SIATE OF PUNJABversusNIRMAL SINGH

                         [2009] 9 S.C.R. 917
.J




                         SIATE OF PUNJAB                             A
                                  v.
                           NIRMAL SINGH
                 (Criminal Appeal No. 1390 of 2004)
                           APRIL 23, 2009
                                                                     B
            [DR. ARIJIT PASAYAT AND ASOK KUMAR
                         GANGULY, JJ.]

          Narcotic Drugs and Psychotropic Substances Act, 1985:
                                                                     C'
          ss. 15 and 50 - Poppy husk found in house of accused
     - Plea that parameters of s. 50 were not kept in view - Held:
     In such a case, s.50 has no application, as there was rio
     personal search - Further there is no legal bar on recording'
     conviction on the basis of evidence of official witness -       D
     Evidence - Official witness.

           The respondent was convicted by the trial court uls
      15 _of the Narcotic Drugs and Psychotropic Substances
      Act, 1985 and sentenced to 10 years RI and a fine of Rs.
      1,00,0001- as Jt held that the charge against the              E
     ·respondent of fiaving concealed 10 bags of poppy husk
      in his house was found proved. On appeal, the High
      Court acquitted the accused accepting his plea that the
      requisite parameters of s.50 of the Act were not kept in
      view and conviction could not have been recorded only          F
      on the basis of evidence of official witness.

          Allowing the appeal filed by the State, the Court

         HELD: 1.1. In the instant case, the poppy husk was
     recovered from the house of the accused. Section 50 of G
     the Narcotic Drugs and Psychotropic Substances Act,
     1985 has no application, as there was no personal
     search. Therefore, the conclusion of the High Court

                                 917                                 H
     918          SUPREME COURT REPORTS [2009] 9 S.C.R.


A regarding non-compliance of s.50 of the Act is
  unsustainable. [Para 8] [921-D]

         Kalema Tumba v. State of Maharashtra and Anr. JT
    1999 (8) SC 293; The State of Punjab v. Baldev Singh JT
    1999 (4) SC 595 and Gurbax Singh v. State of Haryana 2001
8
    (3) sec 28, relied on.

       1.2. There is no legal bar on recording conviction on
  the basis of evidence of official witness. The conclusion
  of the High Court on this aspect also is indefensible. The
C judgment of the High Court is set aside. The respondent
  shall surrender to custody forthwith to serve the
  remainder of sentence. [Para 7 and 12] [921-A-E; 922-B]

           State of Haryana vs. Mat Ram 2008 (8) SCC 292, relied
D on.
                                                                ..
                          Case Law Reference:
         JT 1999 (8) SC 293          relied on           Para 6
         JT 1999 (4) SC 595          relied on           Para 6
E
         2001 (3) sec 28             relied on           Para 6
         2008 (8) sec 292            relied on           Para 8
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
F   No. 1390- of 2004.

         From the Judgment/Order dated 17.03:2004 passed by
    the High Court of Punjab and Haryana at Chandigarh· in Criminal
    Appeal No. 219-SB of 1991.

G         Kuldip Singh, R.K. Pandey, T.P. Mishra and Sanjay Katyal    /
    for the Appellants.

       Rajat Sharma, Dinesh Verma, A.P. Mohanty and A.P.
    Mohanty for the Respondents.
H
        STATE OF PUNJAB v. NIRMAL SINGH                    919


    The JudgmenUOrder of the Court was delivered by              A

     DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
the judgment of a learned Single Judge of the Punjab and
Haryana High Court directing acquittal of the respondent who
faced trial for alleged commission of offence punishable under 8
Section 15 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short "Act"). It was alleged that the accused had
kept 10 bags of poppy husk under the sugar cane straw.
Learned Additional Sessions Judge, Sangrur found the
accused guilty and sentenced him to undergo rigorous C
imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-
with default stipulation.

     2. The prosecution version in a nutshell is as follows:

      3. On February 25, 1988, ASI Darshant Singh PW2 was D
present alongwith Constable Baldev Singh, Avtar and Gurjant
Singh, on Malerkotla bye-pass, Dhuri. He received a secret
information that the present appellant was selling poppy husk
in his. house and if raided, the same could be recovered. Head
Constable Darshan Singh PW1 also arrived there and he too, E
was joined in the police party. After receipt of the secret
information, ruqa Ex.PC was sent to the concerned police
station for the registration of the case, on the basis of which,
formal F.l.R. Ex.PC/1 was recorded by ASI Amarjit Singh. ASI
Darshan Singh reached Village Bhanbauri, where Sant Ram
Chowkidar of the same village was also joined on the outskirts F
of the village. The police party, thereafter, raided the house of
the appellant, where he was found present. He was
consequently apprehended and interrogated by ASI Darshan
Singh PW2 in the presence of witnesses, ~hereupon the
appellant allegedly made a disclosure statement Ex.PA to the G
effect that he had kept concealed 1O bags of poppy husk under
the sugar cane straw lying in his house, which he could get
recovered. After reducing Ex.PA the statement into writing,
which was thumb marked by the appellant and attested by the
witnesses, the police party led to the place of concealment and H
    920          SUPREME COURT REPORTS [2009J 9 S.C.R.


