Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1576 OF 2009

Kashmiri Lal ...Appellant

Versus

State of Haryana

...Respondent

J U D G M E N T

Dipak Misra, J.

This Appeal by Special Leave is directed against the

judgment of conviction and order of sentence dated July

31, 2008 passed by the High Court of Punjab and Haryana

at Chandigarh in Criminal Appeal No. 543-SB of 1996

whereby the learned Single Judge has given the stamp of

approval to the conviction and sentence recoded by the

learned Additional Sessions Judge, Kurukshetra in S.T. No.

Page 2 15 of 1993 on 24.7.1996 whereby he, after finding the

accused-appellant guilty of the offence punishable under

Section 18 of the Narcotic Drugs & Psychotropic

Substances Act, 1985 (for brevity ‘the Act’), had

sentenced him to undergo rigorous imprisonment for a

period of ten years and to pay a fine of Rs.1,00,000/- and,

in default of payment of fine, to suffer further rigorous

imprisonment for a period of one year.

2.The factual matrix as has been undraped by the

prosecution is that on 23.12.1992 about 10.00 A.M.,

Kaptan Singh, the Sub-Inspector, along with other

police officials, was present near Deer Park, Pipli, in

connection with excise checking in a Tata Mobile

Vehicle. Receiving a secret and reliable information

to the effect that the accused-appellant would come

to the ‘dhaba’ situated on the G.T. Road, on his

scooter, carrying opium and if a picket was held, he

could be apprehended, he sent a V.T. message to the

Additional Superintendent of Police to reach the

place. Thereafter, Kaptan Singh, along with other

police officials, went to the T-point of Jahajo Wali

Road on G.T. Road and held a picket. In the

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Page 3 meanwhile, the accused was seen coming on his

scooter, bearing No. DLS-1756 and at that time

Mohmad Akil, Additional S.P., Kurukshetra, along with

his staff arrived at the spot. He was apprised of the

situation and, thereafter, on his instructions search

of the tool box of the scooter was conducted and a

polythene bag containing of 5½ Kg. of opium was

recovered. Ten grams opium was separated as

sample and the remaining opium was put into a

separate container. The sample and the container,

containing the remaining opium, were converted into

parcels duly sealed with seals and taken into

possession vide a separate recovery memo. The

accused was arrested and a ruqa was sent to the

police station on the basis whereof a formal FIR was

registered. After completing the investigation the

charge-sheet was submitted before the competent

court.

3.Before the trial court the accused abjured his guilt,

pleaded false implication and claimed to be tried.

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Page 4 4.The prosecution to substantiate its case examined

Banarsi Das, Head Constable, PW-1, Dharam Singh,

ASI, PW-2, Mam Chand, Constable, PW-3, Ram Udit,

Head Constable, PW-4, Akil Mohamad, S.P., PW-5 and

Kaptan Singh and the Investigating Officer, PW-6.

The accused in his statement under Section 313 of

the Code of Criminal Procedure stated that he was

employed in the ‘dhaba’, namely, Man Driver Dhaba

at village Teora and he had been apprehended from

the ‘dhaba’ and falsely implicated. In support of his

defence, he examined Karan Singh, DW-1, who had

recorded the statements of PW-1 and PW-3.

5.Before the learned trial Judge, it was contended that

the prosecution had miserably failed to bring home

the charge by resting its case solely on the version of

official witnesses and not examining any independent

witness despite the fact that the accused was

apprehended and alleged contraband articles were

seized while he was in a ‘dhaba’; that there had been

non-compliance of Section 50 of the Act inasmuch as

he was not properly informed about his right to be

searched in presence of a gazetted officer or a

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Page 5 Magistrate; that the recovery from the tool box of the

scooter would not amount to conscious possession of

the contraband article by the accused; and that the

non-production of the scooter in court falsified the

version of the prosecution. The learned trial Judge

dealt with all the aspects and came to hold that the

search and seizure was valid; that the accused had

not been falsely implicated; and that the non-

production of the scooter did not in any manner

affect the case of the prosecution. Being of this view,

he found the accused guilty and sentenced him as

has been stated hereinbefore.

6.Against the conviction and sentence the accused

preferred an appeal before the High Court. Apart

from raising the contentions which were raised

before the learned trial Judge, a further submission

was put forth that as per the report of the Forensic

Science Laboratory morphine content contained in

the sample was found only to be 1.66% and as the

morphine percentage in the bulk of the opium was

required to be taken into consideration, the alleged

recovery of opium did not fall within the ambit of

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Page 6 non-commercial quantity and hence, the sentence

should have been imposed regard being had to the

non-commercial quantity and not commercial

quantity. The High Court concurred with the view

expressed by the learned trial Judge and proceeded

to deal with the additional submission and ultimately

held that as the seizure had taken place on

23.12.1992, the amendment which has been brought

into the Act in the year 2001 would not be attracted.

