SURINDER KUMARversusSTATE OF PUNJAB

                          [2020] 1 S.C.R. 307                            307


                       SURINDER KUMAR                                    A
                                  v.
                        STATE OF PUNJAB
                 (Criminal Appeal No. 512 of 2009)
                        JANUARY 06, 2020                                 B
         [N. V. RAMANA, R. SUBHASH REDDY AND
                         B. R. GAVAI, JJ.]
      Narcotic Drugs and Psychotropic Substances Act, 1985:
                                                                         C
      s. 50 – Recovery of opium – Trial – Conviction – Confirmed
in appeal by High Court – Appeal to Supreme Court – Held: No
violation of s. 50 – Chain of evidence was complete – Non-
examination of ASI, ASP and independent witnesses was not fatal
in the facts of the case.
      Dismissing the appeal, the Court                                   D

       HELD : 1. The ASI after producing the case property before
the Court, returned the case property to PW-3 with the seals
intact. ASI was not in possession of seals of either of the
investigating officer or of PW-3. Therfore, the question of
tampering with the case property by him did not arise at all. Further    E
he has returned the case property, after production of the same,
before the Illaqa Magistrate, with the seals intact, to PW3. In
that view of the matter, the Trial Court and the High Court have
rightly held that non-examination of the ASI did not, in any way,
affect the case of prosecution. Further, it is evident from the report   F
of the Chemical Examiner, Ex.P-10, that the sample was received
with seals intact and that the seals on the sample, tallied with the
sample seals. In that view of the matter, the chain of evidence
was complete. [Paras 10 and 11] [312-A, C, D-E]
      2. The Trial Court as well as the High Court, has recorded         G
a finding that the perusal of the record reveals the ASP was
summoned number of times but either service was not effected
or as and when he was served, he sent a request for exemption
from personal attendance stating valid reasons. Further, it appears
that the High Court has issued directions to the Trial Court to
                                                                         H
                                 307
308           SUPREME COURT REPORTS                      [2020] 1 S.C.R.


A     decide the case before 30.04.1999. As much as the ASP was not
      examined by 30.04.1999, a request for an extension was sought
      by the Special Judge, and it was adjourned to 17.05.1999. Even
      by 17.05.1999, the ASP could not be served as he was on leave.
      In view of such reasoning assigned by the Trial Court, as well as
      the High Court, merely because the ASP was not examined, it
B
      cannot be said that prosecution has failed to prove its case. It is
      clear from the evidence on record that he was summoned at the
      time of search and seizure and only in his presence search was
      conducted, as such, there is no violation of Section 50 of the NDPS
      Act. [Para 13] [313-A-C]
C           3. PW-1, during the course of cross-eamination, has stated
      that efforts were made to join independent witnesses, but none
      were available. Mere fact that the case of the prosecution is based
      on the evidence of official witnesses, does not mean that same
      should not be believed. [Para 14] [313-E]
D           4. From the evidence on record in the present case, the
      prosecution has proved the guilt of the appellant beyond
      reasonable doubt. The conviction recorded and the sentence
      imposed is in conformity with the provisions of law and evidence
      on record, thus no interference is called for. [Para 17] [314-D]
E           Trimukh Maroti Kirkan v. State of Maharashtra (2006)
            10 SCC 681 : [2006] 7 Suppl. SCR 156 ; Noor Aga v.
            State of Punjab & Anr. (2008) 16 SCC 417 : [2008]
            10 SCR 379 ; Mohan Lal v. State of Punjab (2018) 17
            SCC 627 : [2018] 9 SCR 1006 ; Jarnail Singh v. State
F           of Punjab (2011) 3 SCC 521 : [2011] 2 SCR 888 ;
            Varinder Kumar v. State of Himachal Pradesh, (2019)
            SCC Online SC 170 ; State, Govt. of NCT of Delhi v.
            Sunil & Anr. (2001) 1 SCC 652 : [2000] 5 Suppl. SCR
            144 – referred to.

