Supreme Court of India
AJMER SINGHversusSTATE OF HARYANA
- Citation
- 2009 INSC 191
- Decided
- 15 February 2009
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
Section 50 applies only to personal searches, lack of independent witnesses does not invalidate conviction, and the parity principle is inapplicable where co‑accused are tried separately.
Summary
Ajmer Singh was apprehended by police who, after giving him a choice under Section 50 of the NDPS Act, searched his bag and recovered 500 g of charas. He was convicted under Section 20 of the NDPS Act. On appeal he argued that the search violated Section 50, that the prosecution’s evidence lacked independent witnesses, and that the sentence should be reduced on the principle of parity with a co‑accused tried separately. The Supreme Court held that Section 50 applies only to the personal search of a person and not to bags or containers, so its compliance was not required. It further held that official witness testimony can be relied upon even without independent corroboration where reasonable efforts were made to obtain such witnesses. Finally, the parity principle applies only when co‑accused are tried together; the other accused was tried in a separate FIR and trial, so parity was inapplicable. The conviction and sentence were upheld and the appeal dismissed.
Issues considered
- The applicability of Section 50 of the NDPS Act to the search of a bag/container and the effect of its non‑compliance on the seizure and conviction.
- The sufficiency of testimony of official witnesses without corroboration by independent witnesses under the NDPS Act.
- The applicability of the principle of parity in sentencing when the alleged co‑accused were tried in separate proceedings.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 20, s. 42, s. 43, s. 50
Subjects
NDPS ActSection 50search and seizureindependent witnessprinciple of parityco‑accusedsentencingevidence evaluationconviction upheld
Judgment
[2010) 2 S.C.R. 785
AJMER SINGH A
v.
STATE OF HARYANA
(Criminal Appeal No. 436 of 2009)
FEBRUARY 15, 2009
B
[P. SATHASIVAM AND H.L. DATTU, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
s.20 - Prosecution under - Conviction by courts below c
- On appeal, conviction upheld.
s. 50 - Applicability of - In case of search and recovery
from bag, briefcase, container etc. - Held: Such case does
not come within ambit of s. 50 - The provision is applicable
only in a case of search of person. 0
Evidence - Official witness - Not corroborated by
independent witness - In a case under Narcotic Drugs and
Psychotropic Substances Act - Authenticity of - Held:
Normally in a charge under the Act, corroboration from E
independent witness is expected, but it is not inviolable rule
- The obligation to take public witness is not absolute.
Criminal Law - Principle of parity - Applicability of -
Held: The principle is applicable to the co-accused i.e. the F
accused who is involved in the same crime and must be
convicted in single trial - It is not applicable in a case where
the other accused is convicted in a separate trial arising out
of separately registered FIR.
Words and Phrases: G
'Search of person' - Meaning of, in the context of s. 50
• of Narcotics Drugs and Psychotropic Substances Act, 1985.
fll
785 H
786 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 'Co-accused' - Meaning of
The Police party, while on patrol duty apprehended
appellant accused alongwith another accused finding
their activities as suspicious. The accused were given an
option to be searched either by the Gazetted Officer or
8
the Magistrate. They opted to be searched by Gazetted
Officer. On direction of the Gazetted Officer, the bag they
were carrying was searched before him. The bag carried
by the appellant-accused was found containing 500 gms
of charas. The accused was arrested and charge-sheeted
C u/s. 20 of the Act. The other accused was tried separately.
Trial Court convicted the appellant-accused. High Court
confirmed the conviction. Hence the present appeal.
Appellant contented that his conviction was illegal in
D view of non-compliance of provision under Section 50 of
the Act; that the evidence of official witnesses was not
corroborated by independent witnesses; and that as the
other accused was awarded lesser punishment, on the
principle of parity, punishment awarded to the appellant-
E accused was not justified.
