SURENDER @ KALAversusSTATE OF HARYANA

                            [2016] l S.C.R. 174



A                         SURENDER @ KALA
                                     v.
                          STATE OF HARYANA
                      (Criminal Appeal No. 50 of2016)
                            JANUARY 19, 2016
B
       [V. GOPALA GOWDA AND UDAY UMESH LALIT, JJ.]
          Narcotic Drugs and Psychotropic Substances Act, 1985: ss.18,
    50 - Appellant suspected to be in possession of opium without any
    permit or licence - Opted search in presence of Gazetted Officer -
    Personal search undertaken and recovery of opium weighing 1 Kg.
c   - Courts below convicted him u/s.18 - Conviction challenged on
    the ground that the investigation was conducted by Sub-Inspector
    who himself was the complainant and therefore investigation was
    not proper and appellant was entitled to acquittal - Held: The search
    of the appellant was conducted in the presence of and under the
D   instructions of the Gazeued Officer - The extracts of depositions
    of other prosecution witnesses show that it was not Sub-Inspector
    alone who was involved in the investigation - lntetference with the
    order of conviction not called for.
          State by Inspector of Police, Narcotic Intelligence
E         Bureau, Madhurai, Tamil Nadu v. Rajangam 2010 (15)
          SCC 369; Megha Singh v. State of Haryana 1996 (11)
          sec 709 - held inapplicable.
                           Case Law Reference
    2010 (15) sec 369       held inapplicable.     Paras 9, 10, 11
F
    1996 (11) SCC 709       held inapplicable.     Paras 10, 11
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 50 of 2016
          From the Judgment and Order dated 11.12.2014 of the High Court
G   of Punjab & Haryana at Chandigarh in Criminal Appeal No. S-318-SB
    of2004.
          Rakesh Dahiya, Brig. M. L. Khatter, Satyavan Kudalwal for the
    Appellant.
           Devender Kr. Saini, AAG, Vishwapal Singh, Sanjay Kumar Visen
H   for the Respondent.
                                     174
        SURENDER @ KALA v.             STATE OF HARYANA                     175



      The Judgment of the Court was delivered by                            A
      UDAY U. LALIT, J. l. Leave granted.
       2. This appeal is directed against the judgment and order dated
11 .12.2014 passed by the High Court of Punjab and Haryana dismissing
Criminal Appeal No. S-318-SB of 2004 preferred by the appellant against
his conviction under Section 18 of Narcotic Drugs and Psychotropic          B
Substances Act, 1985 (hereinafter referred to as the 'Act") for being in
possession of I kg of opium without any permit or licence.
       3. According to the prosecution PW6 SI Satbir Singh was on
usual patrol duty on 24.06.2002 along with other police officials at bus
stand of village Bichpar, Distt Soni pat. Secret information was received   c
by him that the appellant was selling opium and was roaming in the
village in search of customers. This information was reduced to writing
in the form of Ruqa Ext. PF and was sent to the Police Station for
information, whereupon DOR Ext. PC was recorded. PW6 Satbir and
other police officials reached the bus stand and saw the appellant coming   D
from village Gangana side. He was apprehended. The appellant was
told that he was suspected to be carrying opium in his possession and as
such his personal search had to be undertaken and that he had a right to
be searched in the presence of a Gazetted Officer or a Magistrate. The
appellant was given an appropriate notice vide Ext. PA under Section 50
of the Act and by his reply Ext. PA/ I he opted to be searched before a     E
Gazetted Officer.
       4. Thereafter a wireless message was sent to PW4 Shyam Singh
Rana, DSP Gohana who reached the spot. The appellant was produced
before him and PW4 was also acquainted with the facts of the case.
Thereafter, on the instructions of PW4, personal search of the appellant    F
was undertaken which resulted in recovery of opium from the possession
of the appellant. The opium was found in a polythene bag tied in a cloth
around the stomach of the appellant. On weighment, it was found to be
lkg 50gms. A sample was taken and put in a small plastic bag while the
remainder was put in a bag of cloth. The sample and the remainder           G
were separately sealed and taken in possession vide memo Ext. PB.
The seal was then handed over to PW! ASI Bishamber Lal. Thereafter
Ruqa Ext. PC was sent to the Police Station for registration of crime,
whereupon FIR Ext. PC was recorded by PW2 Head Constable Om
Parkash.
                                                                            H
176               SUPREME COURT REPORTS                       [2016] 1 S.C.R.


