JARNAIL SINGHversusSTATE OF PUNJAB

                        [2011] 2 S.C.R. 888


A                        JARNAIL SINGH
                                 v.
                       STATE OF PUNJAB
               (Criminal Appeal No. 1960 of 2009)

                       FEBRUARY 11, 2011
B
      [B. SUDERSHAN REDDY AND SURINDER SINGH
                     NIJJAR, JJ.]

        Narcotic Drugs and Psychotropic Substances Act, 1985:
c
         s.50 - Scope, ambit and applicability of- Held: S.50 can
    be invoked only in cases where the drug/narcotic is recovered
    as a consequence of body search of the accused - In case,
    the recovery of the narcotic is made from a container being
0   carried by an individual, the provisions of s.50 would not be
    attracted.

       Opium seized from accused - Gap of 12 days between
  the seizure and the sending of opium sample to the Chemical
  examiner - Held: On facts, the delay in sending the samples
E was not fatal to the prosecution case - There was no infirmity
  in the link evidence - Mere delay in sending the sample to
  the Chemical Examiner not sufficient to conclude that the
  sample was tampered with - Report of the Chemical f=xaminer
  indicated that the seals were intact when the sample was
F received and tallied with the sample impression of the seal -
  Code of Criminal Procedure, 1973 - s.293.

        Evidence Act, 1872:

      s.25 - Offence under the NDPS Act - Accused
G apprehended by police party - Consent statement made by
  accused expressing his confidence to be searched in
  presence of Police Inspector- Whether inadmissible u/s.25
  - Held: The consent statement signed by the accused was

H                                888
        JARNAIL SINGH v. STATE OF PUNJAB                889


 not used as a confession, iherefore, the bar under s.25 was A
 not applicable - No confession was made in this case through
 the consent given by the accused with regard to any of the
 ingredients of the offence with which he was subsequently.
 charged.
                                                               B
      Independent witness - Non-examination of - Effect -
 Held: Merely because the prosecution did not examine any
 independent witness, would not necessarily lead to the
:'conclusion that the accused had been falsely implicated - On
 facts, the prosecution offered a plausible explanatibn with C
  regard to the non-joining of independent witnesses.

     Constitution of India, 1950 - Article 136 - Jurisdiction
and power of Supreme Court under - Held: An appeal under
Article 136 of the Constitution cannot be converted into a third
appeal on facts - Though the jurisdiction and the powers of D
the Supreme Court underArticle 136 are very wide, even then,
interference with concurr~nt findings of fact would be an
exception and not the rule.

    The appellant was apprehended when he displayed           E
hesitation on seeing a police party and tried to run away.
1.75 Kgs of contraband (opium) was recovered from a
bag (thaill) being carried by the appellant. The appellant
could not produce any valid licence or permit for
possession of the said opium.
                                                              F
    The trial court convicted the appellant under Section
18 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (NDPS Act) and sentenced him to undergo
rigorous imprisonment for ten years. The conviction and
sentence was. affirmed by the High Court.                 G
    In the present appeal, the appellant challenged his
conviction on various grounds, viz. (1) that there were so
many independent witnesses and yet only police officials
were examined as prosecution witnesses; (2) that the          H
    890      SUPREME COURT REP.ORTS            [2011) 2 S.C.R.

A Court below did not consider the statement of the
  appellant as recorded under Section 313 CrPC; (3) that
  the mandatory provision in Section 50 of the NDPS Act
  was not followed; the appellant was never given any
  option nor taken to the nearest Gazetted officer or
B Magistrate for his search and (4) that there was delay of
  twelve days in sending the contraband sample for
  Chemical Examination for which no reasonable
  justification was given by the prosecution.