Dismissing the appeal, the Court
HELD: 1.1. The question of compliance or non-
compliance of Section 50 of the Narcotic Drugs and
F Psychotropic Substances Act, 1985 is relevant only
where search of a person is involved and the said
Section is not applicable nor attracted where no search
of a person is involved. Search and recovery from a bag,
brief case, container, etc., does not come within the ambit
G of Section 50 of the Act. [Para 13] [797-H; 798-A-B]
1.2 Applying the interpretation of the word "search
of person" to facts of present case, it is clear that the
compliance of Section 50 is not required. Therefore, the
H
AJMER SINGH v. STATE OF HARYANA 787
search conducted by the Investigation Officer and the A
evidence collected thereby, is not illegal. [Para 15] [799-
G-H; 800-A]
State of Punjab v. Baldev Singh (1999) 6 SCC 172,
followed B
Ali Mustaffa Abdul Rahman Moosa vs. State of Kera/a,
(1994) 6 SCC 569; Pooran Mal vs. Director of Inspection
(Investigating), New Delhi and Ors. (1974) 1 SCC 345; Madan
Lal vs. State of Himachal Pradesh 2003 Crl. L. J. 3868; State
of Himachal Pradesh vs. Pawan Kumar, 2005 4 SCC 350, C
relied on
2.1. It is not correct to say that the evidence of the
official witnesses cannot be relied upon as their testimony
has not been corroborated by any independent witness. 0
It is clear from the testimony of the prosecution witnesses
PW-3, PW-4 and PW-5, that efforts were made by the
investigating party to include independent witness at the
time of recovery, but none was willing. It is true that a
charge under the Act is serious and carries onerous E
consequences. The minimum sentence prescribed under
the Act is imprisonment of 10 years and fine. In this
situation, it is normally expected that there should be
independent evidence to support the case of the
prosecution. However, it is not an inviolable rule.
Therefore, in the peculiar circumstances of this case, it F
would be travesty of justice, if the appellant is acquitted
merely because no independent witness has been
produced. It may not be possible to find independent
witness at all places, at all times. The obligation to take
public witnesses is rot absolute. [Para 16] [800-B-F] G
2.2. If after makin~ effvrts which the court considered
in the circumstances of the case reasonable, the police
officer is not able to get public witnesses to associate
with the raid or arrest of the culprit, the arrest and the H
788 SUPREME COURT REPORTS [2010] 2 S.C.R. .
A recovery made would not be necessarily vitiated. The
court will have to appreciate the relevant evidence and
will have to determine whether the evidence of the police
officer was believable after taking due care and caution
in evaluating their evidence. In the present case, both the
B trial court and the High Court by applying recognized
principle of evaluation of evidence of witnesses has
rightly come to the conclusion that .the appellant was
arrested and 'Charas' was recovered from the
possession of the appellant for which he had no licence.
c [Para 16) [800-F-H; 801-A]
3.1. The principle of parity in criminal case is that,
where the case of the accused is similar in all respects
as that of the co-accused then the benefit extended to
one accused should be extended to the co-accused. For .
D applying the principle of parity both the accused must be
involved in same crime and must be convicted in single
trial, and consequently, a co-accused is one who is
awarded punishment along with the other accused in the
same proceedings. [Paras 18 and 23) [801-C-D; 804-C-D]
E
Harbans Singh v. State of Uttar Pradesh and Ors. (1982)
2 SCC 101; Akhil Ali Jehangir Ali Sayyed v. State of
Maharashtra, (2003) 2 SCC 708 - relied on.
