SERVICE MATTER = where the respondent allegedly worked in the College as part- time Lecturer without any appointment letter and without any selection process. Since the Society never issued any letter of appointment a letter of termination was also not served upon the respondent. As stated above, in the absence of any appointment letter, issued in favour of the respondent as he was temporary/part-time lecturer in the College, there cannot be any legitimate expectation for his continuing in the service.. This was the reason that when in the years 1995 and 1996, two persons were appointed one after the other on the post of Lecturer in History, the respondent did not challenge the said appointments. Even assuming that the respondent was permitted to work in the College as part-time lecturer for some period, the action of the management of the college asking him to stop doing work cannot be held to be punitive. The termination simplicitor is not per se illegal and is not violative of principles of natural justice. 26. After giving our anxious consideration in the matter and analyzing the entire facts of the case, we are of the view that the impugned order passed by the Education Appellate Tribunal and the High Court cannot be sustained in law and are liable to be set aside.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2948 OF 2013
(Arising out of the Special Leave Petition (C) No.27031 of 2011)
B.T. Krishnamurthy …. Appellant (s)
Versus
Sri Basaveswara Education Society & Ors. ….Respondent (s)
WITH
CIVIL APPEAL NO. 2949 OF 2013
(Arising out of Special Leave Petition( C) No.27130 of 2011)
Sri Basaveswara Education Society & Anr. …. Appellant (s)
Versus
T.D. Viswanath & Ors. ….Respondent(s)
J U D G M E N T
M.Y.EQBAL,J.
Leave granted.
2. Since these two appeals arose out of the common
judgment and order dated 11.07.2011 passed in Writ Appeal Nos.
1812 of 2006 and 1865 of 2006, the same have been heard and
disposed of by this common judgment.Page 2
3. By the impugned judgment and order, a Division Bench of
the Karnataka High Court dismissed the appeals and affirmed the
order dated 20 0f 2006 passed by a learned Single Judge in Writ
Petition Nos. 52603 of 2003 and 54201 of 2003 and the order dated
03.12.2002 passed by the Education Appellate Tribunal in EAT No.16
of 1996.
4. The facts of the case lie in a narrow compass:-
5. Respondent No.1 T.D. Viswanath, in Civil Appeal arising
out SLP(C) No. 27130 of 2011 (in short respondent no.1) alleged to
have been appointed as a Lecturer in Sri Basaveswara Junior College
(in short, ‘the college’) run by Sri Basaveswara Education Society (in
short, ‘the Society’). According to the said respondent No.1, since the
date of appointment i.e. 28.06.1990 he continuously worked as a
Lecturer in the College run by the Society. It was alleged that all of a
sudden on 22.07.1995 the Society/College issued oral directions
directing respondent No.1 not to attend the College and take classes
on the ground that his services have been terminated.
6. It appears that on 19.06.1995, the Society issued an
advertisement in the newspaper inviting applications for appointment
on the post of Lecturer in History in the said College. Pursuant to the
2Page 3
said advertisement, respondent No.1 applied for the said post and
was called for interview, but he was not selected and in his place one
T.S. Malleshappa was selected for the said post. The said T.S.
Malleshappa joined the said post of Lecturer, but within a year he left
the service and joined M.Phil Course. Subsequently, the Society
issued another advertisement dated 03.05.1996 inviting applications
from eligible candidates for the post of Lecturer (History). Again after
interview, one R. Siddegora was appointed as a Lecturer (History) for
a period of two years. In the meantime, respondent No.1 filed a writ
petition being No. 31770 of 1995 before the Karnataka High Court
seeking a mandamus directing the Society of the College to reinstate
him in service with all consequential benefits and further direction was
sought not to make any appointment in his place. The said writ petition
was dismissed on 29.10.1996 by the High Court on the ground of
alternative remedy of appeal available before the Education Appellate
Tribunal (in short, the ‘Tribunal’).
7. Respondent No.1 thereafter filed an appeal before the
Tribunal challenging his termination/removal from the post of
Lecturer. Along with the said appeal, an application for condonation of
delay was also filed. Pending appeal, the Tribunal passed interim
3Page 4
order dated 17.12.1996, restraining the Society and the Principal of
the College from appointing any person to the post of Lecturer.
8. In the year 1998, Director of Pre-University Education
Board by communication dated 24.08.1998 asked the Society to fill up
the remaining three posts from reserved category in order to obtain
the approval for the teaching staff. Consequently, posts were
advertised and one B.T. Krishnamurthy, who is appellant in Civil
Appeal arising out of the Special Leave Petition No. 27031 of 2011
was appointed as Lecturer.
9. However, the Tribunal by order dated 03.12.2002, allowed
the appeal filed by respondent No.1 and directed the Society to
reinstate respondent No.1 in service w.e.f. 23.07.1995 and to pay him
all pecuniary benefits w.e.f. 23.07.1995. The Tribunal further directed
the Society to regularize the services of respondent No1. The Tribunal
further declared the appointment of B.T. Krishnamurthy as illegal and
improper.
10. Aggrieved by the aforesaid order of the Tribunal, the
appellants herein - the Society and B.T. Krishnamurthy filed separate
writ petitions challenging the order passed by the Tribunal. The High
Court dismissed the writ petitions by judgment and order dated
20.09.2006 and refused to interfere with the order passed by the
4Page 5
Tribunal. The Society and B.T. Krishnamurthy then preferred intracourt appeals before the Division Bench of the High Court which were
heard and dismissed in terms of the impugned judgment and order
dated 11.07.2011. Hence, these appeals.
11. The case of respondent No.1, T.D. Viswanath before the
Tribunal was that he was appointed to the post of Lecturer in History
on 28.06.1990 against a clear vacancy available in the College. From
the date of appointment, he was assigned the work for development of
literacy and other curriculum. It was alleged that during the year 1995
when the institution was admitted for grant-in-aid by the Government
he was working in the same institution. However on 22.07.1995,
without any previous notice, the appellant-institution called upon him
and directed not to come for duty in future.
12. Respondent No.1 first filed a writ petition before the
Karnataka High Court, but the same was dismissed with liberty to him
to approach the competent forum i.e. Education Appellate Tribunal.
Accordingly, respondent No.1 approached the Tribunal and prayed for
regularization of his services.
13. The case of the appellant-institution was that the institution
had not issued any appointment order either permanently or
temporarily appointing him to work in the institution. As a matter of
5Page 6
fact, respondent No.1 was allowed to serve the institution temporarily
on the post of Lecturer purely on ad hoc basic. For the first time in the
year 1995, several posts of Lecturers in the College were advertised.
Pursuant to that, respondent No.1 T.D. Viswanath also applied for the
post of Lecturer in History on 22.06.1995, but he was not selected for
the said post,. Consequently, a writ petition was filed before the High
Court and thereafter an appeal before the Tribunal seeking
regularisation of his services.
14. The Tribunal proceeded on the basis of some entries
made in different registers of the College and the certificate dated
27.04.1991 allegedly issued by the Principal of the College certifying
that the respondent T.D.Viswanath worked as part-time Lecturer in the
institution from July 1990 to March 1991. The Tribunal also noticed
the certificate said to have been issued on 22.07.1995 certifying that
T.D. Viswanath was working as Lecturer in History in the College on
part time temporary basis. In the prospectus of the College for the
years 1992-93 and 1993-94 the name of respondent finds place as a
Lecturer. The Tribunal further noticed the relevant provisions of the
Education Act and finally came to the conclusion that the respondent
was serving the College as temporary part-time Lecturer which is
evident from the attendance register maintained by the College. The
6Page 7
Tribunal, therefore, held that even presuming that the respondent was
a temporary employee he was to be removed from service by passing
appropriate orders and that by reason of the passage of time the
respondent acquired right for regularization in service. The Tribunal
further held that respondent No.1 was in service till 22.07.1995 on
which date he was asked not to come to College again. In that view of
the matter, the respondent was entitled to reinstatement
retrospectively from that date. Finally, the Tribunal held that
B.T.Krishnamurthy cannot be allowed to occupy the vacancy and
inasmuch as his appointment was illegal and it is for the management
to absorb him in any other subject. According to the Tribunal, the
appointment of B.T.Krishnamurthy has to be held as illegal and
improper. On these findings, the Tribunal passed the following order:
“The appeal filed by the appellant stands
allowed. The respondent No.1 and 3 are directed to
reinstate the appellant in service from 23.7.1995. The
appellant will be entitled to all service and pecuniary
benefits attached to service. However, the
management shall pay to him retrospectively from
23.7.1995 salary in the scale of pay that was being
paid to him and his services shall be regularized and
he shall be paid salary at the Government scale of
pay admissible to the employee of that cadre.
In view of this order, the appointment of Shri
B.T.Krishnamurthy is held to be illegal and improper
and therefore the management i.e. respondents 1 and
3 are required to take consequential action to comply
with this order.
7Page 8
However, it is observed that in case
B.T.Krishnamurthy could be absorbed as a lecturer in
any other subject in the institution. The management
shall explore all opportunity to continue his
employment.
As the consequence of this order as services
of Shri B.T.Krishnamurthy will stand terminated
therefore I feel it is appropriate to grant two months
time to the management to do the needful.
In the circumstances, there is no order to
costs.
