthy. AS presumption oflaw, the presumption would be the other way round. The officialacts of the Police have been regularly performed is wiseprinciple of presumption and recognized even by the Legislature”.

16. Learned counsel also placed reliance on the judgment of thisBCourt in the case of Mohan Lal[3]to support his argument that informantand investigator cannot be the same person. But in the subsequentjudgment, in the case of Varinder Kumar[5 ]this Court held that all pendingcriminal prosecutions, trials and appeals prior to law laid down in MohanLal[3], shall continue to be governed by individual facts of the case.

C17. Having regard to oral and documentary evidence placed onrecord, we are in agreement with the findings recorded by the TrialCourt and High Court. From the evidence on record in this case theprosecution has proved the guilt of the appellant beyond reasonable doubt.The conviction recorded and the sentence imposed is in conformity withthe provisions of law and evidence on record, thus no interference isDcalled for. Accordingly, this appeal is devoid of merits, and the same isdismissed.

18. As the appellant-accused is on bail, the bail bonds are cancelled.He shall surrender within period of four weeks from today, to serveremaining period of sentence, failing which, the Chief Judicial Magistrate,Eshall take necessary steps to take the appellant into custody to serveremaining period of sentence.

Kalpana K. Tripathy

Appeal dismissed.