R. v. Christie 2004 Carswell Alta 1224 Alberta Court
F of Appeal, 2004; Wahby v The Queen, (2004) WASCA 308
2004 WL 3061688; Goddard v The Queen, (1999) 21 WAR
541; R v Hildebrandt 187 A Crim R 42 2008 WL 3856330;
2008 VSCA 142; Postiglione v The Queen (1997) 189 CLR
295; 94 A Crim R 397, referred to
G
3.2. The principle of parity cannot be applied to the
present case as the record shows that the other accused
was convicted vide a separate trial arising out of a
separately registered F.l.R .. Merely because the other
H
AJMER SINGH v. STATE OF HARYANA 789
accused happened to be searched on 24.1.1996 before A
the same gazetted officer, he cannot be said to be a co-
accused in the present case. Further, the sentence of the
other accused was altered by the High Court vide a
separate judgment arising out of a separate appeal. [Para
23] (804-D-F] B
Case Law Reference:
(1999) 6 sec 112 followed Para 12
(1994) 6 sec 569 Relied on Para 12
c
(1974) 1 sec 345 Relied on Para 12
2003 Crl. L. J. 3868 Relied on Para 13
(2005) 4 sec 350 Relied on Para 14
D
(1982) 2 sec 101 Relied on Para 18
(2003) 2 sec 708 Relied on Para 19
2004 Carswell Alta 1224
Alberta Court of E
Appeal, 2004 Referred to Para 20
(2004) WASCA 308
2004 WL 3061688 Referred to Para 20
(1999) 21 WAR 541 Referred to Para 20 F
187 A Crim R 42 2008
WL 3856330 2008
VSCA 142 Referred to Para 21
(1997) 189 CLR G
295 94 A Crim R 397 Referred to Para 22
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 436 of 2009.
H
790 SUPREME COURT REPORTS [2010] 2 S.C.R.
A From the Judgment & Order dated 7.12.2007 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. 926-SB of 1997.
R.S. Dhull, Sanjay Jha and Dharam Bir Raj Vohra for the
B Appellants.
Manjit Singh, AAG and Kamal Mohan Gupta for the
Respondents.
The Judgment of the Court was delivered by
c H.L. DATTU, J. 1. This appeal, is directed against the
judgment and order of the High Court of Punjab and Haryana
in-Criminal Appeal No.926-SB of 1997 dated 7.12.2007,
whereby and where under, the High Court has upheld the
D conviction of the appellant by the Additional Sessions Judge,
Kurukhestra, vide judgment and order dated 5.11.1997/
6.11.1997 in Sessions Case No.14 of 1996, for offences
punishable under Section 20 of the Narcotics Drugs &
Psychotropic Substances Act, 1985.
E 2. The factual matrix of the case is as under : That on
24.1.1996, ASI Maya Ram accompanied by other police
officials, namely, Head Constable Raja Ram and Constables
Gian Chand and Shyam Singh was on patrol duty. The said
police party was present near the Markanda Bridge when the
F accused along with another person Randhir Singh were seen
coming from the side of lsmailabad. On seeing the police party,
the appellant and other person Randhir Singh made an attempt
to turn back and escape. However, the police over-powered
them as their activities were found suspicious. Thereafter, they
G were served with a notice under Section 50 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as 'the Act') vide memo (Ex.PD) giving an option
to them to be searched either by the Gazetted officer or the
Magistrate. They signed the memo by making the choice to be
H searched by the Gazetted officer and they were arrested by the
~.
AJMER SINGH v. STATE OF HARYANA . 791
[H.L. DATTU, J.]
Head Constable Raja Ram and C-1 Gian Chand. Both of them A
were produced before the then D.S.P., Pehowa, Shri Paramjit
Singh Ahalawat who is a Gazetted Officer, and on his direction,
the bag that they were carrying was searched before him. The
bag that was carried by the appellant on his shoulder was found
to be containing 500 grams of charas wrapped in wax paper. B
Out of that, 50 grams of charas was taken as sample.
Thereafter, the sample and residue were sealed separately
with seal 'MR' of the Investigating Officer and 'PSA' of the
D.S.P. Seal MR was handed over to HC Raja Ram while seal
'PSA' was retained by the D.S.P. himself. FIR was registered c
being Case F.l.R. No. 14 dated 24.1.1996 and the property was
taken into possession by drawing a mahazar. The rough site
plan was also prepared and the accused was arrested after
informing the grounds of arrest. The statements of witnesses
were recorded and challan was issued on receipt of the report
0
of the Chemical Examiner Exhibit PH. The accused was
charge-sheeted under Section 20 of the Act and he pleaded
not guilty and claimed trial. The other person who was also
apprehended on the same day, was also charge- sheeted and
tried separately.