Be it noted, the non-production of the scooter before

the trial court was highlighted with immense

vehemence but the learned Single Judge repelled the

said submission being devoid of any substance and

further directed confiscation of the scooter in

question as envisaged under the provisions

contained in Sections 60(3) and 63 of the Act. The

aforesaid conclusions led to the dismissal of the

appeal.

7.Questioning the legal substantiality of the judgment

of conviction learned counsel for the appellant, has

raised the following contentions: -

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Page 7 (i)It was incumbent on the part of the prosecution to

examine the independent witnesses when the search

and seizure had taken at a public place, i.e., in a

‘dhaba’ and not to rely exclusively on the official

witnesses to prove the case against the accused.

(ii)There has been non-compliance of Section 50 of the

Act as he had not been informed about his right to be

searched in presence of a gazetted officer or a

Magistrate and that vitiates the conviction.

(iii)The High Court has fallen into serious error by not

treating the seized opium failing within non-

commercial quantity despite the report of the

Forensic Science Laboratory that the morphine

content contained in the sample was 1.66%.

(iv)The non-production of the scooter creates an

incurable dent in the foundation of the case of the

prosecution and the said aspect having not been

appositely dealt with by the learned trial Judge as

well as by the High Court, the judgment of conviction

and order of sentence are liable to be set aside.

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Page 8 8.Learned counsel for the State, resisting the aforesaid

submissions, has advanced the following

proponements: -

(a)The non-examination of independent witnesses in the

case at hand does not affect the prosecution case, for

there is no absolute rule that the prosecution cannot

establish the charge against the accused by placing

reliance on the official witnesses.

(b)As the contraband goods have been seized from the

tool box of the scooter and not from the person of the

accused, Section 50 of the Act has no applicability.

(c)The morphine content in the seized opium, in the

case at hand, has no relevance to determine the

commercial or non-commercial quantity regard being

had to the fact that the occurrence had taken place in

the year 1992 whereas the amendment was

incorporated in the statute book in 2001.

(d)The non-production of the scooter in the court cannot

be a ground for setting aside the conviction since all the

witnesses have specifically mentioned about the

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Page 9 registration number of the scooter and there is no

justification to discard their testimony.

9. As far as first submission is concerned, it is evincible

from the evidence on record that the police officials

had requested the people present in the ‘dhaba; to

be witnesses, but they declined to cooperate and, in

fact, did not make themselves available. That apart,

there is no absolute command of law that the police

officers cannot be cited as witnesses and their

testimony should always be treated with suspicion.

Ordinarily, the public at large show their

disinclination to come forward to become witnesses.

If the testimony of the police officer is found to

reliable and trustworthy, the court can definitely act

upon the same. If in the course of scrutinising the

evidence the court finds the evidence of the police

officer as unreliable and untrustworthy, the court

may disbelieve him but it should not do so solely on

the presumption that a witness from the department

of police should be viewed with distrust. This is also

based on the principle of quality of the evidence

weighs over the quantity of evidence. These aspects

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Page 10 have been highlighted in State of U.P. v. Anil

Singh

1

, State, Govt. of NCT of Delhi v. Sunil and

another

2

and Ramjee Rai and others v. State of

Bihar

3

. Appreciating the evidence on record on the

unveil of the aforesaid principles, we do not perceive

any acceptable reason to discard the testimony of

the official witnesses which is otherwise reliable and

absolutely trustworthy.

10.The second plank of submission pertains to non-

compliance of Section 50 of the Act. There is no

dispute over the fact that the seizure had taken place

from the tool box of the scooter. There is ample

evidence on record that the scooter belongs to the

appellant. When a vehicle is searched and not the

person of an accused, needless to emphasise,

Section 50 of the Act is not attracted. This has been

so held in Ajmer Singh v. State of Haryana

4

,

Madan Lal v. State of H.P.

5

and State of H.P. v.

Pawan Kumar

6

. Thus, the aforesaid submission of

1

1988 Supp SCC 686

2

(2001) 1 SCC 652

3

(2006) 13 SCC 229

4

(2010) 3 SCC 746

5

(2003) 7 SCC 465

6

(2005) 4 SCC 350

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Page 11 the learned counsel for the appellant is without any

substance.