A            5. The appellant along with the case property was produced before
      PW3 Yad Ram SHO of Police Station who verified the fact and put his
      own seal bearing impression "YR" on the sample as well as on the
      remainder. Thereafter the sealed case property was handed over to the
      Investigating Officer who deposited the same with Ma!khana. In due
      course of time the FSL report Ext. PD was received wherein it was
B
      opined that the sample in question was opium. After completion of
      investigation the appellant was charge-sheeted and tried for having
      committed the offence punishable under Section 18 of the Act.
          6. The prosecution in support of its case examined six witnesses.
      PW! ASI Bishamber Lal stated as under:-
c
            "As contraband article was suspected with the accused so he
            was served with a notice Ext. PA to opt about his search before a
            Gazetted Officer or a Magistrate, which is bearing my signatures.
            Accused opted for his search before a Gazetted officer vide
            endorsement Ex. PAfl which is bearing my signatures."
D
      PW2 Head Constable Om Parkash in his deposition stated as under:-
            "On that day ASI Bishamber Lal deposited the case property
            with me, which was sealed with seal SS."
      PW 3 SI Yad Ram in his deposition stated as under:-
E
            "On 24.06. 2002, I was posted SI/HO P.S. Baroda. On that day
            SI Satbir Singh had produced the accused now present in the
            court, two sealed parcels and the witnesses before me. I verified
            the investigation and affixed my own bearing inscription "YR". I
            directed SI Satbir Singh to deposit the case property with seals
F           intact with the MHC P.S. Baroda."
            PW4 Shyam Singh Rana DSP stated as under:-
            "! directed SI Satbir Singh to carry out the search of the accused.
            During the course of search SI Satbir Singh recovered opium
            wrapped in a cloth was tied with the stomach of the accused
G           underneath the shirt and the vest of the accused wrapped in a
            polythene pack. On weighment it was found to be one kilogram.
            SI Satbir Singh took out 50grams of opium from the recovered
            bulk and sealed the sample and the remainder into two separate
            parcels with the sealed bearing inscription SS. Both the sealed
H           parcels were taken into possession vide recovery memo EX. PB
        SURENDER @ KALA v. STATE OF HARYANA                                 177
                  [UDAY U. LAUT, J.]

      which was signed by ASI Bishamber Lal and HC Suresh Kumar             A
      and was attested by me also."
       7. In his statement under Section 313 Cr. PC. the appellant denied
the prosecution allegations and pleaded innocence. After considering
the material on record and rival submissions, the Special Judge, Sonipat
found the appellant guilty of offence punishable under Section 18 of the    B
Act and by his judgment and order dated 14.11.2004 sentenced him to
undergo rigorous imprisonment for 5 years and to pay fine of Rs.
10000/- , in default whereof to undergo further rigorous imprisonment
for a period of 8 months.
      8. The judgment of conviction and sentence was challenged by          c
way of Criminal Appeal of S-318-SB of 2004 in the High Court. After
considering the entire material on record, the High Court by its judgment
under appeal affirmed the view taken by the Trial Court and dismissed
the appeal. The correctness of the view taken by the High Court is
under challenge in the present appeal.
                                                                            D
      9. It was submitted by Mr. Rakesh Dahiya, learned advocate
appearing for the appellant that the investigal,ion in the m·atter was
conducted by PW6 SI Satbir Singh who himself was the complainant.
Relying on the decision of this court in State by Inspector of Police,
Narcotic Intelligence Bureau, Madhura~ Tamil Nadu v. Rajangam 1 •
the learned counsel submitted that the investigation by PW6 SI Satbir       E
Singh was improper and the appellant was entitled to acquittal.
       10. We have given anxious consideration to the submissions of
the learned counsel. In State v. Rajangam (supra), the High Court had
acquitted the accused. Relying upon the decision of this court in Megha
Singh v. State of Haryana 2 , the view taken by the High Court was F
affirmed by this Court in an appeal against acquittal. In Megha Singh
the accused was tried under the provisions of the TADA Act and the
Arms Act for being in possession of a country made pistol and three live
cartridges. The prosecution did not examine any independent witness
and simply relied upon the testimony of PW3 Investigating Officer. There G
was also discrepancy in the depositions of PW3 Investigating Officer
and another police person namely PW2. In the light of these facts, it
was observed in Megha Singh as under:

1 2010(15) sec 369
2 1996(11) sec 709                                                          H
178                   SUPREME COURT REPORTS                     [2016] 1 S.C.R.


A           "After considering the facts and circumstances of the case, it
            appears to us that there is discrepancy in the depositions of the
            P.W s.2 and 3 and in the absence of any independent corroboration
            such discrepancy does not inspire confidence about the reliability
            of the prosecution case. We have also noted another disturbing
            feature in this case. PW3, Siri Chand, head Constable arrested
B
            the accused and on search being conducted by him a pistol and
            the cartridges were recovered from the accused. It was on his
            complaint a formal first information report was lodged and the
            case was initiated. He being complainant should not have
            proceeded with the investigation of the case. But it appears to us
c           that he was not only the complainant in the case but he carried on
            with the investigation and examined witnesses under Section 161
            Cr.P.C. Such practice, to say the least, should not be resorted to
            so that there may not be any occasion to suspect fair and impartial
            investigation."
D            11. In Megha Singh, the search was not conducted in the
      presence of a Gazetted Officer, as is required in a case under the Act.
      In the instant case the search of the appellant was conducted in the
      presence of and under theInstructions of PW4. The extracts of depositions
      of other prosecution witnesses show that it was not PW6 S.I. Satbir
      Singh alone who was involved in the investigation. In our view the principle
E     laid down in Megha Singh and followed in State vs. Rajangam does
      not get attracted in the present matter. Relevant to note that this was not
      even a ground projected in support of the case of the appellant and does
      not find any reference in the judgment under appeal. We therefore reject
      the submission.
F            12. Having gone through the entirety of the matter, we do not find
      any reason to differ from the view taken by the High Court. We therefore
      dismiss this appeal.
      Devika Gujral                                              Appeal dismissed.

G