STATE OF HARYANAversusASHA DEVI AND ANR.

                        [2015) 6 S.C.R. 348


A                      STATE OF HARYANA
                                  v.
                      ASHA DEVI AND ANR.
                (Criminal Appeal No.1953 of 2009)
B                          MAY 12, 2015
                 [PINAKI CHANDRA GHOSE AND
                     UDAY UMESH LALIT, JJ.]
           Narcotic Drugs and Psycotropic Substances Act, 1985
C   - s. 20 - Appeal against acquittal - On facts, search and
    seizure of 11 kgs of intoxicated drug-ganja from the wife and
    her husband - Wife apprehended, however, her husband
    managed to escape - Trial court finding the prosecution
D   evidence inconsistent and untrustworthy and that the
    prosecution failed to prove its charges beyond reasonable
    doubts, acquitted them of the charges - High Court upheld
    the said order - On appeal, held: Assessment of evidence
    and consideration of the matter by both the courts as regards
E   no independent witness; husband could not have fled in
    presence of five police officers; and the link evidence of the
    possession of seal 'RP' transferring from AS/ to 10 is not
    proved, is erroneous and cannot be termed as a possible
    view - Prosecution sufficiently proved its case to establish
F   the guilt of the accused - Thus, the wife and her husband
    convicted u/s. 20 and sentenced to simple imprisonment for
    five years.

           Allowing the appeal, the Court
G        HELD: 1.1 The High Court and the trial court relied
  on three points to decide the matter against the State-
  no independent witness; husband could not have fled
  in presence of five police officers; and the link evidence
H of the possession of seal "RP" transferring from ASI to
                                348
   .. 'STATE OF HARYANA v. ASHA DEVI AND ANR.              349


1.0. is not proved. The assessment of evidence and A
consideration of the matter as regards these points by
both the courts is erroneous and cannot be termed as a
possible view. [Para 7) [355-8-D]

       1.2 Both the DSP as well as 1.0. have deposed        B
that public persons were available when the contraband
was seized; however, none of the public person acceded
to their request of joining the investigation as an
independent witness. The courts below found it
unbelievable but no reason for same was rendered. The       C
consistent statement of both the DSP as well as 1.0.
rather enhances the veracity of the circumstances as
put forth by them. With respect to the finding of the
courts below that husband could not have fled away after
scaling the wall and the police constables would have       D
failed to catch hold of him; the courts below proceeded
on assumption and conjecture. There is nothing in the
evidence which could show that husband could not have
run away. There are positive statements by several
prosecution witnesses that he ran away on seeing the        E
police party and these statements have withstood the
test of cross examination as well. So, the High Court
and the trial court were not correct in arriving at the
said finding. [Para 8) (355-E-H; 356-A]
                                                            F
        1.3 The courts below found the prosecution case
as doubtful inasmuch as that when the seal "RP" was in
possession of ASI, how could it have been with 1.0. the
next day. The more important evidence was with respect
to the sample which was sealed with "RP". There is clear G
evidence that initially the samples were taken and sealed
with "RP" and "MS" atthe place of seizure and thereafter,
on same day, SHO also sealed the said samples with
"SS". There is uncontroverted evidence to the fact that H
the samples were produced before the Judicial
350      SUPREME COURT REPORTS. .           [2015] 6 S.C.R.


A Magistrate, where seal of one sample was broken and
  resealed with "RP". Thereafter, the sample was
  deposited in Judicial Malkhana from where it was sent
  to the FSL. The FSL report notes that the seal was intact
  and the sample was un-tampered. All the persons who
B possessed the contraband sample have been brought
  on record to support that no tampering was done with
  the samples. The defence failed to bring out anything in
  the cross-examination of the witnesses with respect to
  tampering of the samples. Thus, it is found that the
C samples were properly dealt with throughout and the
  same was found to be Ganja. With respect to the seal
  that was handed over to ASI, the defence failed to cross-
  examine the 1.0. as to how did he got possession of
  seal back from ASI. Under these circumstances, the
0
  prosecution was not duty bound to explain the
  movement of the seal from one person to another in the
  given circumstances. Since, the movement of sample
  has been proved and found to be regular, the prosecution
E has sufficiently proved its case to establish the guilt of
  the accused. [Para 9, 10] [356-C-H;357-A-B]