          Dismissing the appeal, the Court
c
      HELD:1. An appeal under Article 136 of the
  Constitution cannot be converted into a third appeal on
  facts. Though the jurisdiction and the powers of this court
  und~r Article 136 are very wide, even then, interference
D with concurrent findings of fact would be an exception
  and not the rule. In the instant case, the trial Court as also
  the High Co:.::1 meticulously examined and re-examined
  the entire evidence. On such close scrutiny, both the
  courts concurrently found that the prosecution had
E proved its case beyond reasonable doubt. [Para 8) [898-
  G)

        Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC
    211 - referred to.

F      2.1. Merely because the prosecution did not examine
  any independent witness, would not necessarily lead to
  the conclusion that the appellant was falsely implicated.
  It was clearly a case where police personnel had noticed
  the odd behavior of the appellant when he was walking
G towards them on a path which led to the village. It was
  the display of hesitation by the appellant on sighting the
  police party that PW5 (ASI) became suspicious. On
  seeing the police personnel, the appellant tried to run
  away from the scene. It was not a case where the
H prosecution claimed that the appellant was apprehended
                 '
        JARNAIL SINGH v. STATE OF PUNJAB              891


 on the basis of any earlier information having been given A
 by any secret informer. It was also not a case of trap. In
 such circumstances, it would not be possible to hold that
 the appellant was falsely implicated. [Para 9] [900-A-D]
       2.2. The prosecution has offered a plausible 8
  explanation with regard to non-joining of the independent .
  witnesses. It was clearly stated by PWS that the path on
  which the appellant was apprehended was not frequently
  used by the public. In fact, efforts were made to bring a
  member of Panchayat or Sarpanch of the village. C
  However, the Head Constable who had been sent,
  reported that none of the villagers were prepared to join
  as independent witnesses. This reluctance on the part of
  the villagers is neither strange nor unbelievable.
  Generally, people belonging to the same village would
  not unnecessarily want to create bad relations/enmity D
· with another villager. Especially when such a person
  would be feeling insecure, having been accused of
  committing a crime. [Para 10] [900-E-F]
      3. It cannot be said that the courts below ignored the E
 plea of the appellant under Section 313 CrPC without any
 basis. According to the appellant the police had dug up
 his house and the courtyard and nothing incriminating
 was found. This was sought to be supported by the
 evidence given by DW1, the Ex-Sarpanch of the village. F
 Both the courts below correctly concluded that such
 evidence cannot be believed as DW1 apparently a·ppeared
 for the first time as a witness in court five years after the
 incident. Prior to the appearance in court, DW1 did not
 make any complaint in writing either to the police G
 authorities or to the civil administration. Being the Ex-
 Sarpanch of the village, he can be expected to act with
 responsibility. There is no material to show that he made
 any efforts to complain about the high handed behaviour
 of the police. Both the courts below rightly discarded the H
    892    SUPREME COURT REPORTS              (2011] 2 S.C.R.

A evidence of DW1. [Para 11] [900-G-H; 901-A-B-C]

      4.1. PW4 (Inspector) clearly stated that the option (of
  search in the presence of a Gazetted Officer or a
  Magistrate) was duly given to the appellant. The appellant
8 had, in fact, signed on the consent statement expressing
  his confidence to be searched in presence of the
  aforesaid witness. Similarly, PW5 also stated that before
  effecting the search, the accused/appellant was given the
  necessary option as to whether he wanted to be
C searched before a Gazetted Officer or a Magistrate. This
  witness also stated that the appellant reposed his
  confidence in Inspector PW4. In such circumstances, it
  cannot be held that there was non-compliance with
  Section 50 of the NDPS Act. [Para 12.1] [901-D-E-F-G]

D      4.2. This apart, it is accepted that the narcotic/opium
  was recovered from the bag (thaili) which was being
  carried by the appellant. In such circumstances, Section
  50 would not be applicable. The aforesaid Section can be
  invoked only in cases where the drug/narcotic/NDPS
E substance is recovered as a consequence of the body
  search of the accused. In case, the recovery of the
  narcotic is made from a container being carried by the
  individual, the provisions of Section 50 would not be
  attracted. It has come in evidence that although the body
F search of the appellant was conducted but no recovery
  of any narcotic was made. The body search only led to
  the recovery of Rs.25/-from his pocket. [Para 12.2] [901-
  H; 904-B-C; 902-A]
       Kalema Tumba v. State of Maharastra (1999) 8 SCC
G 257: Megh Singh v. State of Punjab (2003) 8 SCC 666:
  Himacha/ Pradesh v. Pawan Kumar (2005) 4 SCC 350 -
  relied on.

