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Sunday, February 7, 2016

Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) for being in possession of 1 kg of opium without any permit or licence.=The appellant was told that he was suspected to be carrying opium in his possession and as such his personal search had to be undertaken and that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant was given an appropriate notice vide Ext. PA under Section 50 of the Act and by his reply Ext. PA/1 he opted to be searched before a Gazetted Officer. Thereafter a wireless message was sent to PW4 Shyam Singh Rana, DSP Gohana who reached the spot. The appellant was produced before him and PW4 was also acquainted with the facts of the case. Thereafter, on the instructions of PW4, personal search of the appellant was undertaken which resulted in recovery of opium from the possession of the appellant. The opium was found in a polythene bag tied in a cloth around the stomach of the appellant. On weighment, it was found to be 1kg 50gms. A sample was taken and put in a small plastic bag while the remainder was put in a bag of cloth. The sample and the remainder were separately sealed and taken in possession vide memo Ext. PB. The seal was then handed over to PW1 ASI Bishamber Lal. Thereafter Ruqa Ext. PC was sent to the Police Station for registration of crime, whereupon FIR Ext. PC was recorded by PW2 Head Constable Om Parkash= it was observed in Megha Singh as under: “After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws.2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.” = In Megha Singh, the search was not conducted in the presence of a Gazetted Officer, as is required in a case under the Act. In the instant case the search of the appellant was conducted in the presence of and under the instructions of PW4. The extracts of depositions of other prosecution witnesses show that it was not PW6 S.I. Satbir Singh alone who was involved in the investigation. In our view the principle laid down in Megha Singh and followed in State vs. Rajangam does not get attracted in the present matter. Relevant to note that this was not even a ground projected in support of the case of the appellant and does not find any reference in the judgment under appeal. We therefore reject the submission.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 50  of 2016
                (Arising from the SLP(Crl.) No. 2082 of 2015)


Surender @ Kala                                   …. Appellant

                                   Versus

State of Haryana                                  …. Respondent

                               J U D G M E N T

Uday U. Lalit, J.


Leave granted.



This appeal is directed against the  judgment  and  order  dated  11.12.2014
passed by the High Court of Punjab and Haryana  dismissing  Criminal  Appeal
No. S-318-SB of 2004 preferred  by  the  appellant  against  his  conviction
under Section 18 of Narcotic Drugs and  Psychotropic  Substances  Act,  1985
(hereinafter referred to as the ‘Act’) for being in possession of  1  kg  of
opium without any permit or licence.



According to the prosecution PW6 SI Satbir Singh was on  usual  patrol  duty
on 24.06.2002 along with other police officials  at  bus  stand  of  village
Bichpar, Distt Sonipat. Secret information was  received  by  him  that  the
appellant was selling opium and was roaming in  the  village  in  search  of
customers.  This information was reduced to writing  in  the  form  of  Ruqa
Ext. PF and was sent to the Police Station for  information,  whereupon  DDR
Ext. PC was recorded.  PW6 Satbir and other  police  officials  reached  the
bus stand and saw the appellant coming from village Gangana  side.   He  was
apprehended. The appellant was told that he was  suspected  to  be  carrying
opium in  his  possession  and  as  such  his  personal  search  had  to  be
undertaken and that he had a right to be  searched  in  the  presence  of  a
Gazetted Officer or a Magistrate. The appellant  was  given  an  appropriate
notice vide Ext. PA under Section 50 of the Act and by his reply  Ext.  PA/1
he opted to be searched before a Gazetted Officer.



Thereafter a wireless message was sent to PW4 Shyam Singh Rana,  DSP  Gohana
who reached the spot. The appellant was produced  before  him  and  PW4  was
also acquainted with the facts of the case. Thereafter, on the  instructions
of PW4, personal search of the appellant was undertaken  which  resulted  in
recovery of opium from the possession of the appellant. The opium was  found
in a polythene bag tied in a cloth around the stomach of the  appellant.  On
weighment, it was found to be 1kg 50gms. A sample was taken  and  put  in  a
small plastic bag while the remainder was put in a bag of cloth. The  sample
and the remainder were separately sealed and taken in possession  vide  memo
Ext. PB. The seal was then handed over to PW1 ASI Bishamber Lal.  Thereafter
Ruqa Ext. PC was sent to the  Police  Station  for  registration  of  crime,
whereupon FIR Ext. PC was recorded by PW2 Head Constable Om Parkash.



