RAM SWAROOPversusSTATE (GOVT. NCT) OF DELHI

                     [2013] 3 S.C.R. 791


                      RAM SWAROOP                                  A
                               v.
              STATE (G0VT. NCT) OF DELHI
            (Criminal Appeal No. 1327 of 2010)

                        MAY 21, 2013
                                                                   B
      [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.)

     Narcotic Drugs and Psychotropic Substances Act, 1985
- Search and seizure - Reliance placed only on the testimony
of official witnesses I police officials - Non-examination of      C
independent witnesses - Effect - Held: There is no absolute
rule that police officers cannot be cited as witnesses and their
depositions should be treated with suspect - Generally the
public at large are reluctant to come forward to depose before
the court and, therefore, the prosecution case cannot be           D
doubted for non-examining the independent witnesses - In the
case at hand, the evidence of PW-7 (Sub Inspector) was
supported by PW-5 (Constable), as well as other witnesses -
It has come in the evidence of PW-7 that he had asked the
passerby to be witnesses but none of them agreed and left          E
without disclosing their names and addresses - The evidence
of PW-5 and 7 being absolutely unimpeachable, no reason
to hold that non-examination of independent witnesses
affected the prosecution case.

     Narcotic Drugs and Psychotropic Substances Act, 1985          F
- s.50 - Applicability of - Held: On facts, 32 bags of poppy
straw powder weighing 64 Kgs. had been seized from two bags
belonging to the accused-appellant - There was no seizure
from the person of appellant - Clearly therefore s.50 of the
Act was not attracted and consequently compliance with s.50        G
of the Act was not required in the facts and circumstances of
the case.

    While on patrolling duty, two police officials, PWs 5
                             791                                   H
    792      SUPREME COURT REPORTS            [2013] 3 S.C.R.

A and 7 found the accused-appellant sitting on two white
  coloured bags. On search of the bags, it was found that
  those contained 64 Kgs. of poppy straw powder packed
  in 32 bags of polythene. The appellant was convicted
  under Section 15 of the Narcotic Drugs and Psychotropic
B Substances Act, 1985 (NDPS Act") and sentenced to
  undergo rigorous imprisonment for ten years and further
  directed to pay a fine of rupees one lakh.

        In the instant appeal, the appellant raised two
C contentions, namely, (i) though the alleged seizure had
  taken place at a crowded place, yet the prosecution
  chose not to examine any independent witness and in the
  absence of corroboration from independent witnesses
  the evidence of only police officials should not have been
  given credence to and that (ii) there was non-compliance
D of Section 50 of the NDPS Act inasmuch as the accused
  was not informed his right to be searched in presence of
  a gazetted officer or a Magistrate despite the mandatory
  nature of the provision and, therefore, the conviction was
  vitiated.
E
          Dismissing the appeal, the Court

       HELD: 1. The evidence of PW-7 (Sub-Inspector) has
  been supported by, PW-5 (Constable), as well as other
  witnesses. It has come in the evidence of PW7 that he had
F asked the passerby to be witnesses but none of them
  agreed and left without disclosing their names and
  addresses. On a careful perusal of their version this Court
  does not notice anything by which their evidence can be
  treated to be untrustworthy. On the contrary it is
G absolutely unimpeachable. There is no absolute rule that
  police officers cannot be cited as witnesses and their
  depositions should be treated with suspect. Generally the
  public at large are reluctant to come forward to depose
  bef9re the court and, therefore, the prosecution case
H cannot be doubted for non-examining the independent
   RAM SWAROOP v. STATE (GOVT. NCT) OF DELHI 793


 witnesses. It can safely be stated that in the case at hand      A
 there is no reason to hold that non-examination of the
 independent witnesses affected the prosecution case.
 [Paras 7, 10) [796-E-H; 797-A; 798-C]

     State of U.P. v. Ani/ Singh 1988 Supp SCC 686: 1988          B
 Suppl. SCR 611; State, Govt. of NCT of. Delhi v. Sunil and
 Another (2001) 1 SCC 652: 2000 (5) Suppl. SCR 144 and
 Ramjee Rai and Others v. State of Bihar (2006) 13 SCC 229:
 2006 (5) Suppl. SCR 240 - relied on.