      5. The submission made by the appellant that the
H consent statement made by him was inadmissible under
       JARNAIL SINGH v. STATE OF PUNJAB              893


Section 25 of the Indian Evidence Act, 1872, cannot be A
accepted. The consent statement signed by the appellant
was not used as a confession, therefore, the bar under
Section 25 would not be applicable. A statement in order
to be treated as a confession must either admit in terms
of an offence, or at any rate substantially all the facts B
which constitute the offence. No confession was made
in this case through the consent given by the appellant
with regard to any of the ingredients of the offence with
which he was subsequently charged. [Para 13] [904-D-E]

     6..1. The trial court as well as the High Court, on
                                                            c
examination of the entire material, concluded that there
was sufficient independent evidence produced by the
prosecution regarding the completion of link evidence.
Therefore, the delay of 12 days in sending the sample       d
parcel to the office of Chemical Examiner pales into
insignificance. Mere delay in sending the sample of the
narcotic to the office of the Chemical Examiner would not
be sufficient to conclude that the sample has been
tampered with. In the instant case, there is sufficient
evidence to indicate that the delay, if any, was wholly     E
unintentional. [Para 14] [904-F-G-H; 905-A]

     6.2. The trial court as well as the High Court, on
examination of the evidence on record, concluded that
the case property was handed over by PW4, Investigating F
Officer to the SHO Inspector (PW3). This witness checked
the case property and affixed his own seal bearing
impression 'RS' on the case property as also on the
sample impression of the seal. The case property was
deposited with MHC on the same day who appeared as G
PW1 in court and tendered his affidavit to the effect that
the case property including the sample parcel and the
specimen impression of the seal, duly sealed and intact
was deposited with him by PW4. He also stated that he
handed over the sample parcel, duly sealed and sample H
    894      SUPREME COURT REPORTS              [2011] 2 S.C.R.


A impression of seal to a Constable for depositing the same
  in the office of Chemical Examiner. It was further stated
  that none had tampered with the aforesaid case property
  and the seal which remained in his custody. He ultimately
  deposited the case property in the office of Chemical
B Examiner on the same day and tendered receipt. This
  apart, there is a report of the Chemical Examiner which
  indicates that the seals were intact when the sample was
  received and tallied with the sample impression of the
  seal. Such a report of the Chemical Examiner would be
c admissible under Section 293 of the CrPC. Considering
  the aforesaid clear evidence, it cannot be said that there
  was any infirmity in the link evidence merely because
  there was a delay of few days in sending the sample to
  the office of the Chemical Examiner. [Para 14) (905-D-H;
D 906-A-B]
         Balbir Kaur v. State of Punjab (2009) 15 SCC 795 -
    relied on.

      7. On consideration of the entire material on the
E record, it is clear that the trial court as well as the High
  Court concurrently found the appellant guilty. There is no
  perversity or any miscarriage of justice in the findings so
  recorded. [Para 15) (906-C]
                        Case Law Reference:
F
          c2oos) 6 sec 211        referred to         Para 8
          (1999) a sec 257        relied on           Para 12
          (2003) a sec 666        relied on            Para 12
G         (2005) 4 sec 350        relied on            Para 12
          (2009) 15 sec 795       relied on.           Para 14
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1960 of 2009.
H
        JARNAIL SINGH v. STATE OF PUNJAB                 · 895


    From the Judgment & Order dated 12.05.2008 of the High       A
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
590-SB of 1999.