G                           Case Law Reference
      [2006] 7 Suppl. SCR 156        referred to.           Para 8
      [2008] 10 SCR 379              referred to.           Para 8


H
            SURINDER KUMAR v. STATE OF PUNJAB                                  309


[2018] 9 SCR 1006                   referred to.             Para 8            A
[2011] 2 SCR 888                    referred to.             Para 9
[2000] 5 Suppl. SCR 144             referred to.             Para 15
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 512 of 2009.                                                               B
      From the Judgment and Order dated 22.04.2008 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 706-SB
of 1999.
     Mahabir Singh, Sr. Adv., Ms. Preeti Singh, D. Mahesh Babu, Gagan
Deep Sharma, Ms. Swati Jindal, Amit K. Nair, Advs. for the Appellant.          C
      Ms. Ranjeeta Rohatgi, Adv. for the Respondent.
      The Judgment of the Court was delivered by
      R. SUBHASH REDDY, J.
       1. This Criminal Appeal is filed by the soleaccused, aggrieved by       D
the judgment dated 22.04.2008 passed in Criminal Appeal No.706-SB
of 1999 passed by the High Court of Punjab and Haryana at Chandigarh.
       2. The appellant herein was convicted for the offence punishable
under Section 18 of Narcotic Drugs and Psychotropic Substances Act,
1985 (for short ‘NDPS Act, 1985’), vide the judgment dated 20.05.1999,         E
passed by the Special Judge, Ferozepur, for offence under Section 18
of NDPS, 1985 and was sentenced to undergo rigorous imprisonment
for a period of 10 years and to pay a fine of Rs. 1,00,000/- (Rupees One
Lakh) in default of payment of the same, to undergo rigorous imprisonment
for another period of one year.                                                F
       3. The case of the prosecution, in brief, is that on 12.09.1996,
Devi Lal, HC (PW-1), Darbara Singh, S.I.(PW-2), along with other police
officials were going from Dalbir Khera towards Waryam Khera, in a
private jeep, on patrol duty, and when they reached near the bridge of
Canal minor, the appellant-accused was seen coming from the opposite           G
direction, carrying a bag in his right hand. On seeing the police party, the
appellant-accused turned towards the Southern bank of the canal, but
was apprehended on suspicion. The search of the bag, carried by the
accused, in the presence of ASP, Abohar, who was called to the spot, in

                                                                               H
310            SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A     accordance with the provisions of the law, resulted into recovery of 1 kg
      750 grams of opium. Upon seizure, 2 samples of 10 grams each, were
      separated and the remaining opium was put into the same bag. The
      samples were duly sealed and taken into possession. Thereafter, Ruqa
      was sent to the police station, on the basis whereof an FIR was registered.
      The accused was arrested and after completion of the investigation, he
B
      was challaned. On appearance in the court, the documents relied upon
      by the prosecution were supplied to the accused. A charge under Section
      18 of the Act was framed against him, to which he pleaded not guilty
      and claimed trial.
             4. To prove the charge against the appellant on behalf of the
C     prosecution, four witnesses were examined i.e Devi Lal, HC, (PW-1),
      Darbara Singh, SI, (PW-2), SI (PW-3), and Sham Lal, Constable (PW-
      4). After closure of evidence, the statement of the accused under Section
      313 of Cr.P.C. was recorded and he was explained of all incriminating
      circumstances appeared against him, in the prosecution evidence. He
D     pleaded false implication, however, he did not lead any evidence in his
      defence. After appreciating the oral and documentary evidence on
      record, the learned Special Judge, Ferozepur, vide his judgment dated
      20.05.1999, in Sessions Trial No.17/1999, by recording a finding that
      prosecution has proved the guilt of the accused for offence under Section
      18 of the Act, in keeping in his possession 1 kg 750 grams of opium in
E     the area of village Dalmir Khera, convicted the appellant, he was
      sentenced to rigorous imprisonment for 10 years and to pay a fine of
      Rs.1,00,000/- (Rupees One Lakh) in default, to undergo rigorous
      imprisonment for one year.
            5. Aggrieved by the aforesaid judgment of the Trial Court, the
F     appellant herein has filed a criminal appeal No. 706-SB before High
      Court of Punjab and Haryana at Chandigarh. The High Court by
      impugned judgment dated 22.04.2008, dismissed the appeal filed by the
      appellant herein and confirmed the judgment and order of sentence dated
      20.05.1999, passed by the Special Judge, Ferozepur.
G           6. We have heard Sri Mahabir Singh, learned senior counsel
      appearing for the appellant assisted by Mr. D.Mahesh Babu, advocate-
      on-record and Ms. Ranjeeta Rohatgi, learned counsel appearing for the
      respondent-State.

