SUMIT TOMARversusTHE STATE OF PUNJAB

                        [2012] 11 S.C.R. 404


A                         SUMITTOMAR
                                v.
                     THE STATE OF PUNJAB
             (Criminal Appeal Nos.1690-1691 of 2012)
                         OCTOBER 19, 2012
B
           [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

          Narcotic Drugs & Psychotropic Substances, Act, 1985 -
     s.15 - Search and seizure - Independent witness - Non-
e    examination of - Effect - Appellant allegedly found driving a
     car loaded with bags of contraband (poppy straw) - Convicted
     on the basis of evidence of official witnesses - Conviction
    challenged on the ground that 'K', an independent witness was
    not examined - Held: In a case of this nature, it is better if
D   the prosecution examines at least one independent witness
    to corroborate its case - However, in absence of any such
    witness, if the statements of police officers/official witnesses
    are reliable and no animosity is established against them by
    the accused, conviction based on such statements cannot be
E   faulted with - In the instant case 'K' had witnessed the
    recovery and the prosecution had taken necessary steps to
    summon him for examination, but he did not appear -
    Besides, no animosity was established on the part of the
    official witnesses by the accused in defence - Conviction of
F   appellant accordingly affirmed in view of the evidence of the
    official witnesses; the owner of the car involved in the offence
    i.e. PW2 and the FSL report - Further, since 70 kgs. of poppy
    straw was involved which was more than commercial quantity,
    the Special Judge rightly imposed the minimum sentence (RI
G   of 10 years) and fire in terms of s.15(c) of the Act.
        Narcotic Drugs & Psychotropic Substances, Act, 1985 -
    s. 15 - Search and seizure - Taking out of samples -
    Procedure - Appellant allegedly found driving a car loaded

H                                404
        SUMIT TOMAR v. STATE OF PUNJAB                405


with two bags of contraband (poppy straw) and thereafter A
convicted - Conviction challenged on the ground that after
the alleged seizure of contraband in two separate bags, there
was no need for the officers to mix both and then take out two
samples, and this was an irregularity which went against the
prosecution case - Held:S.15 of the Act speaks about B
punishment for contravention in relation to poppy straw -
Merely because different punishments have been prescribed
therein depending on the quantity of contraband, mixing of
the said two bags did not cause any prejudice to the appellant
- Even after taking two samples of 250 grams each, the c
quantity of remaining contraband came to 69.50 kgs which
was more than commercial quantity - Plea that the police
should have taken two samples each from the two bags
without mixing, not tenable.

     According to the prosecution, a police party found D
 the appellant driving a car in which two bags of
 contraband were loaded. The police officials mixed the
 contents of both the bags and thereafter two samples of
 250 gms. each were taken out. The samples were sent to
 the Forensic Science Laboratory (FSL) for examination. E
 On the same day, FIR was lodged by the police against
 the appellant and another accused under Sections 8, 15,
 60, and 61 of the Narcotic Drugs & Psychotropic
 Substances, Act, 1985. During the pendency of the case,
 the other accused died. The Special Court convicted the F
 appellant under Section 15 of the NDPS Act and
 sentenced him to undergo rigorous imprisonment (RI) for
 10 years. The conviction and sentence was upheld by the
 High Court in appeal.
                                                            G
      In the instant appeals, the appellant challenged his
  conviction on various grounds viz. i) that one 'K', an
  independent witness, who was allegedly joined by the
  prosecution was not examined and thus the entire story
·-of the prosecution is liable to be rejected; ii) that in H
    406      SUPREME COURT REPORTS            [2012) 11 S.C.R.

A   absence of an independent witness, the conviction based
    on official witnesses cannot be sustained; and iii) that
    after the a11eged seizure of contraband in two separate
    bags, there was no need for the officers to mix both, and
    then take out two samples and this was an irregularity
s   which went against the prosecution case.