Pronounced in open Court by dictating to the
judgment-writer on this 3rd day of December 2002,
then transcribed, computerized and print out taken by
him, and after correction, signed by me.”
15. The aforesaid order and award of the Tribunal was
challenged by both the appellants herein namely, the Society and B.T.
Krishnamurthy before the High Court. The learned Single Judge
without analyzing the finding recorded by the Tribunal dismissed both
the writ petitions on 20.09.2006. Para 8 and 9 of the order passed by
the learned single Judge is as under:
“The tribunal, having arrived at findings of fact
on an elaborate consideration of the pleadings
and material placed before it, it cannot be said
that it has committed an error which would
warrant interference by this Court in its writ
jurisdiction. I do not find any ground for
interference and though an argument is
canvassed as regards the appeal having been
entertained without condoning the delay in the
first instance, neither of the petitioners have
sought to raise any such ground in the petitions
and hence, it would not warrant consideration. In
any event, the tribunal having proceeded to
8Page 9
pass an award after taking into consideration
that the question of limitation was kept open and
having rendered a positive order in favour of the
respondent No.4, it is to be deemed that the
delay in filing the appeal was condoned.
Accordingly, I do not find any ground for
interference. The petitions in W.P.No.
52603/2003 as well as W.P. No. 54201/2003
are hereby dismissed.”
16. Both the appellants preferred intra-court appeals before
the Division Bench of the High Court against the order passed by the
learned Single Judge dismissing the writ petitions. The Division
Bench also proceeded on the basis that respondent no.1 worked as a
History Lecturer from 28.06.1990 to 22.07.1995 pursuant to the
Notification dated 26.05.1990. However, in the said notification
nothing was mentioned that the appointment is made for the post of
History Lecturer on part-time basis or temporary arrangement. The
Division Bench also considered the fact that the State Government by
its Notification dated 21.04.1995 had made it clear that the reservation
policy of the State Government regarding appointment of teaching and
non-teaching employees was to be left undisturbed. The Division
Bench, however, not disputed the fact that neither appointment order
nor termination letter was issued in the case of the respondent no.1.
There was also no evidence to show that the appointment of
respondent no.1 was temporary or on part-time. On the basis of those
9Page 10
facts, the Division Bench refused to interfere with the order passed by
the learned Single Judge.
17. We have heard Mr. P. Viswanatha Shetty and Mr. P.S.
Patwalia, learned senior advocates appearing for the appellants and
also Mr. S.N. Bhat, learned Advocate appearing for the respondents.
18. Mr. P. Viswanatha Shetty learned senior counsel at the
very outset submitted that appellant B.T.Krishnamurthy was appointed
on reserved category and it has nothing to do with the other
appointments made by the Society. Learned counsel submitted that
the Tribunal has committed serious error of law in setting aside the
appointment of the appellant. Learned counsel further submitted that
respondent No.1 T.D. Viswanath has failed to prove that he was
regularly appointed in 1990 on the post of Lecturer in History. He did
not even examine himself before the Tribunal. Learned counsel
further submitted that the respondent No.1 has even not challenged
the appointments of Malleshappa and Siddegora made in the year
1995-1996. Nothing has been produced by respondent No.1 to show
that he was appointed either permanently or temporarily on the post of
Lecturer in the said college. In the absence of any such document,
the Tribunal and also the High Court have committed serious illegality
in directing reinstatement of respondent No.1 in service.
10Page 11
19. Mr. P.S. Patwalia, learned Senior Advocate appearing for
the Society and the College, apart from the aforesaid submissions
made by Mr. Shetty, submitted that in the year 1995 pursuant to the
advertisements issued by the College for appointment of Lecturer,
respondent No.1 participated in the selection process, but he was not
found suitable for the said post and was not selected. The said
selection was not challenged by respondent no.1. On the contrary, he
approached the Tribunal after one and half years. Learned counsel
submitted that both the Tribunal and the High Court have not correctly
appreciated the facts of the case and the law applicable thereto.
20. Mr. S.N. Bhat, learned advocate appearing for respondent
no.1 T.D. Viswanath on the other hand, submitted that the findings
recorded by the Tribunal are based on various documents and entries
made in different registers maintained by the College and, therefore,
the findings cannot be held to be perverse or without any basis.
Learned counsel submitted that the Tribunal also noticed the
interpolation made in various registers of the College to make out a
case that the said respondent was not continuously working in the said
College.
11Page 12
21. We have carefully considered the submissions made by
the learned counsel appearing on either side.
22. Indisputably, the respondent T.D. Viswanath, alleged to
have worked on the post of Lecturer in History in the year 1990 and
continued as such for a few years, but before his appointment neither
the post was advertised nor any selection process was followed. No
appointment letter was issued by the Society appointing him either
permanently or temporarily in the said post. It is also not in dispute
T.D. Vishwanath did not receive any letter of termination or relieving
order from the Society. According to him, the Society orally directed
him not to continue in the College.
23. It is also not in dispute that on 19.06.1995, the Society
issued advertisement in the newspaper for appointment on the post of
Lecturer in History and pursuant to that respondent No.1 along with
other candidates participated in the interview conducted by the
College. After the selection process and interview, respondent No.1
was not selected rather one T.S. Malleshappa was selected for the
said post. The said Malleshappa joined and continued for about a
year and thereafter he left service and joined M.Phil Course.
12Page 13
Thereafter, the Society issued another advertisement dated
03.05.1996 inviting applications from eligible candidates for the post of
lecturer and one R. Siddegora was appointed as Lecturer in History on
probation for a period of two years. Curiously enough, respondent
No.1 did not challenge the selection and appointment of the abovenamed two candidates, Malleshappa and Siddegora. Instead a writ
petition was filed by the respondent No.1 seeking regularization of his
services on the post of Lecturer in History with all consequential
benefits. The respondent No.1 ultimately approached the Tribunal.
As noticed above, the Tribunal on the basis of some entries made in
the registers maintained by the College passed the impugned order for
regularization of the services with all monetary benefits. It is worth to
mention here that the Tribunal although came to the conclusion that
the certificate produced by respondent No.1 goes to show that he was
in the College as temporary and part-time employee even then the
Tribunal held that due to passage of time the Court will be justified in
directing the College/Society to regularize his services. The Tribunal
although directed regularization as mentioned hereinabove but in the
subsequent paragraph the Tribunal further directed reinstatement of
the respondent in service. Para 43 of the order passed by the
Tribunal is quoted herein below:-
13Page 14
“The other aspect is that the appellant is out of
service. The date of his retrenchment is shown
as 22.7.1995, by the appellant, whereas the
management disputes that aspect. On the basis
of the material discussed above, I am constrained
to hold that the appellant was in service till
22.7.1995, on which date he was asked not to
come to the college again. Thus that become the
material date for decision about his
reinstatement. The appellant will be entitled to
reinstatement retrospectively from that date and
as it is shown that such a situation was created
due to acts of the management, the management
cannot absolve itself from discharging its
consequential liabilities. The consequential
liabilities to pay are loss of pay to the appellant
from that date. Thus, the appellant would also be
entitled to reinstatement in service as a lecturer in
history from 23.7.1995 and he will also be entitled
to emoluments, which he was entitled to receive.”
24. In our considered opinion, the Tribunal completely
misdirected itself in passing such an order of regularisation and
reinstatement in a case where the respondent allegedly worked in the
College as part- time Lecturer without any appointment letter and
without any selection process. Since the Society never issued any
letter of appointment a letter of termination was also not served upon
the respondent.
25. As stated above, in the absence of any appointment letter,
issued in favour of the respondent as he was temporary/part-time
14Page 15
lecturer in the College, there cannot be any legitimate expectation for
his continuing in the service.. This was the reason that when in the
years 1995 and 1996, two persons were appointed one after the other
on the post of Lecturer in History, the respondent did not challenge the
said appointments. Even assuming that the respondent was permitted
to work in the College as part-time lecturer for some period, the action
of the management of the college asking him to stop doing work
cannot be held to be punitive. The termination simplicitor is not per se
illegal and is not violative of principles of natural justice.
26. After giving our anxious consideration in the matter and
analyzing the entire facts of the case, we are of the view that the
impugned order passed by the Education Appellate Tribunal and the
High Court cannot be sustained in law and are liable to be set aside.
27. For the reasons aforesaid, these appeals are allowed and
the impugned orders are set aside.
……………………………………J.
(Surinder Singh Nijjar)
……………………………………J.
(M.Y. Eqbal)
New Delhi
April 8, 2013
15Page 16
16Page 17

LAND ACQUISITION ACT = Merely because some land was left at the relevant time, that does not give any right to the Authority to send proposal to the Government for release of the land in favour of the land owners. The impugned orders passed by the High Court directing the Authority to press the Resolution are absolutely unwarranted in law.

Page 1
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2944 OF 2013
[Arising out of SLP(C) No. 14541 of 2010]
Mahadeo (D) through LRs & Ors. …..Appellants
Versus
State of U.P. & Ors. ….Respondents
WITH
CIVIL APPEAL NO. 2945 OF 2013
[Arising out of SLP(C) No. 14741 of 2010]
 &
CIVIL APPEAL NO. 2946 OF 2013
[Arising out of SLP(C) No. 7878 of 2010]
Bimal Chand Jain (D) through LRs & Ors. …..Appellants
Versus
State of U.P. & Ors. ….Respondents
and
CIVIL APPEAL NO. 2947 OF 2013
[Arising out of SLP(C) No. 7892 of 2010]
Trilok Ram Ahuja & Ors. …..Appellants
Versus
State of U.P. & Ors. ….Respondents
J U D G M E N T
M.Y.EQBAL, J.Page 2
Leave granted.