H
             SURINDER KUMAR v. STATE OF PUNJAB                                311
                   [R. SUBHASH REDDY, J.]

        7. In this appeal, it is mainly contended by learned senior counsel   A
for the appellant that Sri Joginder Singh, ASI to whom Yogi Raj, SHO
(PW-3) handed over the case property on 13.09.1996 was not examined
thus link evidence was incomplete, in spite of the same Trial Court and
High Court has committed error in convicting the appellant. Further it is
submitted that though independent witnesses were there in the patrolling
                                                                              B
party, such witnesses were not examined and conviction was solely based
on the official witnesses. Further it is submitted that S.K. Asthana, ASP
who is claimed to have joined to the party by the police, was not even
examined and in fact he was not there and opium was not recovered in
his presence. It is also pleaded thus there is a violation of provision
under Section 50 of NDPS Act, 1985.                                           C
       8. Learned senior counsel appearing for the appellant, to buttress
his submissions, placed reliance on the following judgments:
       (i)   Trimukh Maroti Kirkan v. State of Maharashtra1.
       (ii) Noor Aga v. State of Punjab & Anr2.                               D
                                             3
       (iii) Mohan Lal v. State of Punjab .
        9. On the other hand, learned counsel for the respondent-state
has submitted that the prosecution has proved the case by leading cogent
evidence, whichproved guilt of the appellant beyond reasonable doubt
and there are no grounds to interfere with the same. Learned counsel          E
has submitted that merely because prosecution has not examined any
independent witness, same would not necessarily lead to the conclusion
that the appellant has been falsely implicated. He placed reliance on the
judgment in the case of Jarnail Singh v. State of Punjab4. Further
recent judgment of this Court in the case of Varinder Kumar v. State          F
of Himachal Pradesh5, is also relied on wherein this Court has held
that all pending criminal prosecutions, trials and appeals prior to the law
led down in Mohan Lal3, shall continue to be governed by the individual
facts of the case.
       10. According to learned senior counsel for the appellant, Joginder
                                                                              G
Singh, ASI to whom Yogi Raj, SHO (PW-3) handed over the case property
1
  (2006) 10 SCC 681
2
  (2008)16 SCC 417
3
  (2018)17 SCC 627.
4
  (2011)3 SCC 521.
5
  (2019) SCC Online SC 170                                                    H
312             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A     for producing the same before the Illaqa Magistrate and who returned
      the same to him after such production was not examined, as such, link
      evidence was incomplete. In this regard, it is to be noticed that Yogi Raj
      SHO handed over the case property to Joginder Singh, ASI, for production
      before the Court. After producing the case property before the Court,
      he returned the case property to Yogi Raj, SHO (PW-3) with the seals
B
      intact. It is also to be noticed that Joginder Singh, ASI was not in
      possession of seals of either of the investigating officer or of Yogi Raj,
      SHO. He produced the case property before the Court on 13.09.1996
      vide application Ex.P-13, the concerned Judicial Magistrate of First Class,
      after verifying the seals on the case property, passed the order Ex.P-14
C     to the effect that since there was no judicial malkhana at Abohar, the
      case property was ordered to be kept in safe custody, in Police Station
      Khuian Sarwar till further orders. Since Joginder Singh, ASI was not in
      possession of the seals of either of the SHO or of the Investigating
      Officer, the question of tampering with the case property by him did not
      arise at all.
D
             11. Further he has returned the case property, after production of
      the same, before the Illaqa Magistrate, with the seals intact, to Yogi
      Raj, SHO. In that view of the matter, the Trial Court and the High Court
      have rightly held that non-examination of Joginder Singh, did not, in any
      way, affect the case of prosecution. Further, it is evident from the report
E     of the Chemical Examiner, Ex.P-10, that the sample was received with
      seals intact and that the seals on the sample, tallied with the sample seals.
      In that view of the matter, the chain of evidence was complete.
            12. The next contention of learned senior counsel Sri Mahabir
      Singh is that the ASP, who was summoned to the spot, in whose presence
F     search and recovery was effected, was not examined. As such, it is
      submitted that the non-examination of ASP is fatal to the case of
      prosecution and it is in violation of Section 50 of NDPS Act, 1985.
             13. It is the specific case of the prosecution that on 12.09.1996,
      Darbara Singh, SI, (PW-2) along with other police officials were going
G     from Dalbir Khera-2 towards Waryam Khera in a private jeep, when
      they reached near the bridge of Canal Minor, theappel l ant -accused
      was seen coming from opposite direction carrying a bag. It is alleged
      that on seeing the police party, he turned towards the Southern bank of
      the canal but was apprehended on suspicion. It is specifically pleaded
H     that the ASP, Abhor who was called at the spot and in his presence his
              SURINDER KUMAR v. STATE OF PUNJAB                                 313
                    [R. SUBHASH REDDY, J.]