       2. In regard to the issue pertaining to non-               C
  compliance of Section 50 of the NDPS Act, the appellant
  has strenuously urged that the provision, being
. mandatory, there has to be strict compliance. But, a
  significant one, in the case at hand 32 bags of poppy
  straw powder weighing 64 Kgs. had been seized from              D
  two bags. It has not been seized from the person of the
  accused-appellant. It has been established by adducing
  cogent and reliable evidence that the bags belonged to
  the appellant. Thus, applying the interpretation of the
  word "search of person" as laid down by this Court in           E
  earlier decisions, to facts of present case, it is clear that
  the compliance with Section 50 of the Act is not required.
  [Paras 13, 14) [799-F-G; 800-B-C, D-E]

      Ajmer Singh v. State of Haryana (2010) 3 SCC 746: 2010
 (2) SCR 785; Madan Lal v. State of H.P. (2003) 7 SCC 465: · F
 2003 (2) Suppl. SCR 716 and State of H.P. v. Pawan Kumar
 (2005) 4 sec 350: 2005 (3) SCR 417 - relied on.
      Vijaysinh Chandubha Jadeja v. State of Gujarat (2011)
 1 SCC 609; State of Punjab v. Baldev (1999) 6 SCC                G
 172:2010 (13) SCR 255; Kamai/ Singh v. State of Haryana
 (2009) 8 SCC 539: 2009 (11) SCR 470: Joseph Femande_z
 v. State of Goa (2000) 1 SCC 707; Prabha Shankar Dubey
 v. State of M.P. (2004) 2 SCC 56: 2003 (6) Suppl. SCR 444;
 My/a Venkateswarlu v. State of Andhra Pradesh (2012) 5 SCC       H
    794      SUPREME COURT REPORTS                   [2013) 3 S.C.R.


A 226 and Ashok Kumar Sharma v. State of Rajasthan (2013)
  2 sec 67 - referred to.
                         Case Law Reference:
          1988 Suppl. SCR 611            relied on      Para 7
B
          2000 (5) Suppl. SCR 144        relied on      Para 8
          2006 (5) Suppl. SCR 240        relied on      Para 9
          (2011) 1 SCC 609               referred to    Para 11
c         2010 (13) SCR 255              referred to    Para 11, 12
          2009 (11) SCR 470              referred to    Para 11
          (2000) 1 sec 101               referred to    Para 12
D         2003 (6) Suppl. SCR 444        referred to    Para 12
          (2012) 5 sec 226               referred to    Para 12
          (2013) 2 sec 67                referred to    Para 12
          2010 (2) SCR 785               relied on      Para 13
E
          2003 (2) Suppl. SCR 716        relied on      Para 13
        2005 (3) SCR 417                 relied on      Para 13
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F No. ·1327 of 2010.

        From the Judgment & Order dated 04.05.2009 of the High
    Court of Delhi at New Delhi in Criminal Appeal No. 394 of
    2007.
G       Susmita Lal for the Appellant.
        Rakesh Kumar Khanna, ASG, Vivek Chib, Harsh
    Prabhakar, Joby P. Varghese, Anil Katiyar, Chandra Bhushan
    Prasad for the Respondent.
H
 RAM SWAROOP v. STATE (GOVT. NCT) OF qELHI                   795


    The Judgment of the Court was delivered by                      A
      DIPAK MISRA, J. 1. The appellant herein has been found
guilty of the offence under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short "the NDPS Acf')
and sentenced to undergo rigorous imprisonment for a period         9
of ten years and to pay a fine of rupees one lakh and, in default
of payment of fine, to suffer simple imprisonment for two years.

     2. On 22.7.2005, Ritesh Kumar, a Sub-Inspector, while
patrolling reached at the outer gate of ISBT where Constable
Balwant Singh met him and both of them found the accused-           C
appellant sitting on two white coloured bags on the left side of
the footpath. On seeing the police party he tried to run away
leaving the bags which raised a suspicion in the mind of the
Sub-Inspector and that led to the apprehension and
interrogation of the accused. Eventually, on search of the bags,    D
it was found that those contained 64 Kgs. of poppy straw
powder packed in 32 bags of polythene. After the search was
carried out samples were sealed and sent to the Forensic
Science Laboratory for examination. The investigating agency
on completion of other formalities filed the charge-sheet before    E
the trial Court.