          Dismissing the appeals, the Court

       HELD: 1.1. It is the case of the prosecution that while
  'K' was just passing through, he met the police party who
C had laid a special nakabandi near Basantpur Bus-stand
  for nabbing the anti-social elements. In such
  circumstance, his presence cannot be doubted, on the
  other hand, his presence seems to be natural and a
  perusal of the consent memo, the recovery memo and
D the arrest memo shows that he was present at the time
  when the recovery was effected from the accused. His
  signatures appended in all these memos show that he
  has witnessed the recovery. It is true that the prosecution
  could have examined him, but for this, it is the stand of
E the prosecution that inspite of necessary steps taken by
  issuing summons, he did not appear for which the
  prosecution case cannot be thrown out. [Para 8] [411-C-E]

       1.2. In a case of this nature, it is better if the
F prosecution examines at least one independent witness
  to corroborate its case. However, in the absence of any
  animosity between the accused and the official
  witnesses, there is nothing wrong in relying on their
  testimonies and accepting the documents placed for
  basing conviction. After taking into account the entire
G materials relied on by the prosecution, no animosity is
  established on the part of the official witnesses by the
  accused in defence and also no infirmity is found in the
  prosecution case. It is not in dispute that the appellant
  (A-2) was driving the car in question which carried the
H
       SUMIT TOMAR v. STATE OF PUNJAB                407


contraband. PW-2, owner of the car was also examined A
and proved its ownership and deposed that the appellant
demanded the said car for personal use. In view of the
above, it is clear that though it is desirable to examine
independent witness, however, in the absence of any
such witness, if the statements of police officers are B
reliable and when there is no animosity established
against them by the accused, conviction based on their
statement cannot be faulted with. On the other hand, the
procedure adopted by the prosecution is acceptable and
permissible, particularly, in respect of the offences under c
the NDPS Act. [Para 9] [411-H; 412-A·E]

     2. There is no substance in the contention that the
prosecution committed an irregularity by mixing up the
contraband found in the two bags loaded in the car
driven·by the appellant and thereafter taking the samples. D
Section 15 of the NDPS Act speaks about punishment for
contravention in relation to poppy straw. As per sub-
section (a) where the contravention involves small
quantity, the rigorous imprisonment may extend to six
months or with fine which may extend to ten thousand E
rupees or with both whereas under sub-section (b) where
the contravention involves quantity lesser than
commercial quantity but greater than small quantity,
rigorous imprisonment may extend to 10 years and with
fine which may extend to one lakh rupees. Sub-section (c) F
provides that where the contravention involves
commercial quantity, the rigorous imprisonment shall not
be less than 10 years but which may extend to 20 years
~nd shall also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh rupees. G
Merely because different punishments have been
prescribed depending on the quantity of contraband,
mixing the said two bags has not caused any prejudice to
the appellant. Even after taking two samples of 250 grams
each, the quantity measured comes to 69.50 kgs which is H
    408       SUPREME COURT REPORTS             [2012) 11 S.C.R.


A more than commercial quantity (small quantity 1000 gms/
  commercial quantity 50 kgs. and above). In view of the
  same, the contention that the police should have taken
  two samples each from the two bags without mixing is
  liable to be rejected. [Para 10] [412-F-H; 413-A-D]
B
        3. Taking note of all the materials, the evidence of
  official witnesses, PW-2, the owner of the car which was
  involved in the offence, possession of commercial
  quantity, FSL report which shows that the contraband is
C poppy straw and is a prohibited item, this Court is in
  entire agreement with the conclusion arrived at by the
  trial Court and affirmed by the High Court. Further, taking
  note of the fact that the quantity involved is 70 kgs. of
  poppy straw which is more than a commercial quantity,
  the Special Judge rightly imposed minimum sentence
D and fine in terms of Section 15(c) of the NDPS Act. [Para
  11] [413-E-G]

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1690-1691 of 2012.
E
        From the Judgment & Order of the High Court of Punjab
    and Haryana at Chandigarh dated 31.01.2011 in Criminal
    Appeal No. 2079 SB of 2009 and dated 17.05.2011 in Criminal
    Misc. No. 26283 of 2011.
F      V. Giri, Nagendra Singh, Vishwa Pal Singh for the
    Appellant.

        Noopur Singhal, Anil Grover, Kuldip Singh for the
    Respondent.
G
          The Judgment of the Court was delivered by

          P. SATHASIVAM, J. 1. Leave granted.

          2. These appeals are directed against the judgment and ·
H
        SUMIT TOMAR v. STATE OF PUNJAB                       409
               [P. SATHASIVAM, J.]
order dated 31.01.2011 passed by the High Court of Punjab A
and Haryana at Chandigarh in Criminal Appeal No. 2079 SB
of 2009 whereby the High Court dismissed the criminal appeal
filed by the appellant herein and also of the order dated
17.05.2011 passed by the High Court in Crl.M. No. 26283 of
2011 regarding correction of the date in the judgment.       B