2. These appeals are directed against the orders dated
2.12.2009 passed by a Division Bench of the Allahabad High
Court in Civil Misc. Writ Petition Nos. 7748 of 2002 and 21407 of
2002 whereby the writ petitions filed by the appellants herein
were disposed of with a direction to respondent No. 4 – Meerut
Development Authority to press its resolution dated 17.09.1997
if the said Authority is not in need of the land so acquired and
the orders dated 9.4.2010 whereby the review applications filed
against the orders dated 2.12.2009 in the said writ petitions
were rejected.
3. The facts of the case lie in a narrow compass. The
appellants filed the aforementioned writ petitions seeking the
following reliefs:
i. Issue a writ, order or direction in the nature of
mandamus commanding the respondent no. 1
to accept the proposal for withdrawing from
acquisition in view of the resolution dated
17.9.97 submitted by the Meerut Development
Authority at the earliest within a period to be
fixed by this Hon’ble Court.
ii. Issue a writ, order or direction in the nature of
certiorari quashing the entire land acquisition
proceedings in pursuance of the notification
u/s 4 dated 27.1.1990 and declaration u/s 6 of
the Act dated 7.3.90.
2Page 3
ii-a. Issue a writ, order or direction in the nature of
certiorari quashing the order/decision communicated
by letter dated 24.08.2002 (Annexure-16 to the writ
petition).
iii. Issue a writ, order or direction in the nature of
mandamus commanding the respondents not
to dispossess the petitioners from their
respective lands forcibly in pursuance of the
acquisition for declaration was issued u/s 6 of
the Act on 6.3.90.
iv. Issue a writ, order or direction in the nature of
mandamus commanding the respondents to
pay the damages for financial loss, mental
agony and pain to the petitioners in view of
section 48(2) of the Act.
v. Issue any other writ, order or direction which
this Hon’ble Court may deem fit and proper in
the facts and circumstances of the case.
vi. Award cost of the writ petition to the
petitioners.”
4. It appears that vide Notification dated 27.1.1990
under Section 4(1) of the Land Acquisition Act, 1894 (for short,
“the Act”), the State of U.P. proposed to acquire 246.931 acres
of land situated at Village Abdullapur, Pargana, Tehsil and
District Meerut. Since the land was alleged to have been
urgently required by the State, the provision of Section 17(1) of
the Act was invoked. The aforesaid land was sought to be
acquired for the purpose of construction of a
residential/commercial building under planned Development
3Page 4
Scheme by the Meerut Development Authority (for short, “the
MDA”). Since Section 17(1) of the Act was invoked, inquiry
under Section 5A of the Act was dispensed with. Thereafter,
declaration under Section 6 read with Section 17(1)&(4) of the
Act was made on 18.3.1990 which was published in a daily
newspaper. Consequently, notice under Section 9 of the Act was
issued and pursuant to that appellants are said to have filed
their objections. On 17.3.1992, respondent No. 3 – the Special
Land Acquisition Officer, Meerut passed an award. After the said
award, the appellants applied before the Land Acquisition Officer
on 24.4.1992 for making a reference under Section 18 of the
said Act and accordingly respondent No. 3 referred the matter to
the District Judge vide order dated 22.9.1997.
5. The appellants’ case is that by resolution dated
17.9.1997, respondent No. 4 – the MDA decided to withdraw the
acquisition of the land except the land measuring 42.018 acres
for which compensation was paid. The MDA is said to have
decided to de-requisition the land measuring 204.912 acres. It
appears that in 2001-2002 meetings were held and
correspondences exchanged between the authorities, the
District Magistrate, Meerut and the State Government and
ultimately the State Government decided not to accede to the
4Page 5
decision of the MDA for de-requisition of the land. The
appellants, therefore, on these facts, filed the aforementioned
writ petitions seeking the reliefs quoted hereinbefore.
6. We have heard Mr. Vijay Hansaria, learned senior
counsel appearing for the appellants and the learned Additional
Advocate General appearing for the respondent-State.
7. Learned counsel appearing for the respondent-State
at the very outset submitted that although the appellants
sought several reliefs in the writ petitions before the High Court
but the relief was confined to only a direction upon respondent
No. 4 to press the resolution dated 17.9.1997. The High Court,
therefore, by the impugned orders disposed of the writ petitions
with a direction to the Development Authority to press its
resolution if the Authority is not in need of the said land. The
impugned orders passed by the High Court dated 2.12.2009 is
reproduced hereinbelow:
“In this petition, the original owners are ……
They have not pressed other reliefs, except the relief
seeking a writ of mandamus to command the Meerut
Development Authority, Respondent No. 4 to press
the resolution dated 14.05.02, which has been
rejected by the Government. A perusal of the
rejection order reveals that rejection is not based for
other reasons, except that the land proposed to be
released under Section 48 of the Land Acquisition
Act, has been thrust upon the development authority
to sell it out so that its financial position is improved.
5Page 6
This is no reason. The acquisition under the Land
Acquisition Act is made for the public purpose if
needed. No doubt the town plan development of the
council is a public purpose done by the development
authority but the development authority when itself
says that is not needed, then the condition of
acquisition is not fulfilled as contained in the Land
Acquisition Act. Therefore reason of rejection is not
germane to the provisions of the Land Acquisition
Act. The Development Authority is directed to press
its resolution if the authority is not in need of the
said land.
The petition is accordingly disposed of.”
8. Dissatisfied with the orders passed by the High
Court, the appellants have moved these appeals by special
leave.
9. Learned senior counsel appearing for the appellants
assailed the orders passed by the High Court, firstly on the
ground that there is apparent error in the orders of the High
Court inasmuch as the appellants never confined their reliefs
only to the extent of directing the MDA to press its resolution if
the Authority is not in the need of the said land. Learned
counsel submitted that the MDA in clear terms already
expressed its opinion in the resolution dated 17.9.1997 that the
land is not required by the Authority for any development
purpose. Thus, the High Court fell in error in placing onus again
on the MDA to press for resolution. According to the learned
6Page 7
counsel, the refusal of the State Government in rejecting the
proposal of the Authority is illegal and liable to be set aside.
10. Some of the important facts which are not in dispute can
be summarized as under:
(i) Notification under Section 4 and Declaration
under Section 6 were issued for the acquisition
of 246.931 acres of the land for the purpose of
construction of residential/commercial building
under the planned Development Scheme in
the District of Meerut by the MDA;
(ii) Inquiry under Section 5A of the Act was
dispensed with since provision of Section
17(1)&(4) was invoked;
(iii) In response to the notice under Section 9(1) of
the Act, the appellant-land owners filed their
objections and finally the award under Section
11 of the Act was passed on 17.3.1992 by the
Special Land Acquisition Officer; and
7Page 8
(iv) As requested by the appellants and other land
owners, reference under Section 18 of the Act
was made on 22.9.1997.
11. The respondent-MDA has filed a detailed counter
affidavit stating inter alia that the land was acquired for Ganga
Nagar Housing Extension Scheme because of the need for
housing accommodation and to prevent unplanned growth of
construction. Notices were issued under Section 9(1) inviting
objections and after completing all the procedure award was
passed on 17.03.1992.
12. After the said award, a sum of Rs. 5.32 crores out of
the total amount of Rs.5.51 crores was deposited. The
appellants filed reference application for enhancement of
compensation in 2002. It was further stated that possession of
the land so acquired was taken by the State Government and
delivered to MDA in 2002. The MDA further stated that out of
246 acres of land, approximately 125 acres of land has already
been allotted for residential and institutional use as per the
Master Plan.
13. It is stated that the MDA has already spent Rs. 21
crores for development since 2002 which includes construction
of overhead tanks, roads, sewage treatment plant etc. It is
stated that the earlier request of MDA was withdrawn by passing
8Page 9
fresh resolution on 15.03.2002 in order to develop the entire
acquired land as Ganga Nagar Colony. The MDA further stated
that rest of the acquired land is also being developed making a
huge investment on roads, sewage and other civic amenities.
14. Lastly, it has been brought on record that some of
the appellants were not the original owners of the land at the
time when notifications under Section 4, 6 and 9 of the Act were
issued. It has further been brought to our notice that some of
the appellants are the purchasers of the land from the land
owners after the notification was issued under Section 4 of the
Act.
15. On these facts, the sole question, therefore, that
falls for consideration is as to whether merely because of
internal correspondences between the MDA and the State that
by the resolution dated 17.9.1997 the MDA took a decision to
withdraw the acquisition and to get approval from the State
Government, a writ of mandamus can be issued directing the
State or the MDA to denotify or de-requisition the land which
was acquired after following the due process of law and an
award to that effect has been passed by the Special Land
Acquisition Officer.