    Ujjal Singh, J.P. Singh, R.C. Kaushik for the Appellant.

    H.M. Singh, Kaushal Yadav, Kuldip Singh for the              B
Respondent.

    The Judgment of the Court was delivered by

     SURINDER SINGH NIJJAR, J. 1. This appeal is directed C
against the final Order of the High Court of Punjab and Haryana
at Chandigarh dated 12th May, 2008 passed in Criminal
Appeal No. 590 - SB of 1999, whereby the High Court upheld
the order of conviction passed against the appellant herein
under Section 18 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as "NDPS Act"), D
and sentenced him to undergo rigorous imprisonment for ten
years and to pay a fine of Rs. one lac and in default of payment
of the same, to undergo rigorous imprisonment for another two
years, for having been found in possession of 1 kg and 750
grams of opium without any permit or licence.                    E

     2. The prosecution story is that on 23rd September, 1994
at around 2.30 PM, Inspector Ram Pal Singh (PW4) along with
SI Gurdeep Singh, ASI Satpal Singh (PW5) and other officials
were on duty and coming from village Hassanpur to village F
Mirsapur. After reaching near the bridge of canal minor while
going on kacha path, the police party noticed the appellant
coming from the bank of canal. On seeing the police party, the
appellant tried to run away but on suspicion he was
apprehended. On enquiry, he informed the police about his G.
name, parentage, address etc. At that time, he was carrying a
bag (thaili) in his right hand. PW4 suspected that that the
appellant was carrying some incriminating articles in his bag.
The search was conducted and the police party recovered 1
Kg and 750 gram opium from his custody.
                                                                 H
    896     SUPREME COURT REPORTS                [2011] 2 S.C.R.


A        3. Ten grams of opium was put into a tin container as a
    sample. It was duly sealed. The entire case property was taken
    into possession vide memo Ex. PD attested by SI Gurdeep
    Singh and ASI Satpal Singh. The seal after use was handed
    over to ASI Satpal Singh (PW5). The appellant could not
B   produce any valid license or permit for possession of the said
    opium. On personal search, currency notes amounting to Rs.
    25 /- was also recovered from the accused and the same was
    taken into possession vide memo Ex. P1, signed by the
    appellant. Ruqa Ex. PF was sent to the police station and
c   subsequently the FIR was registered. Inspector, Ram Pal
    (PW4) recorded the statements of the witnesses and arrested
    the appellant.

         4. Inspector, Ram Pal (PW4) then produced the ;3ppellant
    along with the case property and witnesses before Satpal
D   Singh (PW5) on the same day of the alleged crime. PW4
    enquired about the alleged incident from other witnesses and
    checked the case property and also affixed his own seal
    bearing impression 'RP' on the case property and on samples
    of seal Ex. PD/1. Thereafter, PW3 at 7.30 PM deposited the
E   sealed case property with MHC Shudh Singh. The investigation
    was duly completed and challan against the appellant was
    prepared by S.I. Bagh Singh. The prosecution in support of its
    case, examined Sudh Singh (Head Constable) (PW1), Chet
    Ram (PW2), Rachpal Singh (Inspector) (PW3), Ram Pal Singh
F   (PW4) and Satpal Singh (PW5).

       5. The Addi. Sessions Judge vide its final order and
  judgment dated 19th May, 1999 convicted and sentenced the
  appellant under section 18 of the NDPS Act, as noticed above.
G The High Court, in an appeal, vide judgment dated 12th May,
  2008 affirmed the findings of the Sessions Court and dismissed
  the appeal filed by the appellant. Hence the appeal before this
  Court.