E
Case of Prosecution before the Trial Court:
3. The prosecution examined Constable Balkar Singh PW-
1, MHC Som Nath PW-2, DSP Paramjit Singh Ahalawat PW-
3, Head Constable Raja Ram PW-4, ASI Maya Ram PW-5 F
and SI Dilpanjir Singh PW-6. The prosecution also got marked
the Chemical Examination Report and closed the prosecution
evidence. The accused was called upon to lead evidence in
defence, if any. The statement of the accused under Section
313 of the Criminal Procedure Code was recorded by putting G
incriminating evidence against him. Being confronted with
incriminating circumstance appearing against him, the accused
pleaded innocence and false implication.
4. The case of the appellant before the Sessions Court :
H
792 SUPREME COURT REPORTS [2010] 2 S.C.R.
A (a) that there was no strict compliance of the Section
·50 of the Act.
(b) independent witnesses not joined and assbcia"ted
during the search.
B (c) that the accused was falsely implicated in the case.
Decision of Sessions Court:
5. The Additional Session Judge has observed that the
C accused was given an option, whether he should be searched
by a Gazetted officer or a Magistrate and after obtaining his
option, he was produced before Deputy Superintendent of
Police, who is a Gazetted Officer and on his direction the
accused was searched and, therefore, there is compliance of
Section 50 of the Act. Secondly, the prosecution· has s~own that
D there were enough.efforts taken by the Investigation Officer to
implead independent witness. Thirdly, there. has. been n~
missing link in the evidence and thus the prosecution has been
able to prove the case beyond reasonable doubt that th~
accused "retained in his conscious possession 500 grams. of
E charas without any permit or license on 24.1.1996". Thus, the
accused was held guilty under Section 20 of the Act and was
convicted vide judgment dated 5.11.1996. The accused was
sentenced to undergo rigorous imprisonment for a period of ten
years and a fine of Rs.1,00,000/-(Rupees one lac). In default
F of payment of fine, to further undergo rigorous imprisonment for
another one year.
Appeal before the High Court:
6. Feeling aggrieved by the decision of Additional Session
G Judge, Kurukshetra, the accused preferred Criminal Appeal
No.926-SB of 1997 before the High Court of Punjab. and
Haryana.
·7. Apart from reiterating the contentions canvassed before
H the learned Sessions Judge, the learned counsel for the
AJMER SINGH v. STATE OF HARYANA 793
[H.L. DATIU, J.]
accused-appellant had also contended that there was delay of A
15 days in sending the sample for chemical examination to
FSL, Madhuban (Kamal) and no explanation is given by the
prosecution for the delay caused. The High Court while
considering this issue has concluded that the delay is properly
explained by the prosecution. It has further observed that, the B
statement of the witnesses and the report of the FSL,
Madhuban shows that the sample was received in sealed cover
and there was no tampering of the sample, and therefore, the
said FSL, Madhuban Report must be held to have full
evidentiary value. c
Appeal:
8. Before us the learned counsel for the appellant
contended that the prosecution has failed to establish the guilt
of the accused ; that the conviction and sentence of the D
appellant is illegal in view of failure to observe the safeguards,
while conducting search and seizure, as provided under Section
50 of the Act ; that the prosecution has not joined any
independent witnesses to prove the fact of recovery of 'Charas'
from the possession of the accused ; that the principle of parity E
requires the awarding of lesser punishment as has been done
in the case of co-accused Randhir Singh.
9. In order to appreciate the contention raised by the
learned counsel appearing for appellant, it is necessary to
F
notice Section 50 of the Act. It reads:
"Conditions under which search of persons shall be
conducted. (1) When any officer duly authorised under
Section 42 is about to search any person under the
provisions of Section 41 , Section 42 or Section 43, he G
shall, if such person so requires, take such person without
unnecessary delay to nearest Gazetted Officer of any of
the departments mentioned in Section 42 or to the nearest
Magistrate.