bag was searched which resulted into recovery of 1 kg 750 grams of              A
opium. The Trial Court as well as the High Court, has recorded a finding
that the perusal of the record reveals the ASP was summoned number
of times but either service was not effected or as and when he was
served, he sent a request for exemption from personal attendance stating
valid reasons. Further, it appears that the High Court has issued directions
                                                                                B
to the Trial Court to decide the case before 30.04.1999. As much as
S.K. Asthana, ASP was not examined by 30.04.1999, a request for an
extension was sought by the Special Judge, Ferozepur and it was
adjourned to 17.05.1999. Even by 17.05.1999, the ASP could not be
served as he was on leave. In view of such reasoning assigned by the
Trial Court, as well as the High Court, merely because S.K. Asthana,            C
ASP was not examined, it cannot be said that prosecution has failed to
prove its case. It is clear from the evidence on record that he was
summoned at the time of search and seizure and only in his presence
search was conducted, as such, there is no violation of Section 50 of the
NDPS Act.
                                                                                D
       14. Further, it is contended by learned senior counsel appearing
for the appellant that no independent witness was examined, despite the
fact they were available. In this regard, it is to be noticed from the
depositions of Devi Lal, Head Constable (PW-1), during the course of
cross-examination, has stated that efforts were made to join independent
witnesses, but none were available. The mere fact that the case of the          E
prosecution is based on the evidence of official witnesses, does not mean
that same should not be believed.
       15. The judgment in the case of Jarnail Singh v. State of Punjab4,
relied on by the counsel for the respondent-State also supports the case
of the prosecution. In the aforesaid judgment, this Court has held that         F
merely because prosecution did not examine any independent witness,
would not necessarily lead to conclusion that accused was falsely
implicated. The evidence of official witnesses cannot be distrusted and
disbelieved, merely on account of their official status. In the case of
State, Govt. of NCT of Delhi v. Sunil & Anr.6 it was held as under:             G
         “It is an archaic notion that actions of the Police Officer, should
         be approached with initial distrust. It is time now to start placing
         at least initial trust on the actions and the documents made by the
         Police. At any rate, the Courts cannot start with the presumption
6
    (2001)1 SCC 652                                                             H
314             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A            that the police records areuntrustworthy. AS a presumption of
             law, the presumption would be the other way round. The official
             acts of the Police have been regularly performed is a wise
             principle of presumption and recognized even by the Legislature”.
             16. Learned counsel also placed reliance on the judgment of this
B     Court in the case of Mohan Lal3 to support his argument that informant
      and investigator cannot be the same person. But in the subsequent
      judgment, in the case of Varinder Kumar5 this Court held that all pending
      criminal prosecutions, trials and appeals prior to law laid down in Mohan
      Lal3, shall continue to be governed by individual facts of the case.
C            17. Having regard to oral and documentary evidence placed on
      record, we are in agreement with the findings recorded by the Trial
      Court and High Court. From the evidence on record in this case the
      prosecution has proved the guilt of the appellant beyond reasonable doubt.
      The conviction recorded and the sentence imposed is in conformity with
      the provisions of law and evidence on record, thus no interference is
D     called for. Accordingly, this appeal is devoid of merits, and the same is
      dismissed.
             18. As the appellant-accused is on bail, the bail bonds are cancelled.
      He shall surrender within a period of four weeks from today, to serve
      remaining period of sentence, failing which, the Chief Judicial Magistrate,
E     shall take necessary steps to take the appellant into custody to serve
      remaining period of sentence.


      Kalpana K. Tripathy                                          Appeal dismissed.

F




G




H