16. There is no dispute with regard to the settled
proposition of law that once the land is acquired and mandatory
9Page 10
requirements are complied with including possession having been
taken the land vests in the State Government free from all
encumbrances. Even if some unutilised land remains, it cannot be
re-conveyed or re-assigned to the erstwhile owner by invoking the
provisions of the Land Acquisition Act. This Court in the case of
Govt. of A.P. and Anr. vs. V. Syed Akbar AIR 2005 SC 492 held
that :-
“It is neither debated nor disputed as regards
the valid acquisition of the land in question under
the provisions of the Land Acquisition Act and the
possession of the land had been taken. By virtue of
Section 16 of the Land Acquisition Act, the acquired
land has vested absolutely in the Government free
from all encumbrances. Under Section 48 of the
Land Acquisition Act, Government could withdraw
from the acquisition of any land of which possession
has not been taken. In the instant case, even under
Section 48, the Government could not withdraw from
acquisition or to reconvey the said land to the
respondent as the possession of the land had
already been taken. The position of law is well
settled. In State of Kerala and Ors. v. M. Bhaskaran
Pillai & Anr. (1997) 5 SCC 432 para 4 of the said
judgment reads: (SCC p. 433)
“4. In view of the admitted position that the
land in question was acquired under the Land
Acquisition Act, 1894 by operation of Section
16 of the Land Acquisition Act, it stood vested
in the State free from all encumbrances. The
question emerges whether the Government
can assign the land to the erstwhile owners? It
is settled law that if the land is acquired for a
public purpose, after the public purpose was
achieved, the rest of the land could be used for
any other public purpose. In case there is no
other public purpose for which the land is
needed, then instead of disposal by way of
sale to the erstwhile owner, the land should be
10Page 11
put to public auction and the amount fetched
in the public auction can be better utilised for
the public purpose envisaged in the Directive
Principles of the Constitution. In the present
case, what we find is that the executive order
is not in consonance with the provision of the
Act and is, therefore, invalid. Under these
circumstances, the Division Bench is well
justified in declaring the executive order as
invalid. Whatever assignment is made, should
be for a public purpose. Otherwise, the land of
the Government should be sold only through
the public auctions so that the public also gets
benefited by getting a higher value.”
17. In the case of Satendra Prasad Jain & Ors. vs.
State of U.P. and Ors., AIR 1993 SC 2517, a 3-Judge Bench of
this Court after considering various provisions including Section
17 of the Act observed as under:
“14. Ordinarily, the Government can take
possession of the land proposed to be acquired only
after an award of compensation in respect thereof
has been made under Section 11. Upon the taking of
possession the land vests in the Government, that is
to say, the owner of the land loses to the
Government the title to it. This is what Section 16
states. The provisions of Section 11-A are intended
to benefit the land owner and ensure that the award
is made within a period of two years from the date of
the Section 6 declaration. In the ordinary case,
therefore, when Government fails to make an award
within two years of the declaration under Section 6,
the land has still not vested in the Government and
its title remains with the owner, the acquisition
proceedings are still pending and, by virtue of the
provisions of Section 11-A, lapse. When Section
17(1) is applied by reason of urgency, Government
takes possession of the land prior to the making of
the award under Section 11 and thereupon the
11Page 12
owner is divested of the title to the land which is
vested in the Government. Section 17(1) states so in
unmistakable terms. Clearly, Section 11-A can have
no application to cases of acquisitions under Section
17 because the lands have already vested in the
Government and there is no provision in the said Act
by which land statutorily vested in the Government
can revert to the owner.”
18. Indisputably, land in question was acquired by the
State Government for the purpose of expansion of city i.e.
construction of residential/commercial building under planned
development scheme by the Meerut Development Authority and
that major portion of the land has already been utilized by the
Authority. Merely because some land was left at the relevant
time, that does not give any right to the Authority to send
proposal to the Government for release of the land in favour of
the land owners. The impugned orders passed by the High
Court directing the Authority to press the Resolution are
absolutely unwarranted in law.
19. For the reasons aforesaid, there is no merit in these
appeals which are accordingly dismissed.
………………………………..J.
(Surinder Singh Nijjar)
………………………………..J.
(M.Y. Eqbal)
12Page 13
New Delhi,
April 08, 2013.
13

Sections 147/149/449/436/302/395/396 of the Indian Penal Code, 1860= “(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. 27Page 28 (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”- one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment — sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.”;p We have re-appraised the entire evidence of the prosecution witnesses including the eye-witnesses, namely, PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Dr. Harbir Sharma, PW-6 Jagdish Kumar, PW-7 Mohar Pal and found that their testimonies have remained unshaken except some minor discrepancies which have to be ignored. 24. In view of the aforesaid analysis of the facts and evidence on record, we reach the inescapable conclusion that the High Court correctly appreciated the evidence and reversed the findings of the trial court. 25. For the reasons aforesaid, we do not find any merit in this appeal which is accordingly dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1794 OF 2008
Lal Bahadur & Ors. … Appellant(s)
versus
State (NCT of Delhi) … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.
1. The present appeal has been filed under Section
379 of the Criminal Procedure Code, 1973 read with Section 2
of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 against the judgment and order dated
27th August, 2008 passed by the Delhi High Court in Criminal
Appeal No. 6 of 1992 reversing the order of acquittal dated 31st
October, 1990 passed by the Additional Sessions Judge, Delhi
in Sessions Case No. 12 of 1988 and convicting the appellants
under Sections 147/149/449/436/302/395/396 of the Indian
1Page 2
Penal Code, 1860 and sentencing each of them to undergo
rigorous imprisonment and fine under different sections of IPC.
2. During the pendency of this appeal, appellant No. 4
Ram Lal is stated to have died on 23rd May, 2011. Therefore,
the appeal stands abated so far as he is concerned.
3. The case of the prosecution in brief is that Harjit
Kaur (PW-1), a resident of House No. RZ-1/295, Geetanjali
Park, West Sagarpur, New Delhi, apprehensive of harm to her
family because of riots which followed the assassination of late
Prime Minister Indira Gandhi on 31st October, 1984, had sent
both her daughters and a son to her father Govind Singh’s
house at BE-7, Hari Nagar, New Delhi. In her typed complaint
(Ex. PW1/A) lodged on 7th November, 1984, she stated that a
mob including appellant No. 1 Lal Bahadur alias Lal Babu along
with appellant No. 2 Surender P. Singh and Charan, who lived
in her neighbourhood, had attacked her house and looted
household articles on 1st November, 1984 at about 9/9.30 a.m.
Fearing threats of communal violence, the complainant Harjit
Kaur and her family had taken shelter at the residence of Dr.
Harbir Sharma (PW-5) who had his house opposite to that of
2Page 3
the complainant and had remained there with her husband
(Rajinder Singh) and father-in-law (Sardool Singh) for 2-3 days.
On 3rd November, 1984, the appellants came to the house of
Dr. Harbir Sharma in the morning and protested for having
given shelter to the complainant’s family and threatened that if
the complainant and her family to whom shelter had been given
were not handed over to them, they would burn the house.
Thereupon, Dr. Harbir Sharma went out to get help from the
Military. At about 9.00 a.m., a mob of more than 500 persons,
including the appellants, came and attacked the house of Dr.
Harbir Sharma where the complainant was hiding with her
husband and father-in-law. The appellants were having one
cane of oil and iron sabbal and were leading the mob. As per
the complainant, her husband and father-in-law had taken
shelter in one of the room on the ground floor and locked
themselves, while the family of Dr. Harbir Sharma and she
herself had gone upstairs to the roof. At the time the mob was
assembling, the complainant was present on the roof of one of
the neighbours of Dr. Harbir Sharma whose house was in the
same row. As per complainant’s testimony, the mob was
3Page 4
armed with sabbals, ballams, sariyas and lathis. She stated
that the appellants hit the door of the house with iron sabbals
but the door could not be broken open. They thereupon broke
the windowpane and entered the house and set the house on
fire. The complainant’s husband and father-in-law were burnt
alive and their half burnt bodies were put in gunny bags. The
complainant’s house was also burnt. It is the prosecution’s
case that Sushil Kumar (PW-4) (brother-in-law of Dr. Harbir
Sharma), Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and
Mohar Pal (PW-7) also saw the house being set on fire and the
deceased Rajinder Singh and Sardool Singh were being
attacked with sabbals, burnt and their mortal bodies put into
gunny bags. Sushil Kumar, on first seeing Dr. Sharma’s
house being put on fire, had rushed to call Dr. Sharma who had
gone to call the police. Both of them rushed back to find the
house being burnt by the appellants and Sardoor Singh as well
as Rajinder Singh were killed. They saw the appellants using
dandas to put the bodies of the deceased in gunny bags.
However, some persons gathered there saved Dr. Sharma and
his family members and he lodged the report on 5th November,
4Page 5
1984. As per the deposition of the complainant, after the
mishap, with the help of one boy she went to Hari Nagar at her
father’s house and also to police station Janakpuri and after the
help of Gorkha Regiment was provided she returned to
Sagarpur on 3rd November, 1984 but she could not get the dead
bodies of her husband and father-in-law and her entire house
was burnt and the house of Dr. Sharma was also entirely burnt
along with household articles. On 7th November, 1984, she
made a complaint in Police Station Delhi Cantt. The FIR was
registered on 9th November, 1984. On completion of the
investigation, challan was filed against the accused-appellants
and they were charged of having committed offences under
various sections of IPC. In support of its case, the prosecution
examined as many as nine witnesses. Each of the accused
denied the incriminating circumstances put to them and stated
that they have been falsely implicated because Dr. Harbir
Sharma had enmity with them. However, none of the accused
led any evidence in defence.