        6. We have heard the counsel for both parties. Mr. Ujjal
H   Singh, counsel for the appellant submits as follows:
      JARNAIL SINGH v. STATE OF PUNJAB                   897
         [SURINDER SINGH NIJJAR, J.]

i.       The whole incident happened in a densely                A
         populated area and there were so many
         independent witnesses but only the police have
         been made the prosecution witnesses. The
         appellant has been falsely implicated.
                                                                 B
ii.      The courts below have not considered the
         appellant's version as recorded under Section 313
         Cr.P.C. The appellant was apprehended from his
         village on 10th September, 1994 by the police
         party. Another police party dug up his house and        C
         courtyard looking for illicit arms. But nothing
         incriminating was found. The Ex-Sarpanch, Narang
         Singh asked them the reason for the digging. The
         police told him that they were searching for opium
         and illicit arms, and that he had relations with
         terrorists. Thereafter, the police took the appellant   D
         to CIA staff. He was tortured by using third degree
         methods. Then he was falsely implicated in this
         case. The Courts below have also disregarded the
         deposition of DW-1, Sarpanch Narang Singh for no
         valid grounds.                                          E

iii.     Section 50 of the NDPS Act is a mandatory
         provision but the same was never followed in the
         present case. The appellant was never given any
         option nor taken to the nearest Gazetted Officer or     F
         Magistrate for his search.

iv.        There is a delay of twelve days in sending the
       · _ sample for the chemical examination. The
           prosecution has not been able to give any
           reasonable justification for such delay.              G

v.       The consent statement made by the appellant is in-
         admissible under section 25 of the Indian Evidence
         Act, 1872.
                                                                 H
    898          SUPREME COURT REPORTS                [2011] 2 S.C.R.


A         vi.      There are vital lapses in the present case. The
                   version deposed by PW -3 is inconsistent with the
                   deposition of PW -4.

          vii.     The prosecution has not been able to prove as to
                   from where they got weighing scale, tin dabba and
B
                   dabhi. The police also could not give any valid
                   reason as to why they had gone to the spot. This
                   shows that they were pre - prepared and have
                   falsely implicated the appellant.

C       7. On the other hand, Mr. H.M. Singh, counsel for the
    respondent submits as follows:

          i.       The appellant is rightly been convicted under section
                   18 of the NDPS Act. There are numerous witnesses
D                  and evidences to prove his guilt.

          ii.      The appellant was apprehended with contraband by
                   the policy party and he was arrested after the
                   registration of his case vide Ruqa Ex. PF.

E         iii.     The deposition of DW-1, Sarpanch Narang Singh
                   is baseless. The appellant was arrested on 23rd
                   September, 1994 but DW -1 appeared for the first
                   time before the Sessions Court on 13th May, 1999,
                   i.e. after five long years.
F
          iv.      Delay of 11 - 12 days in sending the sample for
                   chemical examination is not enough to demolish the
                   case of the prosecution. There is nothing on record
                   to show that the sample parcel was tampered by
                   the prosecution at any stage.
G
      8. The trial court as also the High Court have meticulously
  examined and re-examined the entire evidence. On such close
  scrutiny, both the courts have concurrently found that the
  prosecution has proved its case beyond reasonable doubt.
H Undoubtedly the jurisdiction and the powers of this Court under
         JARNAIL SINGH v. STATE OF PUNJAB                           899
            [SURINDER SINGH NIJJAR, J.]

Article 136 are very wide. Even then, interference with A
concurrent findings of fact would be an exception and not the
rule. On numerous occasions, this Court has emphasised that
an appeal under Article 136 cannot be converted into a third
appeal on facts. This Court in the case of Ganga Kumar
Srivastava Vs. State of Bihar 1 discussed at length, the B
circumstances in which this Court may interfere with the
concurrent finding of facts; which are as follows:

      "From the aforesaid series of decisions of this Court on
      the exercise of power of the Supreme Court under Article
      136 of the Constitution following principles emerge:     C

            (i) The powers of this Court under Article 136 of the
      Constitution are very wide but in criminal appeals this
      Court does not interfere with the concurrent findings of fact
      save in exceptional circumstances.                                    o
             (ii) It is open to this Court to interfere with the findings
      of fact given by the High Court, if the High Court has acted
      perversely or otherwise improperly.
             (iii) It is open to this Court to invoke the power under E
      Article 136 only in very exceptional circumstances as and
      when a question of law of general public importance arises
      or a decision shocks the conscience of the Court.

