REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 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)
2
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:
(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”).
(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:
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.
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.
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 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 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 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.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 19, 2012.
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