4. The trial court on consideration of testimony of the
witnesses held that the prosecution has failed to prove the
5Page 6
charges levelled against the appellants beyond all reasonable
doubt and acquitted the accused appellants.
5. The trial court held firstly that delay in lodging the
FIR was not properly explained because the complainant (PW-
1) had gone to Police Station Janakpuri on 3rd November, 1984
and sought military help from there with a view to recover dead
bodies of her husband and father-in-law, but she had not
lodged the report on 3rd November, 1984. Similarly, the court
held that there was delay on the part of Dr. Harbir Sharma (PW-
5) in making the complaint to the police on 5th November, 1984
for the incident of 3rd November, 1984. The trial court also
noticed delay of 27 days in recording statements of PW-4, PW-
6 and PW-7. Secondly, the trial court held that the
complainant had made prevaricating statements regarding
presence of two accused persons i.e. appellant No.2 Surender
and appellant No. 3 Virender on 1st November, 1984 without
any corroboration as also regarding putting of the half burnt
dead bodies in the gunny bags on 3rd November, 1984,
inasmuch as she had not named accused–appellant No. 4
(Ram Lal) and appellant No. 3 (Virender Singh) in her complaint
6Page 7
(Ex.PW1/A), though they were identified in the court by her; and
even in her statement recorded second time she had stated
that she had not seen accused-appellant No. 2 Surender and
appellant No. 3 Virender on 1st November, 1984 whereas in her
first statement recorded on 21st April, 1986 she had stated that
on 1st November, 1984 accused-appellant No. 1 Lal Bahadur,
appellant No. 3 Virender and appellant No. 4 Ram Lal were
amongst the persons who had looted her house. The trial court
further noted that in her complaint (Ex. PW1/A), the
complainant had mentioned that the half burnt bodies of her
husband and father-in-law were put in gunny bags by the
accused (Lal Babu, Surender and Charan) on 3rd November,
1984, whereas in her statement before the court she stated that
she did not actually see the accused putting burnt dead bodies
of deceased into gunny bags and she only heard saying the
accused persons `put half burnt dead bodies in the gunny
bags’. Thirdly, the trial court noticed certain contradictions in
the statements of eye-witnesses, namely, Sushil Kumar (PW-4),
Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and Mohar Pal
(PW-7). The trial court noted that certain facts were not
7Page 8
mentioned in the complaint (Ex.PW-5/1) by PW-5 and the
names of two accused Ram Lal and Virender also did not find
mention therein. The trial court further observed on the basis
of contradictions pointed out in the statements that PW-5 had
not come back and witnessed the burning of his house as well
as the beating and killing of deceased persons as deposed by
him. Fourthly, the trial court observed that the prosecution
witnesses PW-4, PW-6 and PW-7 were not the actual
witnesses to the occurrence because had it been so, PW-5
would definitely have mentioned their names in Ex. PW5/1 and
held that the possibility of PW-4, PW-6 and PW-7 being
procured or to have been made to depose for PW-5 cannot be
ruled out. The trial court thus held:
“……. all these circumstances that delay of 11 days
of lodging FIR Ex. PW1/A, the delay of 2 days in
lodging complaint Ex.PW5/1, non-mention of the
names of two accused Virender and Ram Lal in the
FIR as well as in the complaint along with the
element of interestedness on the part of PWs,
coupled with the fact that statements of PW4, PW6
and PW7 have been recorded after an unjustified
and long delay of 27 days, cast a suspicion upon
the wrap and woof i.e. texture in the prosecution
story and in my opinion the prosecution has not
been able to establish its case against any of the
accused beyond reasonable doubt.
8Page 9
In view of my above discussion, I find that the
prosecution has failed to prove its case beyond all
shadows of doubt. Thus giving benefit of doubt, I
acquit all the accused persons for the offences they
have been charged. They are on bail, their bail
bonds are cancelled. Sureties are discharged. ….”
6. Against the judgment of the trial court, the State
preferred an appeal before the High Court. The Division
Bench reversed the above findings of the trial court and
convicted the accused-appellants under Sections
147/149/449/436/302/395/396, IPC and sentenced each of
them for the offences committed under aforementioned
sections of IPC.
7. It is in these circumstances that the present appeal
has been filed by the accused-appellants under Section 379 of
the Code of Criminal Procedure read with Section 2 of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 against the judgment and order of the Delhi High
Court reversing the order of acquittal passed by the trial court.
8. Mr. Prasoon Kumar, learned counsel for the
appellant-accused persons assailed the impugned judgment
passéd by the High Court as being illegal and perverse in law.
Learned counsel firstly contended that the High Court has erred
9Page 10
in law in appreciating the deposition of the eye-witnesses as the
deposition of eye-witnesses is not above suspicion and is full
of contradictions, inconsistencies and emblazonments and
further the deposition made by the alleged eye-witnesses
cannot be accepted as trustworthy and reliable. As per the
observation of trial court, as regards the statements of eyewitnesses, namely, Dr. Harbir Sharma (PW-5), Sushil Kumar
(PW-4), Jagdish (PW-6) and Mohar Pal (PW-7) it may be
pointed out that there are certain contradictions in the
statement of PW-5 and in his complaint Ex.PW-5/1. Learned
counsel then contended that the High Court has not
appreciated the contradictions in the deposition of PW-1 (Harjit
Kaur). As per the complaint Ex. PW1/A and statement of
PW-1, the incident had taken place on two dates i.e. on 1st
November, 1984 and 3rd November, 1984. On 1st November,
1984, the accused Lal Babu, Surender and one Charan who
has not been challaned by the police, having collected some
other persons, came to her house and looted the household
articles. In her statement, she has stated that she knew all the
four accused persons as they were the residents of her locality
10Page 11
and identified them in the deck, but she has not named
accused Ram Lal and Virender in Ex.PW-1/A. PW-1 is the sole
eye-witness regarding the incident which took place on 1st
November, 1984 and other prosecution witnesses related to the
incident dated 3rd November, 1984 as they have not testified to
the incident dated 1st November, 1984. Besides this, PW-1
has not named Ram Lal and Virender in her complaint to the
police on the basis of which FIR was registered. She has also
deposed that she furnished a list of articles looted by the mob
from her house but the prosecution has neither placed any list
of looted articles as alleged by PW-1 nor any recovery from any
of the accused or from any place in respect of the looted
articles has been effected by the Investigating Officer. Thus,
there is no corroboration to the testimony of PW-1 regarding the
incident of looting/dacoity, which took place on 1st November,
1984. Further, the High Court has failed to appreciate that
ingredients of Section 390 IPC are not made out at all in the
present case. The High Court did not appreciate the facts of
the case because to convict a person in a case of dacoity, there
must be a robbery committed in the first place. Further, the
11Page 12
High Court erred in law by not appreciating the
discrepancies/contradictions in the testimonies of Sushil Kumar
(PW-4), Jagdish (PW-6) and Mohar Pal (PW-7), which were
rightly appreciated by the trial court while passing the order of
acquittal. PW-4 is co-brother (Sadhu) of PW-5. He has
admitted in his cross-examination that he had worked as a
compounder. According to PW-6, he saw all the accused
persons putting the above mentioned two houses on fire,
beating and killing the deceased and also putting the dead
bodies of the deceased into gunny bags along with many other
persons who were also present. He has stated that his
statement was recorded within 4-5 days of the occurrence
whereas in fact as per the statement of I.O. (PW-9) and as per
record his statement was recorded on 30th November, 1984 i.e.
after unexplained delay of about 27 days. Learned counsel
submitted that there was no recovery of the dead bodies of
deceased, namely, Rajinder Singh and Sardool Singh.
Besides, the prosecution did not produce any vital/scientific
piece of evidence on record before the trial court that any
person was burnt alive on 3rd November, 1984 in the premises
12Page 13
bearing No. RZ-3/295, Gitanjali Park, Sagarpur, New Delhi.
The prosecution had ample opportunities to collect evidence
from the place of alleged occurrence like ashes, blood stains
etc. to prove the alleged killing and burning of two persons
alive. Learned counsel further contended that the High Court
did not appreciate the fact that there was a delay of 07 days in
lodging the FIR, as the alleged incident had taken place on two
different dates i.e. 1st November, 1984 and 3rd November, 1984.
As per the version of PW-1, Harjit Kaur, she went to call the
police/military assistance on 3rd November, 1984 and she was
present in Police Station Janakpuri, but it is an admitted fact
that FIR was not lodged by her on 3rd November, 1984 itself. It
was further submitted that the High Court also erred in not
appreciating that the explanation as a reasoning for
justification of delay is not only unjustified but also improper and
imaginary one. The reason given by the High Court regarding
delay in lodging the FIR is wrong and perverse to the facts and
circumstances of the case. It is an admitted fact that PW-1
Harjit Kaur went to call the police and she came back from the
police station in a military truck along with officials of Gorkha
13Page 14
Regiment, she had enough time to narrate the whole incident to
the police, so the denial of PW-1 that she did not narrate the
whole incident to the police on 3rd November, 1984 is
unbelievable and cannot be accepted in any manner
whatsoever. Further contention is that the High Court failed to
appreciate that the statement of eye-witnesses, PW-4, PW-6
and PW-7 were recorded after the unexplained delay of 27
days which is fatal to the prosecution case. This fact was
meticulously considered by the trial court while acquitting the
appellants from all the charges.