The appellant along with the case property was produced before PW3  Yad  Ram
SHO of Police Station who verified the fact and put  his  own  seal  bearing
impression “YR” on the sample as well as on the  remainder.  Thereafter  the
sealed case property was  handed  over  to  the  Investigating  Officer  who
deposited the same with Malkhana. In due course of time the FSL report  Ext.
PD was received wherein it was  opined  that  the  sample  in  question  was
opium. After completion of investigation the  appellant  was  charge-sheeted
and tried for having committed the offence punishable under  Section  18  of
the Act.



The prosecution in support of its  case  examined  six  witnesses.  PW1  ASI
Bishamber Lal stated as under:-

“As contraband article was suspected with the accused so he was served  with
a notice Ext. PA to opt about his search before  a  Gazetted  Officer  or  a
Magistrate, which is bearing my signatures. Accused  opted  for  his  search
before a Gazetted officer vide endorsement Ex.  PA/1  which  is  bearing  my
signatures.”



PW2 Head Constable Om Parkash in his deposition stated as under:-

“On that day ASI  Bishamber Lal deposited the case property with  me,  which
was sealed with seal SS.”

Pw 3 SI Yad Ram in his deposition stated as under:-

“On 24.06. 2002, I was posted SI/HO P.S.  Baroda.  On  that  day  SI  Satbir
Singh had produced the accused now present in the court, two sealed  parcels
and the witnesses before me. I verified the  investigation  and  affixed  my
own bearing inscription “YR”. I directed SI  Satbir  Singh  to  deposit  the
case property with seals intact with the MHC P.S. Baroda.”

PW4 Shyam Singh Rana DSP stated as under:-

“I directed SI Satbir Singh to carry out the search of the  accused.  During
the course of search SI Satbir Singh recovered opium wrapped in a cloth  was
tied with the stomach of the accused underneath the shirt and  the  vest  of
the accused wrapped in a polythene pack. On weighment it  was  found  to  be
one kilogram. SI Satbir Singh took out 50grams of opium from  the  recovered
bulk and sealed the sample and the remainder into two separate parcels  with
the sealed bearing inscription SS. Both the sealed parcels were  taken  into
possession vide recovery memo EX. PB which was signed by ASI  Bishamber  Lal
and HC Suresh Kumar and was attested by me also.”



7.    In his statement under Section 313 Cr. P.C. the appellant  denied  the
prosecution  allegations  and  pleaded  innocence.   After  considering  the
material on record and rival submissions, the Special Judge,  Sonipat  found
the appellant guilty of offence punishable under Section 18 of the  Act  and
by his  judgment  and  order  dated  14.11.2004  sentenced  him  to  undergo
rigorous imprisonment for 5 years  and  to  pay  fine  of  Rs.  10000/-,  in
default whereof to undergo further rigorous imprisonment for a period  of  8
months.

8.     The judgment of conviction and sentence  was  challenged  by  way  of
Criminal Appeal of S-318 –SB of 2004 in the High  Court.  After  considering
the entire material on record, the High Court by its judgment  under  appeal
affirmed the view taken by the Trial Court and  dismissed  the  appeal.  The
correctness of the view taken by the High Court is under  challenge  in  the
present appeal.

9.    It was submitted by Mr. Rakesh Dahiya, learned advocate appearing  for
the appellant that the investigation in the matter was conducted by  PW6  SI
Satbir Singh who himself was the complainant. Relying  on  the  decision  of
this court in State by Inspector of Police,  Narcotic  Intelligence  Bureau,
Madhurai, Tamil Nadu v. Rajangam[1], the learned counsel submitted that  the
investigation by PW6 SI Satbir Singh was  improper  and  the  appellant  was
entitled to acquittal.