             (iv) When the evidence adduced by the prosecution              F
      fell short of the test of reliability and acceptability and as
      such it is highly unsafe to act upon it.
              (v) Where the appreciation of evidence and finding
      is vitiated by any error of law of procedure or found contrary
      to the principles of natural justice, errors of record and G
      misreading of the evidence, or where the conclusions of
      the High Court are manifestly perverse and unsupportable
      from the evidence on record."
1.   (2005) a sec 211.                                                      H
    900     SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A      9. The first submission of Mr. Ujjal Singh, learned counsel,
  is that the appellant has been falsely implicated. We are unable
  to accept this submission. Merely because the prosecution has
  not examined any independent witness, would not necessarily
  lead to the conclusion that the appellant has been falsely
B implicated. It was clearly a case where the police personnel had
  noticed the odd behaviour of the appellant when he was
  walking towards them on a path which led to village Mirzapur.
  It was the display of hesitation by the appellant on sighting the
  police party that Satpal Singh (PWS) became suspicious. On
C seeing the police personnel, the appellant tried to run away from
  the scene. It was not a case where the prosecution has claimed
  that the appellant was apprehended on the basis of any earlier
  information having been given by any secret informer. It was
  also not a case of trap. In such circumstances, it would not be
  possible to hold that the appellant has been falsely implicated.
0
        10. The prosecution has offered a plausible explanation
  with regard to non-joining of the independent witnesses. It was
  clearly stated by PWS that the path on which the appellant was
  apprehended was not frequently used by the public. In fact,
E efforts were made to bring a member of Panchayat or
  Sarpanch of the village. However, the Head Constable Baldev
  Singh who had been sent, reported that none of the villagers
  were prepared to join as independent witnesses. This
  reluctance on the part of the villagers is neither strange nor
F unbelievable. Generally, people belonging to the same village
  would not unnecessarily want to create bad relations/enmity with
  any other villager. Especially when such a person would be
  feeling insecure, having been accused of committing a crime.
       11. We also do not find any substance in the submission
G of Mr. Ujjal Singh that both the courts have ignored the plea of
  the appellant under Section 313 of the Cr.P.C. without any
  basis. The evidence of DW1, Narang Singh, upon which the
  appellant placed heavy reliance would not be of much
  assistance to the appellant. It is note worthy that even according
H
        JARNAIL SINGH v. STATE OF PUNJAB                    901
           [SURINDER SINGH NIJJAR, J.]

to the appellant the police had dug up his house and the A
courtyard on 10th September, 1994. According to the
appellant, nothing incriminating was found. This was sought to
be supported by the evidence given by DW1, the Ex-
Sarpanch, Narang Singh. Both the courts below, in our opinion,
have correctly concluded that such evidence cannot be believed B
as the witness DW1 seems to have appeared for the first time
as a witness in court on 13th May, 1999. Prior to the
appearance in court, this Ex- Sarpanch did not make any
complaint in writing either to the police authorities or to the civil
administration. Being the Ex- Sarpanch of the village, he can      c
be expected to act with responsibility. There is no material to
show that he made any efforts to complain about the high
handed behaviour of the police. In our opinion, both the courts
below have rightly discarded the evidence of DW1.