H
794 SUPREME COURT REPORTS [201 O] 2 S.C.R.
A (2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer
or the Magistrate referred to in sub-Section (1 ).\
(3) The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reasonable
B
ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a
female."
c
10. Section 43 of the Act empowers an officer referred to
in Section 42 to conduct search and seizure and arrest in public
places. The provision reads as under:
"Power of seizure and arrest in public pla~es. Any officer
D
of any of the departments mentioned in Se9tion 42 may-
(a) seize, in any public place or in transit, any narcotic drug
or psychotropic substance in respect of which he has
reason to believe an offence punishable under Chapter IV
E has been committed, and, along with such drug or
substance, any animal or conveyance or article liable to
confiscation under this Act, and any document or other
article which he has reason to believe may furnish
evidence of the commission of an offence punishable
F under Chapter IV relating to such drug or substance;
(b) detain and search any person whom he has reason to
believe to have committed an offence punishable under
Chapter IV, and, if such person has any narcotic drug or
psychotropic substance in his possession and such
G possession appears to him to be unlawful, arrest him and
any other person in his company.
Explanation.-For -the purposes of this Section, the
expression "public place" includes any public conveyance,
H
AJMER SINGH v. STATE OF HARYANA 795
[H.L. DATTU, J.]
hotel, shop, or other place intended for use by, or A
accessible to the public."
11. Section 42 of the Act reads as under :
"Power of entry, search, seizure and arrest without warrant
or authorisation. B
(1) Any such officer (being an officer superior in rank to a
peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any
other department of the Central Government or of the c
Border Security Force as is embowered in this behalf by
general or special order by the Central Government, or any
such officer (being an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs control, excise,
police or any other department of a State Government as
0
is empowered in this behalf by general or special order
of the State Government, if he has reason to believe from
personal knowledge or information given by any person
and taken down in writing, that any narcotic drug, or
psychotropic substance, in respect of which an offence
E
punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of
the commission of such offence is kept or concealed in
any building, conveyance or enclosed place, may, between
sunrise and sunset,-
F
(a) enter into and search any such building, conveyance
or place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
G
(c) seize such drug or substance and all materials used in
the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to
be liable to confiscation under this Act and any document
or other article which he has reason to believe may furnish H
796 SUPREME COURT REPORTS [2010] 2 S.C.R.
A evidence of the commission of any offence punishable
under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a
search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or
B facility for the escape of an offender, he may enter and
search such building, conveyance or enclosed place at any
time between sunset and sunrise after recording the
grounds of his belief,
c (2) Where an officer takes down any information in writing
under sub-Section (1) or records grounds for his belief
under the proviso thereto, he shall forthwith send a copy
thereof to his immediate official superior."
12. The object, purpose and scope of Section 50 of the
0
Act was the subject matter of discussion in number of decisions
of this Court. The Constitution Bench of five Judges of this
Court in the case of State of Punjab v. .Baldev Singh, [(1999)
6 sec 172], after exhaustive consideration of the decision of
this court in the case of Ali Mustaffa Abdul Rahman Moosa
E vs. State of Kera/a, [(1994) 6 SCC 569] and Pooran Mal vs.
Director of Inspection (Investigation), New Delhi & Ors., [(1974)
1 sec 345], have concluded in para 57 :
(I) When search and seizure is to be conducted under
F the provision of the Act, it is imperative for him to
inform the person concerned of his right of being
taken to the nearest gazetted officer or the nearest
Magistrate for making search.
(II) Failure to inform the accused of such right would
G cause prejudice to an accused.
(Ill) That a search made by an empowered officer, on
.prior information, without informing the accused of
such a right may not vitiate trial, but would rende_r
H
AJMER SINGH v. STATE OF HARYANA 797
[H.L. DATIU, J.]
th~ recovery of the illicit article suspect and vitiate A
the conviction and sentence of an accused, where
the conviction is solely based on the possession of
the illicit article, recovered from his person, during
such search.
B
(IV) The investigation agency must follow the procedure
as envisaged by the statute scrupulously and failure
to do so would lead to unfair trial contrary to the
concept of justice.
(V) That the question as to whether the safeguards c
provided in Section 50 of the Act have been duly
observed would have to be determined by the court
on the basis of the evidence at the trial and without
giving an opportunity to the prosecution to establish
the compliance of Section 50 of the Act would not D
be permissible as it would cut short a criminal trial.
(VI) That the non compliance of the procedure i.e.
informing the accused of the right under sub-Section
(1) of Section 50 may render the recovery of E
contraband suspect and conviction and sentence of
an accused bad and unsustainable in law.