    3. Brief facts:

     (i) According to the prosecution, on 27.06.2004, at about
5.00 p.m., a special barricading was set up by the police party
at Basantpur Bus Stand, Patiala. At that time, the police party C
signaled to stop a silver colour lndica Car bearing No. DL-7CC-
0654 which was coming from the side of Rajpura. The driver
of the said car (appellant herein), accompanied with one Vikas
Kumar (since deceased), who was sitting next to him, instead
of stopping the car tried to run away, but the police party D
immediately blocked the way and managed to stop the car. On
suspicion, the police checked the car and found two plastic
bags containing 'bhooki' opium powder from the dickey of the
said vehicle. The contents of both the bags were mixed and
two samples of 250 gms. each were taken out. The remaining E
contraband weighing 69.50 kgs. was sealed in two bags and
the samples were sent to the Forensic. Science Laboratory
(FSL) for examination.

    (ii) On the same day, i.e., 27.06.2004, a First Information      F
Report (FIR) being No. 105 of 2004 was lodged by the police
against the appellant herein and Vikas Kumar under Sections
8, 15, 60, and 61 of the Narcotic Drugs & Psychotropic
Substances, Act, 1985 (in short "the NDPS Act").

     (iii) On receipt of the report of the Chemical Examiner and     G
after completion of all the formalities relating to investigation,
the case was committed to the Special Court, Patiala and
numbered as Sessions Case No. 118T/06.09.04/17.11.08.
During the pendency of the case, Vikas Kumar died. The
Special Court, Patiala, by order dated 20.08.2009, convicted         H
    410     SUPREME COURT REPORTS                 (2012] 11 S.C.R.

A the appellant herein under Section 15 of the NDPS Act and
  sentenced him to undergo rigorous imprisonment (RI) for 10
  years alongwith a fine of Rs. One lakh, in default, to further
  undergo R.I. for one year.

B     (iv) Being aggrieved, the appellant herein filed Criminal
  Appeal No. 2079 SB of 2009 before the High Court of Punjab
  & Haryana. Learned single Judge of the High Court, by
  impugned order dated 31.01.2011, dismissed the said appeal.
  Questioning the same, the appellant has filed these appeals
C by way of special leave before this Court.

        4. Heard Mr. V. Giri, learned senior counsel for the
    appellant and Ms. Noopur Singhal, learned counsel for the
    respondent-State.

0        5. Mr. V. Giri, learned senior counsel for the appellant
    raised the following contentions:

       i) one Kaur Singh, an independent witness, was allegedly
  joined by the prosecution but has not been examined. Though
  the prosecution claimed that the presence of Kaur Singh at the
E spot was natural, since he was not examined, the entire story
  of the prosecution has to be rejected;

        ii) in the absence of independent witness, conviction based
    on official witnesses, cannot be sustained; and
F
         iii) inasmuch as after the alleged seizure of contraband in
    two separate bags, there is no need for the officers to mix both
    the samples which was an irregularity and goes against the
    prosecution case.
G       6. On the other hand, Ms. Noopur Singhal, learned counsel
  for the State submitted that the person who was present at the
  time of seizure was Kaur Singh and, hence, he is a natural
  witness and to show their bona fide, the prosecution summoned
  him for examination, but he failed to appear. She further
H submitted that mixing of poppy husk found in two bags is not
        SUMIT TOMAR v. STATE OF PUNJAB                       411
               [P. SATHASIVAM, J.]
an irregularity, on the other hand, according to her, the            A
prosecution has proved its case beyond reasonable doubt and
prayed for confirmation of the order of conviction and sentence.

    7. We have carefully considered the rival submissions and
perused all the relevant materials.                                  B
       8. As regards the first two contentions raised by learned
senior counsel for the appellant, it is true that Kaur Singh,
according to the prosecution, is an independent witness,
however, he was not examined on the side of the prosecution.
It is the case of the prosecution that on 27.06.2004 while Kaur      C
Singh was just passing through, he met the police party who
had laid a special nakabandi near Basantpur Bus-stand for
nabbing the anti-social elements. In such circumstance, his
presence cannot be doubted, on the other hand, his presence
seems to be natural and a perusal of the consent memo, the           D
recovery memo and the arrest memo shows that he was present
at the time when the recovery was effected from the accused.
His signatures appended in all these memos show that he has
witnessed the recovery. It is true that the prosecution could have
examined him. For this, it is the stand of the prosecution that      E
in spite of necessary steps taken by issuing summons, he did
not appear for which the prosecution case cannot be thrown
out.