10.   We have given anxious consideration to the submissions of the  learned
counsel. In State v. Rajangam (supra), the  High  Court  had  acquitted  the
accused. Relying upon the decision of this court in Megha Singh v. State  of
Haryana[2], the view taken by the High Court was affirmed by this  Court  in
an appeal against acquittal.  In Megha Singh the  accused  was  tried  under
the provisions of the TADA Act and the Arms Act for being in  possession  of
a country made pistol and three live cartridges.  The  prosecution  did  not
examine any independent witness and simply relied upon the testimony of  PW3
Investigating Officer. There was also discrepancy in the depositions of  PW3
Investigating Officer and another police person namely PW2. In the light  of
these facts,  it was observed in Megha Singh as under:

      “After considering  the  facts  and  circumstances  of  the  case,  it
appears to us that there is discrepancy in the  depositions  of  the  P.Ws.2
and 3 and in the absence of any independent corroboration  such  discrepancy
does not inspire confidence about the reliability of the  prosecution  case.
We have also noted another  disturbing  feature  in  this  case.  PW3,  Siri
Chand, head Constable arrested the accused and on search being conducted  by
him a pistol and the cartridges were recovered from the accused. It  was  on
his complaint a formal first information report was lodged and the case  was
initiated.  He  being  complainant  should  not  have  proceeded  with   the
investigation of the case. But it appears to us that he  was  not  only  the
complainant in the case  but  he  carried  on  with  the  investigation  and
examined witnesses under Section 161  Cr.P.C.  Such  practice,  to  say  the
least, should not be resorted to so that there may not be  any  occasion  to
suspect fair and impartial investigation.”


11.   In Megha Singh, the search was not conducted  in  the  presence  of  a
Gazetted Officer, as is required in a case under the Act.   In  the  instant
case the search of the appellant was conducted in the presence of and  under
the instructions of PW4. The extracts of depositions  of  other  prosecution
witnesses show that it was not PW6 S.I. Satbir Singh alone who was  involved
in the investigation. In our view the principle laid  down  in  Megha  Singh
and followed in State vs. Rajangam does not get  attracted  in  the  present
matter. Relevant to note that this  was  not  even  a  ground  projected  in
support of the case of the appellant and does not find any reference in  the
judgment under appeal. We therefore reject the submission.

12.   Having gone through the entirety of the matter, we  do  not  find  any
reason to differ from the  view  taken  by  the  High  Court.  We  therefore
dismiss this appeal.


………………………J.
(V. Gopala Gowda)


…………………..……J.
(Uday Umesh Lalit)
New Delhi,
January 19, 2016

ITEM NO.1D-For Judgment        COURT NO.10            SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Crl.A.No.50/2016 @ Petition(s) for Special Leave to  Appeal  (Crl.)   No(s).
2082/2015

SURENDER @ KALA                                    Petitioner(s)

                                VERSUS

STATE OF HARYANA                                   Respondent(s)

Date : 19/01/2016 This appeal was called on for  pronouncement  of  JUDGMENT
today.

For Petitioner(s)
                     Mr. Rakesh Dahiya,Adv.

For Respondent(s)
                     Mr. Sanjay Kumar Visen,Adv.


      Hon'ble Mr. Justice Uday Umesh Lalit pronounced the  judgment  of  the
Bench comprising Hon'ble Mr. Justice V. Gopala Gowda and His Lordship.
      Leave granted.
      The appeal is dismissed in terms of the  signed  reportable  judgment.

      Pending application(s), if any,stand(s) disposed of.
|(VINOD KUMAR)                          | |(MALA KUMARI SHARMA)                  |
|COURT MASTER                           | |COURT MASTER                          |



      (Signed Reportable Judgment is placed on the file)
-----------------------
[1]   1. 2010(15) SCC 369
[2]     1996(11) SCC 709

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