9. Per contra, Mr. Rakesh Khanna, learned Additional
Solicitor General, firstly contended that the findings of fact
recorded by the trial court and the conclusion arrived at are
perverse in law and, therefore, the High Court in exercise of
appellate power has rightly reversed the findings of the trial
court. Learned ASG drew our attention to the testimonies of
the prosecution witnesses and submitted that except minor
discrepancies the prosecution has been able to prove the guilt
of the accused beyond all reasonable doubts. On the question
of appreciation of evidence and the consequence of non-
14Page 15
recovery of dead bodies, the learned ASG relied upon the
decisions of this Court in Govindaraju vs. State of Karnataka,
(2009) 14 SCC 236, Lokeman Shah & Anr. vs. State of West
Bengal, (2001) 5 SCC 235 and Ramanand & Ors. vs. State
of H.P., (1981) 1 SCC 511. Learned ASG also put reliance on
the decision of this Court in the case of Delhi Administration
vs. Tribhuvan Nath & Ors., (1996) 8 SCC 250 which case also
related to the some instance of 1984 when Sikh communities
were attacked and murdered, but the dead bodies were not
recovered.
10. We have carefully considered the submissions of
learned counsel on either side and analysed the testimonies of
the witnesses. The various decisions relied upon by the
counsel have also been considered by us.
11. At the very outset, we must take notice of the fact
that the instant incident as alleged is not the solitary incident,
but such incidents took place in almost all parts of the country,
especially in Delhi where many innocent persons of one
community had been murdered and their properties had been
looted because of the assassination of the Prime Minister of
15Page 16
this country, which took place on 31st October, 1984. After
hearing the shocking news of assassination of the Prime
Minister, thousands of people forming a mob in different areas
and localities committed atrocities to the Sikh communities and
they were murdered and set ablazed. Therefore, the evidence
has to be appreciated carefully without going into the minor
discrepancies and contradictions in the evidence.
12. The High Court on the first issue regarding delay in
filing of FIR held that the circumstances of the present case are
extraordinary as the country was engulfed in communal riots,
curfew was imposed, Sikh families were being targeted by
mobs of unruly and fanatic men who did not fear finishing
human life, leave alone destroying/burning property. As
regards recording of the statements of witnesses by the police
on 30th November, 1984 after a delay of 27 days, the High
Court observed that the city was in turmoil and persons having
witnessed crimes would naturally be apprehensive and afraid in
coming forward to depose against the perpetrators, till things
settled down; that the State machinery was overworked; and in
such circumstances, delay in recording the statements of
16Page 17
witnesses cannot be a ground to reduce its evidentiary value or
to completely ignore it. The High Court further found that the
witnesses prior to the incident were the residents of the same
area and knew the assailants and it was not the case of the
appellants that the delay could have resulted in wrong
identification of the accused.
13. As regards contradictions in the testimony of
various witnesses, the High Court observed as under :
“19. ……. Harjit Kaur had mentioned that her house
was looted by a mob comprising, inter alia, of Lal
Babu and Surinder. Her subsequent mentioning of
names of other respondents does not appear to be
an improvement of such importance that her entire
eye witness account which finds corroboration by
other witnesses can be overlooked. At best here a
doubt may arise only with regard to complicity of
Virender and Ram Lal (it seems to have mistakenly
typed as Surinder in ….. trial court judgment)
because later she had identified the other
respondents Virender and Ram Lal also as having
participated in looting her house.
xxx xxx xxx
23. It is no doubt true that the entire case of the
prosecution hinges upon the neighbours and the
widow of the victim, who may be interested in
securing conviction of the accused persons but no
rule of law prescribes that conviction cannot be
based on the testimony of such witnesses. The
only requirement of law is that the testimony of
17Page 18
those witnesses must be cogent and credible. Here
it is apposite to extract the substance of the
testimony of PWs. …….
xxx xxx xxx
27. On reading of the evidence of above witnesses,
we find that the testimonies of the witnesses are
trustworthy. This we say so on account of the fact
that their evidence has been consistent and they
have also remained unshaken during their cross
examination. Thus, we do not find any reason to
discard the evidence of these witnesses in totality.
They do not vary in any manner on any material fact
and if there are any discrepancies, the same are
trivial, immaterial and could not be made the basis
of the acquittal.”
We fully endorse the view expressed by the High Court and
reject the contentions raised by the appellants.
14. On the contention of the appellants that dead
bodies were never recovered and found and as such there is no
evidence with regard to the fact that they were ever killed and
that too by the accused, the High Court referring to Rama Nand
& Ors. vs. State of H.P., (1981) 1 SCC 511 and Ram Bahadur
@ Denny vs. State, 1996 Crl.L.J. 2364, observed that it is well
settled law that in a murder case to substantiate the case of the
prosecution it is not required that dead bodies must have been
18Page 19
made available for the identification and discovery of dead body
is not sine qua non for applicability of Section 299 of IPC.
15. As regards independence of witnesses or their
procurement or their interestedness, the High Court observed
that the factors pointed out by the trial court merely bring out a
relation of doctor patient or pupil association but do not show
that all witnesses had colluded against the accused with some
ulterior motives. With regard to the allegation of enmity, no
evidence was found to have been led. The High Court on this
issue found that “there is no suggestion of animosity or inimical
relationship with Harjit Kaur. There would be no reason for Dr.
Harbir Sharma to procure the witnesses for Harjit Kaur. The
only interest of Dr. Harbir Sharma could have been to claim
compensation for the burning of the house, which was available
in any case as the burning of the house was an admitted
position. Besides this, each one of them was resident of the
same area and they were natural witnesses and not planted
ones. The High Court while allowing the appeal of the State
thus observed:
19Page 20
“40. …… we are of the view that the evidence of
even one eye witness was sufficient in itself to
implicate the respondents, namely, Surinder,
Virender, Ram Lal and Lal Bahadur for the crime
committed by them on 01.11.1984 & 03.11.1984.
Here, we have four eye witnesses, who have seen,
with their own eyes, the gruesome murder of the
deceased persons.
41. We are also not convinced that the delay in
filing FIR or delay in recording the statements of
PW4, PW6 and PW7 has vitiated the trial. Mere
delay in examination of the witnesses for few days
cannot in all cases be termed to be fatal so far as
the prosecution case is concerned when the delay
is explained. There may be several reasons.
Admittedly, the instant case relates to the riots,
which took place on account of the assassination of
late Mrs. Indira Gandhi, which led to the complete
breakdown of the law and order machinery. Chaos
and anarchy permeated every nook and corner of
the city. In the above circumstances, we feel that
the delay has been satisfactorily explained.
Whatever be the length of delay, the court can act
on the testimony of the witnesses if it is found to be
reliable. Further, the allegations of nonindependent witnesses and animosity of Dr. Sharma
with the respondents cannot cast doubts on the
eyewitness account of Harjit Kaur.”
xxx xxx xxx
43. It is not an ordinary routine case of murder,
loot and burning. It is a case where the members of
one particular community were singled out and were
murdered and their properties were burnt and
looted. Such lawlessness deserved to be sternly
dealt with as has been said by the Supreme Court
in Surja Ram vs. State of Rajasthan, 1997 CRLJ 51,
the Court has also do keep in view the society’s
20Page 21
reasonable expectation for appropriate deterrent
punishment confining to the gravity of the offence
and consistent with the public abhorrence for the
heinous crime committed by the accused. The
sentence has to be deterrent so as to send a
message for future.
44. The crime’s punishment comes out of the
same root. The accused persons should have no
cause for complaint against it. Their sin is the seed.
The terrible terror created by them is a cause for
concern for the society. Courts are empowered by
the statute to impose effective penalties on the
accused as well as even on those who are their
partners in the commission of the heinous crime.”
16. Thus it is clear that the High Court re-appreciated
the evidence of the witnesses in detail and meticulously
examined the facts and circumstances of the case in its right
perspective and recorded a finding that the prosecution has
proved the case against the appellants.
17. The contention of Mr. Kumar, learned counsel
appearing for the appellants is that as the trial court after having
appreciated the evidence in detail acquitted the appellants, the
High Court normally should not have taken a different view. We
are unable to accept the contentions made by the learned
counsel. It is well settled proposition that in an appeal against
acquittal, the appellate court has full power to review the
21Page 22
evidence upon which the order of acquittal is founded. The
High Court is entitled to re-appreciate the entire evidence in
order to find out whether findings recorded by the trial court are
perverse or unreasonable.
18. The law has been well settled by a 3-Judge Bench
judgment of this Court in the case of Sanwat Singh & Ors. vs.