     12.1. The next submission made by Mr. Ujjal Singh is that D
there has been non compliance of Section 50 of the NDPS Act,
in that requisite option was not given to the appellant, as to, ,
whether he wanted to be searched in the presence of a
Gazetted Officer or a Magistrate. We are unable to (iccept the
aforesaid submission. Inspector Ram Pal (PW4) has clearly E
stated that the option was duly given to the appellant. The
appellant had, in fact, signed on the consent statement
expressing his confidence to be searched in presence of the
aforesaid witness. Similarly, Satpal Singh PW5 has also stated
that before affecting the search, the accused/appellant was F
given the necessary option as to whether he wanted to be
searched before a Gazetted Officer or a Magistrate. This
witness also stated that the appellant reposed his confidence
in Inspector Rampal. In such circumstances, it cannot be held
that there was non compliance with Section 50 of the NDPS G
Act.

      12.2. This apart, it is accepted that the narcotic/opium,
i.e., 1 kg. and 750 grams was recovered from the bag (thaili)
which was being carried by the appellant. In such                  H
    902        SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A   circumstances, Section 50 would not be applicable. The
    aforesaid Section can be invoked only in cases where the
    drug/narcotic/NDPS substance is recovered as a consequence
    of the body search of the accused. In case, the recovery of the
    narcotic is made from a container being carried by the
B   individual, the provisions of Section 50 would not be attracted.
    This Court in the case of Ka/ema Tumba Vs. State of
    Maharastra 2 discussed the provisions pertaining to 'personal
    search' under Section 50 of the NDPS Act and held as follows;

           "....... if a person is carrying a bag or some other article
c          with him and narcotic drug or psychotropic substance is
           found from it, it cannot be said that it was found from his
           person."

    Similarly, in the case of Megh Singh Vs. State of Punjab 3, this
D   Court observed that;

           "A bare reading of section 50 shows that it applies in case
           of personal search of a person. It does not extend to a
           search of a vehicle or container or a bag or premises."

E   The scope and ambit of Section 50 was also examined by this
    Court in the case of State of Himachal Pradesh Vs. Pawan
    Kumar. In paragraphs 10 and 11, this Court observed as
    follows:-

F          "10. We are not concerned here with the wide definition
           of the word "person", which in the legal world includes
           corporations, associations or body of individuals as
           factually in these type of cases search of their premises
           can be done and not of their person. Having regard to the
G          scheme of the Act and the context in which it has been
           used in the section it naturally means a human being or a
           living individual unit and not an artificial person. The word
    2.    (1999) s sec 257.
    3.    (2003) s sec 666.
H 4. c2005) 4 sec 350.
   JARNAIL SINGH v. STATE OF PUNJAB                      903
      [SURINDER SINGH NIJJAR, J.]

 has to be understood in a broad common-sense manner             A
and, therefore, not a naked or nude body of a human being
 but the manner in which a normal human being will move
about in a civilised society. Therefore, the most
appropriate meaning of the word "person" appears to be
. - "the body of a human being as presented to public view,      s
usually with its appropriate coverings and clothing". In    a
civilised society appropriate coverings and clothings are
considered absolutely essential and no sane human being
comes in the gaze of others without appropriate coverings
and clothings. The appropriate coverings will include            c
footwear also as normally it is considered an essential
article to be worn while moving outside one's home. Such
appropriate coverings or clothings or footwear, after being
worn, move along with the human body without any
appreciable or extra effort. Once worn, they would not
                                                                 0
 normally get detached from the body of the human being
unless some specific effort in that direction is made. For
interpreting the provision, rare cases of some religious
 monks and sages, who, according to the tenets of their
religious belief do not cover their body with clothings, are     E
 not to be taken notice of. Therefore, the word "person"
would mean a human being with appropriate coverings
and clothings and also footwear.

11. A bag, briefcase or any such article or container, etc.
can, under no circumstances, be treated as body of a             F
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 of a hu~an 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       G
box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of
varying size, dimension or weight. However, while carrying
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         H
    904       SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A         the head. In common parlance it would be said that a
          person is carrying a particular article, specifying the
          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
B         Section 50 of the Act."

  It has come in evidence that although the body search of the
  appellant was conducted but no recovery of any narcotic was
  made. The body search only led to the recovery of Rs.25/-from
C his pocket.