A    from there, the appellant got recovered the contraband. Each
     bag. contained 40 kg. of poppy husk. Out of each bag 250
     grams was taken out as a sample, put in a separate container
     and the same as also the remaining poppy husk were sealed
     with the seal bearing inscription "DS" and was taken into
B possession vide memo Ex.PB, duly attested by the witnesses.
     The seal, after use was handed over to Head Constable
 ..· Darshan Stngh PW1. Rough site plan of the place of recov~ry
     Ex.PD was also prepared by ASI Darshan Singh. On return to
     the police station, the case property was deposited with seal
c intact with the MHC as no senior official was present. in the
     police station. On receipt of the report of the public analyst
     Ex.PE, who opined the substance as poppy heads, the
     appellant was challaned. A charge under Section 15 of the Act
     was framed against the appellant.

D        4. In order to substantiate the accusations, prosecution
    examined several witnesses like the Head Constable, ASl,who
                                                                         .•
    was the Investigating Officer, one Sant Ram,, Chowkidar who
    was joined before raid for the purpose of being a witness was
    given up by the prosecution as being won over. However, he
E   was produced as the defence witnesss (DW1) by the accused.
    One Sukhminder Singh was also examined as DW2. The
    accused took the stand that he been falsely implicated
    because of dispute with certain politicians. The trial court found
    the accused guilty.
F
        5. Before the High Court the stand of the accused was that
  he never made a disclosure for recovery of the articles
  purported to have been done on the basis of disclosure made
  under Section 27 of the Indian Evidence Act, 1872 (in short the
G 'Act'). It was also submitted that the requisite parameters of
  Section 50 of the Act were not kept in view. Finally, it was
  submitted that only on the basis of the evidence of the official
  witness conviction should not have recorded.

        6. The High Court accepted the stand and directed
H   acquittal. In support of the appeal, learned counsel for the
             STATE OF PUNJAB v. NIRMAL SINGH                       921
                  [DR. ARIJIT PASAYAT, J.]
     appellant submitted that·the High Court was erroneous.                A

          7. Ther~ is no legal bar on recording the conviction on the
     basis of evidence of official witness and Section 50 of the Act
     has no application as there was no personal search.

          8. A bare reading of Section 50 shows that it only applies B
     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. See
     Kalema Tumba v. State of Maharashtra and Anr. (JT 1999
     (8) SC 293), The State of Punjab v. Baldev Singh (JT 1999
     (4) SC 595), Gurbax Singh v. State of Haryana (2001 (3) SCC C
     28). The language of Section 50 is implicitly clear that the
     search has to be in relation to a person as contrasted to search
     of premises, vehicles or articles. This position was settled
     beyond doubt by the Constitution Ber'ich in Baldev Singh's
     case (supra). Above being the position, the conclusion D
     regarding non-compliance of Section 50 of the Act is
     unsustainable.

          9. Therefore, the conviction of the High Court which alleged
     contravention Section 58 of the Act is clearly unsustainable.         E
     Coming to the conclusion of the High Court their conviction
     cannot.be recorded only on the basis of official witness also is
     indefensible.

4-       11. This position was stated in State of Haryana vs. Mai
     Ram, Son of Man Chand (2008 (8) SCC 292) as follows:                  F

         xxxxxxxxxxx
               "So far as the examination of only official witness is
         concerned, it is to be noted that the only independent
         witness who was examined to speak about the seizure did           G
         not support the prosecution version. No material was
         brought on record by the defence to discredit the evidence
         of the official witnesses. The ultimate question is whether
         the evidence of the official witness suffers from any infirmity
                                                                           H
    922           SUPREME COURT REPORTS [2009) 9 S.C.R.


A          in the instant case nothing of the nature could be pointed
           out. Further PWs 1 and 2 categorically stated that no other
           person was willing to depose as witness.1Therefore, the
           High Court was clearly in error in holding that the
           prosecution version became vulnerable for non-
8          examination of persons who were not official witnesses."

           12. The judgment of the High Court is set aside. The
    appeal is allowed. The respondent shall surrender to custody ,
    forthwith to serve the remainder of sentence.       ·

C   R.P.                                            Appeal allowed.



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