State of Rajasthan AIR 1961 SC 715 (para 9), wherein this
Court observed:
“The foregoing discussion yields the following
results: (1) an appellate court has full power to
review the evidence upon which the order of
acquittal is founded; (2) the principles laid down in
Sheo Swarup’s case, 61 Ind. App 398: (AIR 1934
PC 227 (2), afford a correct guide for the appellate
court's approach to a case in disposing of such an
appeal; and (3) the different phraseology used in
the judgments of this Court, such as, (i) “substantial
and compelling reasons”, (ii) “good and sufficiently
cogent reasons”, and (iii) “strong reasons”, are not
intended to curtail the undoubted power of an
appellate court in an appeal against acquittal to
review the entire evidence and to come to its own
conclusion; but in doing so it should not only
consider every matter on record having a bearing
on the questions of fact and the reasons given by
the court below in support of its order of acquittal in
its arriving at a conclusion on those facts, but
should also express those reasons in its judgment,
which lead it to hold that the acquittal was not
justified”.
22Page 23
19. So far as the contradictions and inconsistencies in
the evidence of the prosecution witnesses, as pointed out by
the counsel for the appellants, are concerned, we have gone
through the entire evidence and found that the evidence of the
witnesses cannot be brushed aside merely because of some
minor contradictions, particularly for the reason that the
evidence and testimonies of the witnesses are trustworthy. Not
only that, the witnesses have consistently deposed with regard
to the offence committed by the appellants and their evidence
remain unshaken during their cross-examination. Mere
marginal variation and contradiction in the statements of the
witnesses cannot be a ground to discard the testimony of the
eye-witness who is none else but the widow of the one
deceased. Further, relationship cannot be a factor to affect
credibility of a witness.
In the case of State of Uttar Pradesh vs. Naresh & Ors.
(2011) 4 SCC 324, this Court observed:-
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due
to normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
23Page 24
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the
evidence can be rejected in its entirety. The court
has to form its opinion about the credibility of the
witness and record a finding as to whether his
deposition inspires confidence.
“9. Exaggerations per se do not render
the evidence brittle. But it can be one of
the factors to test credibility of the
prosecution version, when the entire
evidence is put in a crucible for being
tested on the touchstone of credibility.”
(Ed: As observed in Bibhuti Nath
Goswami v. Shiv Kumar Singh (2004) 9
SCC 186 p. 192.
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of the
witness liable to be discredited. [Vide State v.
Saravanan, (2008) 17 SCC 587, Arumugam v.
State (2008) 15 SCC 590, Mahendra Pratap Singh
v. State of U.P. (2009) 11 SCC 334, and Sunil
Kumar Sambhudayal Gupta (Dr.) v. State of
Maharashtra. (2010) 13 SCC 657.]
24Page 25
20. Much stress has been given by the learned counsel
on the non-recovery of the dead-bodies and the looted articles
when the allegation is that after killing the persons they put the
dead bodies into gunny bags. The aforesaid plea cannot in
any way improve the case of the appellants. This Court in the
case of Delhi Administration vs. Tribhuvan Nath and Ors.,
(1996) 8 SCC 250, has considered the same issue as raised by
the appellants herein. In that case, the accused were
prosecuted for committing murder and throwing the dead body
into drains or setting it ablaze. Their properties were looted and
their houses were burnt because of the assassination of Prime
Minister in 1984. After re-appreciation of the evidence, this
Court held as under:-
“5. If the evidence of the aforesaid PWs is read
as a whole, which has to be, what we found is that
on 1-11-1984, at first around 11 a.m., a mob of
about 200 people came to Block No. P-1, Sultan
Puri, which then had 30 to 35 jhuggies. Deceased
Himmat Singh and Wazir Singh used to live in those
jhuggies. The mob which came around 11 a.m. was
said to have been armed with iron rods and sticks;
but then it was not causing any damage. Rather, it
was being advised by this mob that the persons
staying in jhuggies should get their hair cut if they
wanted to save their lives. The inmates felt inclined
to accept this advice and they were in the process
25Page 26
of cutting their hair. But then another mob came
which, according to PW 11, consisted of 200-250
persons — this number has been given as 1000-
1200 by PW 2. According to PW 4 the mob
consisted of 100 persons. PW 8 did not give the
number. We are really not concerned with the
number as such. Suffice it to say that the mob was
a big one. This mob caused havoc and the
members of this mob too were armed with iron rods
and sticks. It is at the hands of this mob that,
according to the aforesaid PWs, Himmat Singh and
Wazir Singh lost their lives. Not only this, to believe
PW 4, her son Wazir Singh was burnt to death and
thrown into the adjoining nullah. PW 2 also had
stated about the mob throwing the murdered
persons in the adjoining nullah. As thousands of
persons have been so dealt with, it would be too
much to expect production of corpus delicti. We
have mentioned about this aspect at this stage itself
because one of the reasons which led the High
Court to acquit the respondents is non-production of
corpus delicti. We are afraid the High Court misread
the situation; misjudged the trauma caused.”
21. It is well settled that discovery of dead body of the
victim has never been considered as the only mode of proving
the corpus delicti in murder. In fact, there are very many cases
of such nature like the present one where the discovery of the
dead body is impossible, specially when members of a
particular community were murdered in such a violent mob
attack on Sikh community in different places and the offenders
tried to remove the dead bodies and also looted articles.
26Page 27
22. As noticed above, the finding of guilt recorded by
the High Court has been challenged by the learned counsel
mainly on the basis of minor discrepancies in the evidence. So
far the instant case is concerned, those minor discrepancies
would not go to the root of the case and shake the basic
version of the witnesses when as a matter of fact important
probabilities factor echoes in favour of the version narrated by
the witnesses. This Court in the case of Bharwada
Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217
held that much importance cannot be attached to minor
discrepancies on the following reasons:-
“(1) By and large a witness cannot be
expected to possess a photographic memory and to
recall the details of an incident. It is not as if a video
tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
(3) The powers of observation differ from
person to person. What one may notice, another
may not. An object or movement might emboss its
image on one person's mind, whereas it might go
unnoticed on the part of another.
27Page 28
(4) By and large people cannot accurately
recall a conversation and reproduce the very words
used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic
to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or
the time duration of an occurrence, usually, people
make their estimates by guess-work on the spur of
the moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from
person to person.
(6) Ordinarily a witness cannot be expected
to recall accurately the sequence of events which
takes place in rapid succession or in a short time
span. A witness is liable to get confused, or mixed up
when interrogated later on.
(7) A witness, though wholly truthful, is
liable to be overawed by the court atmosphere and
the piercing cross-examination made by counsel and
out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from
imagination on the spur of the moment. The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him — Perhaps it is a sort of a
psychological defence mechanism activated on the
spur of the moment.”
In the case of Leela Ram (dead) through Duli Chand vs.
State of Haryana & Anr., (1999) 9 SCC 525, this Court
observed:-
28Page 29
“11. The Court shall have to bear in mind
that different witnesses react differently under
different situations: whereas some become
speechless, some start wailing while some
others run away from the scene and yet there
are some who may come forward with courage,
conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any
set pattern or uniform rule of human reaction
and to discard a piece of evidence on the ground
of his reaction not falling within a set pattern is
unproductive and a pedantic exercise.
12. It is indeed necessary to note that
one hardly comes across a witness whose
evidence does not contain some exaggeration or
embellishment — sometimes there could even
be a deliberate attempt to offer embellishment
and sometimes in their over anxiety they may
give a slightly exaggerated account. 
The court
can sift the chaff from the grain and find out the
truth from the testimony of the witnesses.
Total
repulsion of the evidence is unnecessary. The
evidence is to be considered from the point of
view of trustworthiness. If this element is
satisfied, it ought to inspire confidence in the
mind of the court to accept the stated evidence
though not however in the absence of the
same.”
23. We have re-appraised the entire evidence of the
prosecution witnesses including the eye-witnesses, namely,
PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Dr. Harbir
Sharma, PW-6 Jagdish Kumar, PW-7 Mohar Pal and found
29Page 30
that their testimonies have remained unshaken except some
minor discrepancies which have to be ignored.
24. In view of the aforesaid analysis of the facts and
evidence on record, we reach the inescapable conclusion that
the High Court correctly appreciated the evidence and reversed
the findings of the trial court.
25. For the reasons aforesaid, we do not find any merit in this
appeal which is accordingly dismissed.
……………………………..J.
(P. Sathasivam)
……………………………..J.
(M.Y. Eqbal)
New Delhi,
April 8, 2013.
30Page 31
31Page 32

Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’= Even though the only independent witness Rameshwar (PW-3) who stood as a witness for recovery has not supported the prosecution and declared hostile, however, as rightly pointed out by the state counsel, he did not deny the existence of his signature on Ex.PA. ; Regarding the delay in sending the contraband for examination by the FSL, it was PW-2, who carried the samples from the Police Station to FSL at Madhuban but he was not asked any question in the cross examination, though opportunity was given to the defence. Even otherwise, FSL report Ex. P1 would show that the sample was received at the FSL in tact with the seal which tallied with the specimen seals forwarded. Accordingly, the said objection is liable to the rejected. ; Nothing has been explained or denied by the appellant in his Section 313 statement nor examined anyone as a defence witness. - once the appellant was asked by the court that he was carrying a tin in his hand and opium was recovered therefrom, the aspect of conscious possession of the contraband is presumed and in the absence of any contra evidence, there is no reason to disbelieve the prosecution version. = In the light of the materials placed by the prosecution in the form of oral and documentary evidence and in view of Section 54 of the Act and in the absence of any evidence from the accused discharging the presumption as to the possession of the contraband, we are in entire agreement with the conclusion arrived at by the trial Court and the High Court. (13) As regards the reduction of sentence, it is not in dispute that possession of 3 ½ kgs of opium involves commercial quantity and if that is so, in terms of sub-section (b) of Section 18, imprisonment shall not be less than 10 years. Admittedly, there is no enabling provision to the court for reduction of sentence by giving special or adequate reasons in the statute particularly in Section 18. Accordingly, we reject the request of the learned counsel for the appellant. (14) In the light of the above discussion, we are in entire agreement with the conclusion arrived at by the courts below. Consequently, the appeal fails and the same is dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1564 OF 2008
Mohinder .... Appellant(s)
Versus
State of Haryana ....
Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the final judgment
and order dated 04.07.2007 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No.
72-SB of 1994 whereby the High Court dismissed the appeal
preferred by the appellant herein and confirmed the order
dated 05.02.1994 passed by the Court of Additional Sessions
Judge, Sirsa in Sessions Case No. 11 of 1993 convicting him
under Section 18 of the Narcotic Drugs and Psychotropic
1Page 2
Substances Act, 1985 (in short ‘the Act’) and sentenced him
to undergo rigorous imprisonment (RI) for a period of 10
years and to pay a fine of Rs. 1 lakh, in default, to further
undergo RI for a period of two years.
2) Brief facts:
(a) According to the prosecution, on 23.08.1991 at about
1.30 p.m., S.I/SHO Dalbir Singh (PW-6), who was then posted
at P.S. Ellenabad was present at Chowki of Mamera Khurd
along with Head Constable Jagdish Rai (PW-1) and
Constables Pratap Singh and Jang Singh and one Rameshwar
(PW-3). The accused-appellant came there and on seeing
the police party, he sneaked into the field of Narma crop. He
was apprehended on suspicion by Dalbir Singh (PW-6). At
that time, the appellant was carrying a tin in his hand and on
suspecting that he was carrying narcotic substance, Dalbir
Singh (PW-6) sent a V.T. Message to DSP Ram Gobind (PW-5)
who reached the scene at about 2 p.m. Dalbir Singh (PW-6)
presented the appellant before DSP Ram Gobind (PW-5)
along with Exh. PB for conducting the search of the tin
2Page 3
carried by him in terms of the provisions of Section 50 of the
Act.
(b) On search being conducted by DSP Ram Gobind (PW-5),
3 ½ kgs of opium was found in the tin and out of the same,
200 gms. was separated from the same as sample and the
residue contraband were sealed. An FIR dated 23.08.1991
came to be registered at Police Station Ellenabad by Dilbag
Singh (PW-4) at 3.40 p.m. under Section 18 of the Act. The
case property was deposited and duly sealed. Before
reaching the Police Station, S.I. Dalbir Singh submitted a
report to the DSP Ram Gobind (PW-5) under Section 57 of
the Act.
(c) On 28.08.1991, the sample was handed over by Dilbag
Singh to constable Khazan Singh (PW-2) for being taken to
FSL, Madhuban and PW-2 delivered the said sample duly
intact on 30.08.1991 at the FSL. A report dated 20.04.1992
was received from FSL, Madhuban to the effect that the
sample was that of opium.
(d) On completion of the evidence and hearing, learned
Addl. Sessions Judge, Sirsa, by judgment and order dated
3Page 4
05.02.1994 in Sessions Case No. 11 of 1993 convicted the
appellant and sentenced him to RI for 10 years and imposed
a fine of Rs. 1 lakh, in default of payment of fine, shall
further undergo RI for a period of two years.
(e) Aggrieved by the conviction and sentence awarded by
the Addl. Sessions Judge, the appellant preferred Criminal
Appeal No. 72 (SB) of 1994 before the High Court of Punjab
and Haryana at Chandigarh. By impugned judgment dated
04.07.2007, the High Court confirmed the conviction and
sentence as recorded by the trial Court and dismissed the
appeal. Hence the present appeal by way of special leave.
(3) Heard Mr. Shubhashis R. Soren, learned counsel for the
appellant and Mr. Kamal Mohan Gupta, learned counsel for
the respondent-State.
Contentions:
(4) Mr. Soren, learned counsel for the appellant, after
taking us through the entire materials mainly contended that
the entire investigation is defective and not in accordance
with Section 50 of the Act read with Section 100 of the Code
of Criminal Procedure, 1973 (in short “the Code”). He also
4Page 5
submitted that there was a delay of 2 days in sending the
contraband for chemical analysis. He further pointed out that
there is no evidence as to conscious possession of
contraband. He also submitted that the appellant being a
rustic villager, the imposition of sentence of 10 years is on
the higher side.
(5) On the other hand, Mr. Gupta, learned counsel for the
State submitted that there is no violation of any of the
statutory provisions. Even otherwise, according to him, in
the absence of any search, there is no question of
compliance of Section 50 of the Act. He also submitted
apart from the police officers, one independent witness was
also examined. In respect of the allegation relating to delay
of two days in sending the contraband to the laboratory, it is
pointed out that in view of the fact that the container was
duly packed/sealed, the appellant has no way prejudiced and
nothing has been elicited from any of the prosecution
witnesses. He further pointed out that in view of Section 54
of the Act, it is for the appellant to discharge his burden.
5Page 6
(6) We have carefully considered the rival contentions and
perused the relevant materials.
Discussion:
(7) It is seen that the case of the prosecution is supported
by the evidence of PWs-1, 5 and 6 apart from the evidence
produced on record through PWs 2 and 4. Head Constable
Jagdish Rai, (PW-1) and I.O. Dalbir Singh (PW-6) explained
the manner in which they had seen the appellant carrying a
tin, interception and seizure of the tin containing opium. It is
also seen that immediately after the message, within 10
minutes DSP (PW-5) had reached the scene and 3 ½ kgs of
opium was recovered from the tin held by the appellant in
his hand. Even though the only independent witness
Rameshwar (PW-3) who stood as a witness for recovery has
not supported the prosecution and declared hostile,
however, as rightly pointed out by the state counsel, he did
not deny the existence of his signature on Ex.PA. 
6Page 7
(8) We have also perused the evidence of DSP Ram Gobind
(PW-5) who explained the recovery and drawing of the
sample. He also made an entry of his visit in the logbook.
Though, learned counsel for the appellant pointed out that
the prosecution was not definite where the recoveries and
writings were made either under a tree or sitting on the
road, on perusal of the evidence of PWs 1, 5 and 6, we feel
that the said discrepancies are trivial in nature and there is
no serious infirmity in the version of PWs 1, 5 and 6.
(9) Regarding the delay in sending the contraband for
examination by the FSL, it was PW-2, who carried the
samples from the Police Station to FSL at Madhuban but he
was not asked any question in the cross examination, though
opportunity was given to the defence. Even otherwise, FSL
report Ex. P1 would show that the sample was received at
the FSL in tact with the seal which tallied with the specimen
seals forwarded. Accordingly, the said objection is liable to
the rejected. 
(10) Even though it is argued that there is discrepancy as to
the quantity of sample, it is highlighted by the state counsel
7Page 8
that sample weighing 200 gms. was drawn by PW-5 himself
and the weight of the same was found to be approximately
250 gms. by the FSL. It is relevant to note that the weight at
FSL was inclusive of the container and not of the contraband
alone drawn as a sample.
(11) Regarding the absence of evidence as to conscious
possession, it is brought to our notice that 
search was
conducted by DSP leading to recovery of 3 ½ kgs of opium
from a tin retained by the appellant. 
Nothing has been
explained or denied by the appellant in his Section 313
statement nor examined anyone as a defence witness. 
As
rightly observed by the High Court, once the appellant was
asked by the court that he was carrying a tin in his hand and
opium was recovered therefrom, the aspect of conscious
possession of the contraband is presumed and in the
absence of any contra evidence, there is no reason to
disbelieve the prosecution version. 
Further, it is not the case
of the appellant that incriminating circumstances were not
put to him under Section 313 of the Code.
8Page 9
(12) In the light of the materials placed by the prosecution in
the form of oral and documentary evidence and in view of
Section 54 of the Act and in the absence of any evidence
from the accused discharging the presumption as to the
possession of the contraband, we are in entire agreement
with the conclusion arrived at by the trial Court and the High
Court. 
(13) As regards the reduction of sentence, it is not in dispute
that possession of 3 ½ kgs of opium involves commercial
quantity and if that is so, in terms of sub-section (b) of
Section 18, imprisonment shall not be less than 10 years.
Admittedly, there is no enabling provision to the court for
reduction of sentence by giving special or adequate reasons
in the statute particularly in Section 18. Accordingly, we
reject the request of the learned counsel for the appellant. 
(14) In the light of the above discussion, we are in entire
agreement with the conclusion arrived at by the courts
below. Consequently, the appeal fails and the same is
dismissed. 
9Page 10
……….…………………………J.
(P. SATHASIVAM)
 ………….…………………………J.
(M.Y. EQBAL)
NEW DELHI;
APRIL 8, 2013.
10Page 11