(VII) The illicit article seized from the person of an
accused during search conducted without
complying the procedure under Section 50, cannot F
be relied upon as evidence for proving the unlawful
possession of the contraband.
13. The learned counsel for the appellant contended that
the provision of Section 50 of the Act would also apply, while G
searching the bag, brief case etc., carried by the person and
its non-compliance would be fatal to the proceedings initiated
under the Act. We find no merit in the contention of the learned
counsel. It requires to be noticed that the question of compliance
or non-compliance of Section 50 of the N.D.P .S. Act is relevant H
798 SUPREME COURT REPORTS [2010] 2 S.C.R.
A only where search of a person is involved and the said Section
is not applicable nor attracted where no search of a person is
involved. Search and recovery from a bag, brief case, container,
etc., does not come within the ambit of Section 50 of the
N.D.P.S. Act, because firstly, Section 50 expressly speaks of
B search of person only. Secondly, the Section speaks of taking
of the person to be searched by the Gazetted Officer or
0
Magistrate for the purpose of search. Thirdly, this issue in our
considered opinion is no more res-integra in view of the
observations made by this court in the case of Madan Lal vs.
c State of Himachal Pradesh 2003 Crl.L.J. 3868. The Court has
observed:
"A bare reading of Section 50 shows that it only applies
in case of personal search of a person. It does not extend
to search of a vehicle or a container or a bag or premises
D (See Kalema Tumba vs. State of Maharashtra and Anr.
(JT 1999 (8) SC 293), State of Punjab vs. Baldev Singh
(JJ 1994 (4) SC 595), Gurbax Singh vs. State of Haryana
(2001 (3) SCC 28). The language of section is implicitly
clear that the search has to be in relation to a person as
E contrast to search of premises, vehicles, or articles. This
position was settled beyond doubt by the Constitution
Bench in Baldev Singh's case (supra). Above being the
position, the contention regarding non-compliance of
Section 50 of the Act is also without any substance."
F
14. In State of Himachal Pradesh vs. Pawan Kumar,
[2005 4 SCC 350], this Court has stated:
"A bag, briefcase or any such article or container,
etc. can, under no circumstances, be treated as body of a
G human being. They are given a separate name and are
·identifiable as such. They cannot even remotely be treated
to be part of the body or a human being. Depending upon
the physical capacity of a person, he may carry any
number of items like a bag, a briefcase, a suitcase, a tin
H box, a thaila, a jhola, a gathri, a holdall, a carton etc. of
AJMER SINGH v. STATE OF HARYANA 799
[H.L. PATTU, J.]
varying size, dimension or weight. However, while carrying A
or moving along with them, some extra effort or energy
would be required. They would have to be carried either
by the hand or hung on the shoulder or back or placed on
the head. In common parlance it would be said that a
person is carrying a particular article, specifying the B
manner in which it was carried like hand, shoulder, back
or head, etc. Therefore, it is not possible to include these
articles within the ambit of the word "person" occurring in
Section 50 of the Act."
After discussion on the interpretation of the word C
'person', this Court concluded:
"that the provisions of section ·50 will come into play
only in the case of personal search of the accused and not
of some baggage like a bag, article or container, etc. D
which (the accused) may be carrying"
The court further observed :
"In view of the discussion made, Section 50 of the Act can
have no application on the facts and circumstances of the E
present case as opium was allegedly recovered from the
bag, which was being carried by the accused."
15. It appears from the evidence on record that the
accused was confronted by ASI Maya Ram and other police F
officials on 24.1.1996 and he was informed that he has the right
to either be searched before the Gazetted Officer or before a
Magistrate and the accused chose the later. Thereafter, the
accused was taken to the DSP, Pehowa, Shri Paramjit Singh
Ahalawat and as directed by him, the bag carried by accused G
on his shoulder was searched and the charas was found in that
bag. Thus, applying the interpretation of the word "search of
person" as laid down by this court in the decision mentioned
above, to facts of present case, it is clear that the compliance
of Section 50 of the Act is not required. Therefore, the search
H
800 SUPREME COURT REPORTS (201 O] 2 S.C.R.
A conducted by the investigation officer and the evidence
collected thereby, is not illegal. Consequently, we do not find
any merit in the contention of the learned counsel of the
·appellant as regards the non-compliance of Section 50 of the
Act.