         1.4 The commercial quantity of Ganja is 20 Kgs.
  or more, and the accused are in possession of small
F quantity as per the Notification of the Central
  Government providing small and commercial quantities
  of various contrabands. After giving due weight to the
  mitigating as well as the aggravating circumstances, the
  accused persons are convicted under Section 20 of the
G Narcotic Drugs and Psycotropic Substances Act, 1985
  for possession of 11 kgs. Ganja and sentence them to
  simple imprisonment for five years. Thus, the order
  passed by the High Court as also by the trial court is set
  aside. [Para 12, 14] [360-A-C& F]
H
.. , .. , , STATE;:OF HAR~.<l.Nt\ v. ASHA DEVI AND ANR        351


   Allauddin Mian & Ors. Vs. State of Bihar(1989) 3 SCC        A
   - referred to.

                    Case Law Reference

   (1989) 3 sec             Referred to.        Para 11
                                                               B
      CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1953 of 2009

       From the Judgment and Order dated 10.12.2007 of
the High Court of Punjab and Haryana at Chandigarh in C
Criminal Misc. No. 560-MA of 2007

      Rakesh K. Mudgal, AAG, Dinesh Mudgal, Sanjay
 Kumar Visen for the Appellant.
                                                               D
      Ravi Kumar Tamar, Dinesh S. Badiar for the
 Respondents.

       The Judgment of the Court was delivered by

       PINAKI CHANDRA GHOSE, J. - 1. This appeal has           E
been filed by the State of Haryana against the judgment and
order dated 10. 12.2007 of the High Court of Punjab and
Haryana at Chandigarh in Criminal Misc. No.560-MA of 2007,
whereby the High Court has declined to grant leave to the
State to appeal against the acquittal of the respondents.      F

       2. The facts of this case, as per the prosecution story,
are that on 3.2.2006, when Sub Inspector Ram Phal, ASI
Rishi Raj. Constable Surender Singh, Lady Constables
Babita Rani and Promila, were on patrol duty in a police G
vehicle which was being driven by Constable Darshan Singh,
near Chimni Bai Dharamshala, NIT No.3, SI Ram Phal
received a secret information that Om Prakash son of Moti
Lal, and his wife Asha Devi, residents of Gali No.1, Jhuggi
Kalyanpuri, bring Ganja (intoxicated drug) from Madhya H
•
    352         SUPREME COURT REPORTS                 [2015] 6 S.C.R.


    A     Pradesh and supply in Faridabad and if a raid is conducted
          at their house, Ganja in heavy quantity would be recovered.
          On receiving this information, the aforesaid police team
          raided the house of Om Prakash. On seeing the police party,
          Om Prakash managed to escape by scaling over the wall of
    B     the house. Asha Devi also tried to escape but she was
          apprehended with the help of Lady Constables. On query
          she disclosed her name as Asha wife of Om Prakash and
          also disclosed that the man who had escaped from the house
          was Om Prakash. A notice in writing under Section 50 of the
    C     Narcotic Drugs and Psychotropic Substances Act, 1985
          ("NDPS Act", for short) was served on her informing her of
          the right to either allow the Sub Inspector to take search of
          her house or opt for the search in presence of some Gazetted
    D     Officer or a Magistrate. Asha Devi consented for search of
          her house in the presence of some Gazetted Officer.
          Accordingly, Shri Maharaj Singh, the then Deputy
          Superintendent of Police, NIT, Faridabad, reached the spot
          and in his presence the house of Asha Devi was searched.
    E     Asha Devi unpacked a box, took out a bag containing Ganja
          and produced it before the Sub Inspector. The bag was
          weighed and found to be contained 11 Kgs. of Ganja out of
          which two samples of 200 gms. each were taken and sealed
          with letters "RP" and "MS" on the seal. Both the samples
    F     along with the residue and the specimen seal impressions
          were taken into possession by the police under the recovery
          memo which was prepared by 1.0. Ramphal and witnessed
          by ASI Tej Ram and ASI Rishiraj and attested by DSP
          Maharaj Singh and thumb mark of Asha Devi. The case
    G     property along with the samples and the witnesses were
          produced before the Station House Officer, who after verifying
          the facts affixed his seal thereon and were deposited in the
          Moharrer Police Malkhana. A case was registered against
          accused Asha Devi under Section 20(61) of the NDPS Act
    H     and she was arrested. Thereafter, on 04.02.2006 case
 c1·· STATE-OF HARYAr-;JAi11. ASHA DEVI AND ANR.                  353
              [PINAKI CHANDRA GHOSE, J.)

property and both samples were produced before the learned A
Judicial Magistrate, 1•1 Class, Faridabad. The learned judicial
Magistrate broke the seals on the case property as well one
of the samples. The learned Judicial Magistrate verified the
material, photographs were taken and contraband was
weighed; thereafter the sample was resealed with the seal B
of RP. The Judicial Magistrate directed the Investigation
Officer to deposit the material to Judicial Malkhana. After
investigation, accused Asha Devi was charged under Section
20 of the NDPS Act and accused Om Prakash was charged
under Sections 28 & 29 of the NDPS Act. The accused C
pleaded not guilty and hence the case was committed for
trial.