     3. The accused pleaded false implication and claimed to
be tried.

    4. On behalf of the prosecution eight witnesses were            F
examined including the Sub-Inspector, Ritesh Kumar, and
Constable Balwant Singh. The learned Additional Sessions
Judge, Delhi in Sessions Case No. 90 of 2006, considering
the material on record, found the accused guilty of the offence
and imposed the sentence as has been stated hereinbefore.           G

     5. Ms. Sushmita Lal, learned counsel for the appellant, has
raised two contentions, namely, (i) though the alleged seizure
had taken place at a crowded place, yet the prosecution chose ·
not to examine any independent witness and in the absence. H
    796     SUPREME COURT REPORTS                   [2013] 3 S.C.R.


A of corroboration from independent witnesses the evidence of
  only police officials should not have been given credence to and
  (ii) there has been non-compliance of Section 50 of the NDPS
  Act inasmuch as the accused was not informed his right to be
  searched in presence of a gazetted officer or a Magistrate
B despite the mandatory nature of the provision and, therefore,
  the conviction is vitiated.

        6. Per contra, it is urged by Mr. Rakesh Khanna, learned
  Additional Solicitor General and Mr. Vivek Chib, learned
C advocate appearing for the respondent, state that the learned
  trial Judge as well as the High Court has correctly placed
  reliance on the testimony of the official witnesses and there is
  no mandatory rule that non-examination of independent
  witnesses in all circumstances would vitiate the trial. It is their
  further submission that Section 50 of the NDPS Act is not
D attracted to the case at hand as two bags were searched and
  not the person of the accused-appellant.

       7. To appreciate the first limb of submission, we have
  carefully scrutinized the evidence brought on record and
E perused the judgment of the High Court and that of the trial
  Court. It is noticeable that the evidence of PW-7, namely, Ritesh
  Kumar, has been supported by Balwant Singh, PW-5, as well
  as other witnesses. It has come in the evidence of Ritesh
  Kumar that he had asked the passerby to be witnesses but
F none of them agreed and left without disclosing their names and
  addresses. On a careful perusal of their version we do not notice
  anything by which their evidence can be treated to be
  untrustworthy. On the contrary it is absolutely unimpeachable.
  We may note here with profit there is no absolute rule that
G police officers cannot be cited as witnesses and their
  depositions should be treated with suspect. In this context we
  may refer with profit to the dictum in State of UP. v. Anil Singh\
  wherein this Court took note of the fact that generally the public
  at large are reluctant to come forward to depose before the
H 1. 1988 Supp. sec 686.
     RAM SWAROOP v. STATE (GOVT. NCT) OF DELHI 797
                [DIPAK MISRA, J.]

court and, therefore, the prosecution case cannot be doubted           A
for non-examining the independent witnesses.

    8. At this juncture a passage from State, Govt. of NCT of
Delhi v. Sunil and Another< is apt to quote : -

       "21. We feel that it is an archaic notion that actions of the   B
       police officer should be approached with initial distrust. We
       are aware that such a notion was lavishly entertained during
       the British period and policemen also knew about it. Its
       hangover persisted during post-independent years but it
       is time now to start placing at least initial trust on the      C
       actions and the documents made by the police. At any
       rate, the court cannot start with the presumption that the
       police records are untrustworthy. As a proposition of law
       the presumption should be the other way around. That
       official acts of the police have been regularly performed       D
       is a wise principle of presumption and recognised even
       by the legislature. Hence when a police officer gives
       evidence ln court that a certain article was recovered by
       him on the strength of the statement made by the accused
       it is open to the court to believe the version to be correct    E
       if it is not otherwise shown to be unreliable. It is for the
       accused, through cross-examination of witnesses or
       through any other materials, to show that the evidence of
       the police officer is either unreliable or at least unsafe to
       be acted upon in a particular case. If the court has any        F
       gooci reason to suspect the truthfulness of such records
       of the police the court could certainly take into account the
       fact that no other independent person was present at the
       time of recovery. But it is not a legally approvable
       procedure to presume the police action as unreliable to         G
       start with, nor to jettison such action merely for the reason
       that police did not collect signatures of independent
       persons in the documents made contemporaneous with
       such actions."
2.    c2001 > 1 sec 652.                                               H
    798       SUPREME COURT REPORTS                   [2013] 3 S.C.R.


A       9. In Ramjee Rai and Others v. State of Bihar, it has been
    opined as follows: -

          "26. It is now well settled that what is necessary for proving
          the prosecution case is not the quantity but quality of the
B         evidence. The court cannot overlook the changes in the
          value system in the society. When an offence is committed
          in a village owing to land dispute, the independent
          witnesses may not come forward."