B
16. The learned Counsel for the appellant has submitted
that the evidence of the official witness cannot be relied upon
as their te~timony, has not been corroborated by any
independent witness. We are unablr to agree with the said
C submission of the learned Counsel. It is clear from thr testimony
of the prosecution witnesses PW-3 Paramjit Singh Ahalwat,
D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-
5 Maya Ram, which is on record, that efforts were made by the
investigating party to include independent witness at the time
of recovery, but none was willing. It is true that a charge under
D the Act is serious and carries onerous consequences. The
minimum sentence prescribed under the Act is imprisonment
of 10 years and fine. In this situation, it is normally expected
that there should be independent evidence to support the case
of the prosecution. However, it is not an inviolable rule.
E Therefore, in the peculiar circumstances of this case, we are
satisfied that It would be travesty of justice, if the appellant is
acquitted merely because no independent witness has been
produced. We cannot forget that it may not be possible to find
independent witness at all places, at all times. The obligation
F to take public witnesses is not absolute. If after making efforts
which the court considered in the circumstances of the case
reasonable, the police officer is not able to get public witnesses
to associate with the raid or arrest of the culprit, the arrest and
the recovery made would not be necessarily vitiated. The court
G will have to appreciate the relevant evidence and will have to
determine whether the evidence of the police officer was
believable after taking due care and caution in evaluating their
evidence. In the present case, both the trial court and the High
Court by applying recognized principle of evaluation of evidence
H of witnesses has rightly come to the conclusion that the
AJMER SINGH v. STATE OF HARYANA 801
[H.L. DATTU, J.]
appellant was arrested and Charas was recovered from the A
possession of the appellant for which he had no licence. We
find no good reason to differ from that finding.
17. The learned counsel for the appellant further contends
that the sentence of ten years rigorous imprisonment deserves 8
to be modified and the accused deserves to be acquitted on
the ground of parity as the sentence of other accused Randhir
Singh, who was searched on 24.1.1996 and convicted by the
additional Session Judge for being in possession of one
Kilogram of charas, without any permit or license, has been C
reduced to that already suffered by him.
18. The principle of parity in criminal case is that, where
the case of the accused is similar in all respects as that of the
co-accused then the benefit extended to one accused should
be extended to the co-accused. With regard to this principle, it D
is important to mention the observation of this court in the case
of Harbans Singh v. State of Uttar Pradesh and Ors., [(1982)
2 sec 1O1]. In that case it was held, that, in view of
commutation of death sentence of one of the accused, who was
similarly placed as that of appellant, award of death sentence E
to appellant was unjustified and, hence, the death sentence of
the appellant was stayed till the decision of the President on
commutation of sentence. An important observation of this
Court on the point need to be noticed at this stage:
F
"it will be a sheer travesty of justice and the course of justice
will be perverted, if for the very same offence, the petitioner
has to swing and pay the extreme penalty of death
whereas the death sentence imposed on his co-accused
for the very same offence is commuted to one of life
imprisonment and the life of the co-accused is shared." G
19. In the case of Akhil Ali Jehangir Ali Sayyed v. State of
Maharashtra, [(2003) 2 SCC 708], this Court maintained that
as the second accused was placed on the same situation as
the appellant, Article 21 of the Constitution would not permit this H
802 SUPREME COURT REPORTS [201 O] 2 S.C.R.
A court to deny the same benefit to the second accused.
20. The Court of Appeal Albert, Canada in R. v. Christie
[2004 Carswell Alta 1224 Alberta Court of Appeal, 2004]
discussed the meaning of the principle in connection with
sentencing in criminal cases. The Court of Appeal stated:
8
"40. Parity is a principle which must be taken into
account in any sentence, and particularly where the offence
was a joint venture. "J:here will, of course, be cases where
the circumstances of the co-accused are sufficiently
c different to warrant significantly different sentences, such
as where one co-accused has a lengthy related criminal
record or played a much greater role in the commission
of the offence."