        3. The Trial Court examined ten prosecution witnesses
and two defence witnesses. After going through the                 D
prosecution evidence and after hearing the learned counsel
for the parties, the Trial Court did not find favour with the
prosecution version as according to it, on receiving the secret
information, Sub Inspector did not join any independent
witness during the investigation of the case despite the fact      E
that they were available at the spot. It further found that the
seal "RP" was entrusted to ASI Rishiraj after sealing the case
property and samples on 3.2.2006; so, 1.0. Ramphal could
not have possessed that seal the next day when the case            F
property was produced before the learned judicial magistrate.
However, the learned judicial magistrate has testified to the
fact that sample was resealed after verification, photograph
and weighment with the seal of "RP". The learned Trial Court
found it irreconcilable that seal "RP" could have been             G
available with the learned Judicial Magistrate when ASI
Rishiraj is not there. Further, the Trial Court found non
production of ASI Rishiraj as prosecution witness creates
more suspicion. Also, ASI Tej Raj (PW-2) had chased the
accused Om Prakash when he was trying to run away but              H
354        SUPREME COURT REPORTS                [2015) 6 S.C.R.


A he was unable to apprehend him. This part of the story was
  also not believed by the Trial Court for the reason that five
  constables were standing outside the house of Om Prakash
  and it was not possible for Om Prakash to have scaled the
  wall of the house. The Trial Court found the evidence of the
B prosecution as completely inconsistent and untrustworthy
  and held that the prosecution has failed to prove its charges
  against the accused beyond all shadows of reasonable doubt
  and accordingly, acquitted the accused of the charges
  levelled against them.
c
         4. The State moved an application before the High
  Court of Punjab and Haryana at Chandigarh, seeking leave
  to appeal against the order of acquittal passed by the Trial
  Court. The High Court vide its judgment and order dated
D 10.12.2007, declined to grant leave to the State to appeal
  against the acquittal of the respondents and dismissed the
  application filed by the State. The State of Haryana has, thus,
  impugned the judgment of the High Court before us.

E             5. We have heard the learned counsel appearing for
      the State of Haryana as also the learned counsel appearing
      for the accused respondents.

          6. The High Court was of the view that the Trial Court
F after going through the prosecution evidence and hearing
  the learned counsel for the parties, rightly acquitted the
  accused as it did not find favour with the prosecution version
  and so far as the search conducted in the presence of the
  Gazetted Officer is concerned, the same was nothing but a
G casual approach adopted by the Gazetted Officer while
  effecting the recovery of the contraband (Ganja) and the
  Investigation Officer did not offer any plausible explanation.
  ASI Rishi Raj was present with the seal which was used at
  the: time of effecting the recovery, no explanation was offered
H by the prosecution as to how the seal continued to remain in
   F STAJE,9gHARY1.NA Y..Al?HA DEVI AND ANR.                       355
       .  "'[PlNAKI CHANDRA GHOSE, J.]

possession of the ASI Rishi Raj from the date of seizure.           A
The only presumption which the Trial Court drew is that the
possibility of sample being tampered with is not ruled out.
The High Court was of the view that it is not a fit case where
leave to appeal is made out in favour of the State of Haryana
and, therefore, declined the same.                                  B

        7. We find that the High Court and Trial Court both
relied on three main points to decide the matter against the
State - (i) no independent witness; (ii) Om Prakash could
not have fled in presence of five police officers; and (iii) the    C
link evidence of the possession of seal "RP" transferring from
ASI Rishiraj to 1.0. Ramphal is not proved. The assessment
of evidence and consideration of the matter as regards these
three points by both the Courts, in our view, is erroneous
and cannot be termed as a possible view.                            D