        13. Mr. Ujjal Singh then submitted that the consent
  statement made by the appellant is inadmissible under Section
  25 of the Indian Evidence Act, 1872. We are unable to accept
  this submission. The consent statement signed by the appellant
D has not been used as a confession, therefore, the bar under
  Section 25 would not be applicable. A statement in order to
  be treated as a confession must either admit in terms of an
  offence, or at any rate substantially all the facts which constitute
  the offence. No confession has been made in this case through
E the consent given by the appellant with regard to any of the
  ingredients of the offence with which he was subsequently
  charged.

       14. Mr. Ujjal Singh then submitted that there was a delay
  of twelve days in sending the sample of narcotic for chemical
F examination. This submission, in our opinion, is without any
  factual basis. The trial court as well as the High Court, on
  examination of the entire material, concluded that there was
  sufficient independent evidence produced by the prosecution
  regarding the completion of link evidence. Therefore, the delaf
G in sending the sample parcel to the office of Chemical
  Examiner pales into insignificance. We are of the considered
  opinion that mere delay in sending the sample of the narcotic
  to the office of the Chemical Examiner would not be sufficient
  to conclude that the sample has been tampered with. There is
H sufficient evidence to indicate that the delay, if any, was wholly
         JARNAIL SINGH v. STATE OF PUNJAB                 905
            [SURINDER SINGH NIJJAR, J.]

unintentional. This Court had occasion to deal with a similar A
issue, in the case of Balbir Kaur Vs. State of Punjab 5• The
Court made the following. observations:

     "As far as delay in sending the samples is concerned, we
     find the said contention untenable in law. Reference in this
                                                                  B
     regard may be made to the decision of this Court in Hardip
     Singh case6 wherein there was a gap of 40 days between
     seizure and sending the sample to the chemical examiner.
     Despite the said fact the Court held that in view of cogent
     evidence ·that opium was seized from the appellant and the C
     seals put on the sample were intact till it was handed over
     to the chemical examiner, delay itself is not fatal to the
     prosecution case."

The trial court as well as the High Court, on examination of the
evidence on record, concluded that the case property was D
handed over by Ram Pal (PW4), Investigating Officer to the
SHO Inspector Rachhpal Singh (PW3). This witness checked
the case property and affixed his own seal bearing impression
'RS' on the case property as also on the sample impression
of the seal. The case property was deposited with MHC Sudh E
Singh on the same day. Sudh Singh appeared as PW1 in court
and tendered his affidavit Ex. PA to the effect that the case
property including the sample parcel and the specimen
impression of the seal, duly sealed and intact was deposited
with him by Ram Pal, PW4, on 23rd September, 1994. He also F
stated that he handed over the sample parcel, duly sealed and
sample impression of seal to Constable Chet Ram on 4th
October, 1994 for depositing the same in the office of Chemical
Examiner. It was further stated that none had tampered with the
aforesaid case property and the seal which remained in his G
custody. He ultimately deposited the case property in the office
of Chemical Examiner on the same day and tendered receipt.
This apart, there is a report of the Chemical Examiner (Ex. PJ)
which indicates that the seals were intact when the sample was
                I


5.   c2009) 15 sec 795.                                          H
    906      SUPREME COURT REPORTS                 [2011) 2 S.C.R.


A received and tallied with the sample impression of the seal. It
  is note worthy that such a report of the Chemical Examiner
  would be admissible under Section 293 of the Cr.P.C.
  Considering the aforesaid clear evidence, it cannot be said that
  there is any infirmity in the link evidence merely because there
B was a delay of few days in sending the sample to the office of
  the Chemical Examiner.

        15. Having considered the entire material on the record,
  the .trial court as well as the High Court have concurrently found
  the appellant guilty. We are unable to find any perversity or any
C miscarriage of justice in the findings so recorded. Finding no
  merit, we dismiss the appeal.

    B.B.B.                                     Appeal dismissed.