D Thus, expressing its view on 'parity in sentencing' the Court
observed:
"43. What we must strive for is an approach to
sentencing whereby sentences for similar offences
committed by similar offenders in similar circumstances
E are understandable when viewed together, particularly in
cases involving joint ventures."
Also the observation of the Court of Appeal Alberta in the
case of Wahby v The Queen, [(2004) WASCA 308 2004 WL
F 3061688] whereby, the Court quoted the explanation given in
the case of Goddard v The Queen, [(1999) 21 WAR 541], is
relevant for the discussion in present case:
"In considering the application of the principle, all the
circumstances of the case are to be taken into account;
G those concerned with the commission of the offence and
those which are personal to the offender before the court
and the co-offender. Where there are differences, as
almost inevitably there will be, true parity will be produced
by different sentences, each proportionate to the criminal
H
AJMER SINGH v. STATE OF HARYANA 803
[H.L. DATTU, J.]
culpability of each offender, bearing in mind, as is ofte~ A
said but is worth repeating, that sentencing is not and
should not be a process involving a search for
mathematical precision, but is an act of discretion
informed by the proper application of sentencing principles
to the particular case. Inevitably there will be a range of B
appropriately proportionate sentences which may be
passed for the offence before the court."
21. The Court of Appeal of the Supreme Court of Victoria,
Australia in the case of R v Hildebrandt [1~7 A Crim R 42 C
2008 WL 3856330; [2008] VSCA 142] observed:
"Judicial expositions of the meaning of the parity principle
are not entirely uniform. The term "the parity principle" is
used in at least two senses in the relevant authorities. First,
to express the recognition that like cases should be D
treated alike (itself an emanation of equal justice).
Secondly, the phrase is used to describe the requirement
to consider the "appropriate comparability" of co-offenders,
and in that sense, comprehends the mirror propositions
that like should be treated alike, and that disparate E
culpability or circumstances may mandate a different
disposition."
22. In the case Postiglione v The Queen [(1997) 189 CLR
295; 94 A Crim R 397] Dawson and Gaudron JJ stated:
F
"The parity principle upon which the argument in this Court
was mainly based is an aspect of equal justice. Equal
justice requires that like should be treated alike but that, if
there are relevant differences, due allowance should be
made for them In the case of co-offenders, different G
se.ntences may reflect different degrees of culpability or
their different circumstances. If so, the notion of equal
justice is not violated ... Discrepancy or disparity is not
simply a question of the imposition of different sentences
for the same offence. Rather, it is a question of due H
804 SUPREME COURT REPORTS (2010] 2 S.C.R.
A proportion between those sentences, that being a matter
to be determined having regard to the different
circumstances of the co-offenders in question and their
different degrees of criminality."
The Court, therefore, concluded the principle to mean:
B
" ...... it the concept simply is that, when two or more co-
offenders are to be sentenced, any significant disparity in
their sentences should be capable of a rational
explanation."
c
23. What can be inferred from the above decision is, that
for applying the principle of parity both the accused must be
involved in same crime and must be convicted in single trial,
and consequently, a co-accused is one who is awarded
0 punishment along with the other accused in the same
proceedings. However, we are unable to apply the principle of
parity to the present case as the record show that the accused
Randhir Singh was convicted vide a separate trial arising out
of a separately registered F.l.R. Merely because the accused
E Randhir Singh happened to be searched on 24.1.1996 before
the same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit
Singh Ahalawat, he cannot be said to be a co-accused in the
present case. Further, the sentence of accused Randhir Singh
was altered by the Punjab and Haryana High Court vide a
F separate judgment dated 3.12.2002 arising out of a separate
appeal being Criminal Appeal No.855-57 of 1999. Therefore,
we do not find any merit in the contention canvassed by learned
counsel for the appellant.
24. In view of the aforesaid findings, we do not find any
G infirmity in the impugned order of the High Court. Accordingly,
the present appeal fails and is dismissed.
K.K.T. Appeal dismissed.
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