        8. We find that both the DSP Maharaj Singh as well
as 1.0. Ramphal have deposed that public persons were
 available when the contraband was seized; however, none
 of the public person acceded to their request of joining the E
investigation as an independent witness. The Courts below
have found it unbelievable but no reason for same is
rendered. In our opinion, the consistent statement of both
the DSP as well as 1.0. rather enhances the veracity of the
circumstances as put forth by them. With respect to the F
finding of the Courts below that Om Prakash could not have
fled away after scaling the wall and the police constables
would have failed to catch hold of him; we find the Courts
below have proceeded on assumption and conjecture. There
is nothing in the evidence which could show that Om Prakash G
could not have run away. There are positive statements by
several prosecution witnesses that he ran away on seeing
the police party and these statements have withstood the
test of cross examination as well. Further, no other evidence H
was led to disprove the fact of running away of accused Om
356         SUPREME COURT REPORTS                  [2015) 6 S.C.R.


A     Prakash. So, we are of the view that the High Court and the
      Trial Court were not correct in arriving at the said finding.

              9. There has been a controversy with respect to
      possession of seal. The controversy is that 1.0. Ramphal
B     had given the seal "RP" to ASI Rishiraj on 03.02.2006 after
      sealing the contraband and samples thereof. However, the
      next day when the case property was produced before the
      learned Judicial Magistrate, after verification it was resealed
      again with "RP". The Courts below found the case of
C     prosecution as doubtful inasmuch as that when the seal "RP"
      was in possession of ASI Rishiraj, how could it have been
      with 1.0. Ramphal the next day. We find, the more important
      evidence was with respect to the sample which was sealed
      with "RP". There is clear evidence that initially the samples
D     were taken and sealed with "RP" and "MS" on 03.02.2006 at
      the place of seizure and thereafter, on same day, SHO Vikram
      Singh also sealed the said samples with "SS". There is
      uncontroverted evidence to the fact that the samples were
      produced before the learned Judicial Magistrate, where seal
E     of one sample was broken and resealed with "RP".
      Thereafter, the sample was deposited in Judicial Malkhana
      from where it was sent to the FSL. The FSL report notes
      that the seal was intact and the sample was un-tampered.

F        10. All the persons who possessed the contraband
  sample have been brought on record to support that no
  tampering was done with the samples. The Defence failed
  to bring out anything in the cross-examination of the
  witnesses with respect to tampering of the samples. Thus,
G we find that the samples were properly dealt with throughout
  and the same was found to be Ganja. Going further, with
  respect to the seal that was handed over to ASI Rishiraj. the
  Defence failed to cross-examine the 1.0. Ramphal as to how
H did he got possession of seal back from ASI Rishiraj. Under
  these circumstances, we do not believe that the prosecution
·i : . ;:$TATE OF HARYANA v:'ASHA DEVI AND ANR.                357
             [PINAKI CHANDRA GHOSE, J.]

was duty bound to explain the movement of the seal from         A
one person to another in the given circumstances. Since,
the movement of sample has been proved and found to be
regular, the prosecution has sufficiently proved its case to
establish the guilt of the accused in the present case.
                                                                B
        11. We have noticed the decision of this Court in
Al/auddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5.
In the said decision, this Court held as under:-

  "10. Even a casual glance at the provisions of the Penal      c
  Code will show that the punishments have been
  carefully graded corresponding with the gravity of
  offences; in grave wrongs the punishments prescribed
  are strict whereas for minor offences leniency is shown.
  Here again there is considerable room for manoeuvre          D
  because the choice of the punishment is left to the
  discretion of the judge with only the outer limits stated.
  There are only a few cases where a minimum
  punishment is prescribed. The question theri is what
  procedure does the judge follow for determining the           E
  punishment to be imposed in each case to fit the crime?
  The choice has to be made after following the procedure
  set out in sub-section (2) of Section 235 of the Code.
  That sub-section reads as under:
                                                                F
     If the accused is convicted, the judge shall, unless
     he proceeds in accordance with the provisions of
     Section 360, hear the accused on the question of
     sentence, and then pass sentence on him
     according to law.                                         G

  The requirement of hearing the accused is intended to
  satisfy the rule of natural justice. It is a fundamental
  requirement of fair play that the accused who was
-hitherto concentrating on the prosecution evidence on         H
358      SUPREME COURT REPORTS                     (2015] 6 S.C.R.