       10. Keeping in view the aforesaid authorities, it can safely
C be stated that in the case at hand there is no reason to hold
  that non-examination of the independent witnesses affect the
  prosecution case and, hence, we unhesitatingly repel the
  submission advanced by the learned counsel for the appellant.

D      11. The i;econd limb of proponement of the learned
  counsel for the appellant pertains to non-compliance of Section
  50 of the NDPS Act. In this context, the learned counsel has
  drawn inspiration from the pronouncement of the Constitution
  Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat4. The
E larger Bench after referring to Objects and Reasons of the
  NDPS Act and various provisions, namely, Sections 41, 42 and
  50 of the said Act, to the earlier Constitution Bench decisions
  in State of Punjab v. Ba/dev5 and Karnal1 Singh v. State of
  Haryana6, and certain other authorities, eventually, opined thus:-
F
          "29. In view of the foregoing discussion, we are of the firm
          opinion that the object with which the right under Section
          50(1) of the NDPS Act, by way of a safeguard, has been
          conferred on the suspect viz. to check the misuse of
          power, to avoid harm to innocent persons and to minimise
G

    3.   c2006) 13 sec 229.
    4.   c2011 l 1 sec 609.
    5.   (1999) 6 sec 112.
H 6. c2009) a sec 539.
 RAM SWAROOP v. STATE (GOVT. NCT) OF DELHI                    799
            [DIPAK MISRA, J.]
     the allegations of planting or foisting of false cases by the    A
     law enforcement agencies, it would be imperative on the
     part of the empowered officer to apprise the person
     intended to be searched of his right to be searched before
     a gazetted officer or a Magistrate. We have no hesitation
     in holding that insofar as the obligation of the authorised      B
     officer under sub-section (1) of Section 50 of the NDPS
     Act is concerned, it is mandatory and requires strict
     compliance. Failure to comply with the provision would
     render the recovery of the illicit article suspect and vitiate
     the conviction if the same is recorded only on the basis of      c
     the recovery of the illicit article from the person of the
     accused during such search. Thereafter, the suspect may
     or may not choose to exercise the right provided to him
     under the said provision."

     12. The principle of substantial compliance, as laid down        D
in Joseph Fernandez v. State of Goa7 and Prabha Shankar
Dubey v. State of M.P. 8, was not accepted as the ratio laid
therein was not in consonance with the dictum laid down in
Ba/dev Singh's case (supra). Similar principle has been
reiterated in My/a Venkateswarlu v. State of Andhra Pradesh 9         E
and Ashok Kumar Sharma v. State of Rajasthan10 •

     13. We have referred to the aforesaid decisions as the
learned counsel has strenuously urged that the provision, being
mandatory, there has to be strict compliance. But, a significant      F
one, in the case at hand 32 bags of poppy straw powder
weighing 64 Kgs. had been seized from two bags. It has not
been seized from the person of the accused-appellant. It has
been established by adducing cogent and reliable evidence that
the bags belonged to the appellant. In Ajmer Singh v. State of        G

1.   c2000) 1 sec 101.
a.   c2004) 2 sec 56.
9.   c2012) 5 sec 226.
10. (2013) 2 sec 67.                                                  H
    800       SUPREME COURT REPORTS                  [2013) 3 S.C.R.

A   Haryana 11 the appellant was carrying a bag on his shoulder and
    the said bag was searched and contraband articles were
    seized. While dealing with the applicability of Section 50 of the
    NDPS Act, two learned Judges referred to the decisions in
    Madan Lal v. State of H.P. 12 and State of H.P. v. Pawan
B   Kumar, 13 and came to hold as follows: -

          "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 with Section 50 of the Act is not required.
c         Therefore, the search conducted by the investigating officer
          and the evidence collecteu 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 with Section 50 of the Act."
D
        14. Tested on the bedrock of the aforesaid dictum, the
    contention, so assiduously raised, that there has been non-
    compliance of Section 50 of the NDPS Act is wholly sans
    substance.
E
         15. In view of the aforesaid premised reasons, the appeal,
    being devoid of merit, stands dismissed.

    B.B.B.                                       Appeal dismissed.




    11. (2010) 3 sec 746.
    12. (2003) 1 sec 465.
    13. (2005) 4 sec 350.