11.The third limb of submission pertains to

determination of commercial and non-commercial

quantity. The learned counsel for the appellant has

commended us to the decision in E. Micheal Raj v.

Intelligence Officer, Narcotic Control Bureau

7

.

In the said case it has been held as follows: -

“12.As a consequence of the Amending Act,

the sentence structure underwent a drastic

change. The Amending Act for the first time

introduced the concept of ‘commercial quantity’

in relation to narcotic drugs or psychotropic

substances by adding clause (viia) in Section 2,

which defines this term as any quantity greater

than a quantity specified by the Central

Government by notification in the Official

Gazette. Further, the term ‘small quantity’ is

defined in Section 2, clause (xxiiia), as any

quantity lesser than the quantity specified by

the Central Government by notification in the

Official Gazette. Under the rationalized

sentence structure, the punishment would vary

depending upon whether the quantity of

offending material is ‘small quantity’,

‘commercial quantity’ or something in-

between.”

After so stating, the two learned Judges proceeded to

state that the intention of the legislature for introduction

of the amendment to punish the people who commit less

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2008 (4) SCALE 592

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Page 12 serious offence with less severe punishment and those

who commit great crimes, to impose more severe

punishment. Be it noted, in the said case, the narcotic

drug which was found in possession of the appellant as

per the Analyst’s report was 60 gms., which was more

than 5 gms., i.e., small quantity, but less than 250 gms.,

i.e., commercial quantity.

12.In the case at hand, the High Court has opined that

as the opium was seized on 23.12.2992, the

amendment brought in the statute book would have

no applicability. It is also wroth noting that the

appeal was preferred in the year 1996. In Basheer

Alias N.P. Basheer v. State of Kerala

8

while

dealing with the constitutional validity of the proviso

to sub-section (1) of Section 41 of the Narcotic Drugs

and Psychotropic Substances (Amendment) Act, 2001

(Act 9 of 2001), this Court upheld the constitutional

validity of the said provision and opined thus: -

“In the result, we are of the view that the

proviso to Section 41(1) of the amending Act 9

of 2001 is constitutional and is not hit by Article

14. Consequently, in all cases, in which the trial

had concluded and appeals were pending on

8

(2004) 3 SCC 609

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Page 13 2.10.2001, when amending Act 9 of 2001 came

into force, the amendments introduced by the

Amending Act 9 of 2001 would not be applicable

and they would have to be disposed of in

accordance with the NDPS Act, 1985, as it stood

before 2.10.2001.”

13.Yet again in Nayak Ramesh Chandra Keshavlal v.

State of Gujarat

9

a contention was raised that when

the quantity seized is small one, as enumerated in

notification bearing SO No. 1055 (E) dated

19.10.2001, published in the Gazettee of India

(Extra), Part II, Section 3(ii) dated 19.10.2011, the

punishment should be less. The Court, while

repealing the said submission expressed as follows: -

“Proviso to Section 41 of the amending Act

referred to above, lays down that the provisions

of the amending Act shall not apply to cases

pending in appeal, validity of which was

challenged before this Court on the ground that

the same, being discriminatory, was violative of

Article 14 of the Constitution. But this Court in

the case of Basheer upheld the validity of the

said provision and, consequently, the provisions

of the Amendment Act shall have no application

in the present case, as on the date of coming

into force of the amending Act, the case of the

appellant was pending in appeal before the High

Court.”

14.As in the case at hand, the appeal was pending in

1996, the ameliorative provision brought by way of

9

(2004) 11 SCC 399

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Page 14 amendment in the year 2001 would not be applicable

to the accused-appellant. Therefore, the submission

advanced by the learned counsel for the appellant is

devoid of any substratum and, accordingly, stands

rejected.

15.The last contention urged relates to the non-

production of the scooter in the court. The learned

counsel for the appellant has harped and hammered

on this submission and we must say that the

vehemence of the argument reflected in this regard

is much ado about nothing. All the documents

pertaining to the scooter were seized and the

witnesses had stated in a categorical manner about

the registration number of the scooter. From the

material brought on record, it is crystal clear that the

scooter belonged to the appellant and the search and

seizure was made in the tool box of the scooter.

Under these circumstances, it can safely be

concluded that the submission that the scooter was

not produced in the court is entirely devoid of merit

and, in fact, it amounts to an effort which is like

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Page 15 building a castle in Spain. Thus, we unhesitatingly

repel the aforesaid contention.

16.Resultantly, the appeal, being devoid of merit, stands

dismissed.

........................................................J.

[Dr. B. S. Chauhan]

........................................................J.

[Dipak Misra]

New Delhi;

May 16, 2013

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