A     the question of guilt should, on being found guilty, be
      asked if he has anything to say or any evidence to
      tender on the question of sentence. This is all the more
       necessary since the courts are generally required to
       make the choice from a wide range of discretion in the
 B     matter of sentencing. To assist the court in determining
      the correct sentence to be imposed the legislature
       introduced sub-section (2) to Section 235. The said
      provision therefore satisfies a dual purpose; it satisfies
      the rule of natural justice by according to the accused
c     an opportunity of being heard on the question of
      sentence and at the same time helps the court to
      choose the sentence to be awarded. Since the provision
      is intended to give the accused an opportunity to place
      before the court all the relevant material having a
D
      bearing on the question of sentence there can be no
      doubt that the provision is salutary and must be strictly
      followed. It is clearly mandatory and should not be
      treated as a mere formality. Mr Garg was, therefore,
E     justified in making a grievance that the trial court actually
      treated it as a mere formality as is evident from the
      fact that it recorded the finding of guilt .on 31-3-1987,
      on the same day before the accused could absorb and
      overcome the shock of conviction they were asked if
F     they had anything to say on the question of sentence
      and immediately thereafter the decision imposing the
      death penalty on the two accused was pronounced. In
      a case of life or death as stated earlier, the presiding
      officer must show a high decree of concern for the
G     statutory right of the accused and should not treat it as
      a mere formality to be crossed be_fore making the choice
      of sentence. If the choice is made, as in this case,
      without giving the accused an effective and real
      opportunity to place his antecedents, social and
H     economic background, mitigating and extenuating
;i STAtE-OP HARYANAv.'ASHA DEVI ANDANR.                      359·
         [PINAKI CHANDRA GHOSE, J.]

circumstances, etc., before the court, the court's            A
decision on the sentence would be vulnerable. We need
hardly mention that in many cases a sentencing
decision has far more serious consequences on the
offender and his family members than in the case of a
purely administrative decision; a fortiori, therefore, the    B
principle of fair play must apply with greater vigour in
the case of the former than the latter. An administrative
decision having civil consequences, if taken without
giving a hearing is generally struck down as violative        c
of the rule of natural justice. Likewise a sentencing
decision taken without following the requirements of
sub-section (2) of Section 235 of the Code in letter and
spirit would also meet a similar fate and may have to
be replaced by an appropriate order. The sentencing           D
court must approach the question seriously and must
endeavour to see that all the relevant facts and
circumstances bearing on the question of sentence are
brought on record. Only after giving due weight to the
mitigating as well as the aggravating circumstances           E
placed before it, it must pronounce the sentence. We
think as a general rule the trial courts shou Id after
recording the conviction adjourn the matter to a future
date and call upon both the prosecution as well as the        F
defence to place the relevant material bearing on the
question of sentence before it and thereafter pronounce
the sentence to be imposed on the offender. In the
present case, as pointed out earlier, we are afraid that
the learned trial Judge did not attach sufficient             G
importance to the mandatory requirement of sub-
section (2) of Section 235 of the Code. The High Court
also had before it only the scanty material placed before
the learned Sessions Judge when it confirmed the
death penalty."                                              H
360          SUPREME COURT REPORTS              [2015) 6 S.C.R.


A           12.   Thus, we find the accused respondents guilty
   under Section 20 of NDPS Act for possession of 11 Kgs.
   Ganja. The commercial quantity of Ganja is 20 Kgs. or more,
   and the accused are in possession of small quantity as per
   the Notification of the Central Government providing small
 B and commercial quantities of various contrabands. In view
   of this, we convict the accused persons (Asha Devi and her
   husband Om Prakash) under Section 20 of the NDPS Act
   and sentence them to simple imprisonment for five years.

C         13. Before sentencing, following the principle laid
  down in Allauddin Mian (supra), this matter was adjourned,
  giving a chance to the respondents/accused to place facts
  before us and further directed the appellant to find out about
  the conduct of the respondents after this incident and to
D inform this Court. On the adjourned date, the learned counsel
  for the appellant and learned counsel for the respondents/
  accused expressed that the respondents thereafter were not
  found to be implicated in any other matter. After hearing the
  learned counsel for the parties and after giving due weight
E to the mitigating as well as the aggravating circumstances
  placed before us, we think that it would be proper for us to
  convict the accused persons with the sentence passed by
  us, which would serve the purpose.

 F           14. Accordingly, we set aside the judgment and order
      passed by the High Court as also by the Trial Court and
      direct that the accused/respondents shall be taken into
      custody forthwith to undergo the sentence. The appeal is
      accordingly allowed.
G
      Nidhi Jain                                    Appeal allowed.