     9. In order to substantiate its claim, the prosecution
examined Shri Lakhwinder Singh, Head Constable as PW-1,              F
Shri Devinder Kumar, owner of the car as PW-2, Shri Gurdeep
Singh, Assistant Sub-inspector of Police as PW-3 and Shri
Mohan Singh, Head Constable as PW-6. The Special Court as
well as the High Court, on going through the evidence of the
above-mentioned official witnesses and the documents, namely,        G
FIR, seizure memo, FSL report etc., accepted the case of the
prosecution. Even before us, learned senior counsel for the
appellant took us through the evidence of the above-mentioned
prosecution witnesses and the connected materials. In a case
of this nature, it is better if the prosecution examines at least    H
    412      SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A one independent witness to corroborate its case. However, in
  the absence of any animosity between the accused and the
  official witnesses, there is nothing wrong in relying on their
  testimonies and accepting the documents placed for basing
  conviction. After taking into account the entire materials relied
B on by the prosecution, there is no animosity established on the
  part of the official witnesses by the accused in defence and we
  also do not find any infirmity in the prosecution case. It is not in
  dispute that the present appellant (A-2) was driving the car in
  question which carried the contraband. PW-2, owner of the car
c was also examined and proved its ownership and deposed that
  Sumi! Tamar demanded the said car for personal use. In view
  of the above discussion, we hold that though it is desirable to
  examine independent witness, however, in the absence of any
  such witness, if the statements of police officers are reliable
  and when there is no animosity established against them by
0
  the accused, conviction based on their statement cannot be
  faulted with. On the other hand, the procedure adopted by the
  prosecution is acceptable and permissible, particularly, in
  respect of the offences under the NDPS Act. Accordingly, we
E reject both the contentions.

       10. The next contention, according to the learned senior
  counsel for the appellant, is that the prosecution has committed
  an irregularity by mixing up the contraband found in the bags
  and taking samples thereafter. We find no substance in the said
F argument. The present appellant was driving the car in which
  two bags of contraband were loaded. He further pointed out that
  in view of Section 15 (c) of the NDPS Act, which prescribes
  minimum sentence of 10 years and which may extend to 20
  years where the contravention involves commercial quantity, the
G mixing of two bags is a grave irregularity which affects the
  interest of the appellant. We are unable to accept the said
  contention. It is true that Section 15 of the NDPS Act speaks
  about punishment for contravention in relation to poppy straw.
  As per sub-section (a) where the contravention involves small
H quantity, the rigorous imprisonment may extend to six months
         SUMIT TOMAR v. STATE OF PUNJAB                     413
                [P. SATHASIVAM, J.]
or with fine which may extend to ten thousand rupees or with A
both whereas under sub-section (b) where the contravention
involves quantity lesser than commercial quantity but greater
than small quantity, rigorous imprisonment may extend to 10
years and with fine which may extend to one lakh rupees. Sub-
section (c) provides that where the contravention involves B
 commercial quantity, the rigorous imprisonment shall not be
 less than 10 years but which may extend to 20 years and shall
 also be liable to fine which shall not be less than one lakh
    oees but which may extend to two lakh rupees. Merely
     :ause different pl{nishments have been prescribed c
 depending on the quantity of contraband, we are satisfied that
 by mixing the said two bags, the same has not caused any
 prejudice to the appellant. Even after taking two samples of 250
 grams each, the quantity measured comes to 69.50 kgs which
 is more than commercial quantity (small quantity 1000 gms/ 0
  commercial quantity 50 kgs. and above). In view of the same,
 the contention that the police should have taken two samples
  each from the two bags without mixing is liable to be rejected.
     11. Taking note of all the materials, the evidence of official
witnesses, PW-2, owner of the car which was involved in the E
offence, possession of commercial quantity, FSL report which
shows that the contraband is poppy straw and is a prohibited
item, we are in entire agreement with the conclusion arrived at
by the trial Court and affirmed by the High Court. Further, taking
note of the fact that the quantity involved is 70 kgs. of poppy F
straw which is more than a commercial quantity, the Special
Judge rightly imposed minimum sentence and fine in terms of
Section 15(c) of the NDPS Act. We are in agreement with the
said conclusion.
                                                                    G
     12. In the light of the above discussion, we do not find any
merit in the appeals, consequently, the same are dismissed.

B.B.B.                                     Appeals dismissed.

                                                                    H