CRA-S-13-SB-2008 1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRA-S-13-SB-2008

Reserved on:-09.09.2026

Pronounced on:-14.09.2026

Uploaded on:- 14.09.2026

Whether only operative part of the judgment is

Pronounced or the full judgment is pronounced: operative part/full judgment

MAJOR SINGH @ JHANFA ...Appellant

Versus

STATE OF PUNJAB ....Respondent

CORAM: HON'BLE MS. JUSTICE MANDEEP PANNU

Present:-Dr. Ram Kumar Singla, Amicus Curiae

for the appellant.

Mr. Sahil Chowdhary, AAG, Punjab.

*****

MANDEEP PANNU, J.

1. Present appeal has been preferred against the judgment of

conviction and order of sentence dated 18.12.2007, passed by the learned

Special Judge, Bathinda, in case FIR No. 72 dated 16.09.2006, registered

under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,

1985, at Police Station Phul, by which the learned Special Judge, Patiala,

convicted the accused under Section 15 of the NDPS Act and sentenced him

as under:-

Under Section Imprisonment

awarded

Fine Imprisonment in

default of payment

of fine

Section 15 of NDPS ActR.I. for 10 years Rs.1,00,000/-R.I. for 06 months

CRA-S-13-SB-2008 2

2. The brief facts of the case of the prosecution are that on

16.9.2006, the police party headed by A.S.I. Gurdev Singh, comprising H.C.

Jora Singh No. 368 along with other police officials of Police Station Phul,

was proceeding from Phul to Mehraj on patrol duty in government vehicle

bearing registration No. PB-12G/7563. When the police party reached the

bridge of canal in the area of Mehraj, one Jit Singh son of Gajjan Singh,

resident of Phul, met the police party there and joined it. At that time, H.C.

Jora Singh No. 368 informed A.S.I. Gurdev Singh separately that he had

received a secret information that Major Singh son of Jit Singh, resident of

Sidhana, was habitual in selling poppy husk and, if a raid was conducted, the

same could be recovered from him in large quantity. Taking the information

to be credible, a raid was conducted by A.S.I. Gurdev Singh at the cattle

shed house of the accused at about 4.30 p.m. at village Sidhana. The accused

was found placing the bags in order in his cattle house behind the bales of

straw. On seeing the police party, the accused became nervous and sat down

on the bags. He was apprehended and his whereabouts were ascertained.

A.S.I. Gurdev Singh suspected that some contraband articles had been

placed by the accused in both the bags behind the bales of straw in his cattle

house. A.S.I. Gurdev Singh apprised the accused about his statutory right of

search before a Gazetted Officer or a Magistrate. The accused insisted upon

his search before a Gazetted Officer and a memo to this effect was prepared,

which was thumb-marked by the accused and attested by the witnesses.

D.S.P. Gurmeet Singh was called to the spot and reached there. D.S.P.

Gurmeet Singh informed the accused of his right of search before another

Gazetted Officer or a Magistrate, but the accused reposed confidence in him

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with regard to the search of the gunny bags and a consent memo of the

accused to this effect was prepared. A.S.I. Gurdev Singh thereafter searched

the gunny bags under the supervision of D.S.P. Gurmeet Singh and poppy

husk was recovered from each of the gunny bags from the possession of the

accused. Separate numbers were allotted to both the gunny bags. A.S.I.

Gurdev Singh took out a sample of 100 grams from each of the gunny bags

and the samples were numbered separately. The poppy husk in each of the

gunny bags, on weighment, was found to be 34 kilograms 900 grams.

Separate sealed parcels thereof were prepared by sealing them with seal

impression “GS” by A.S.I. Gurdev Singh at the spot. He also prepared a

specimen sample seal at the spot and, after use, the seal was handed over to

H.C. Jora Singh. The entire case property was taken into police possession

vide separate recovery memo, which was attested by the witnesses. From the

further personal search of the accused, nothing else was recovered and a

memo in this respect was prepared. Ruqa was sent to Police Station Phul,

whereupon the FIR of the case was registered against the accused by A.S.I.

Jugraj Singh. The Investigating Officer completed the usual investigation at

the spot and, on return to Police Station Phul on the same day, A.S.I. Gurdev

Singh produced the entire case property, in sealed parcels, before S.H.O.

Sukhdev Singh along with the sample seal. S.H.O. Sukhdev Singh verified

the facts of the case and put his seal impression “SS” on the entire case

property and sample seal and kept the same in his custody. S.H.O. Sukhdev

Singh thereafter produced the case property and sample seal before the

Magistrate and moved an application for inventory report and another

application under Section 52-A of the Act and obtained the orders of the

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Magistrate thereupon. Photographs of the case property were also taken in

the presence of the Magistrate. One sample of 100 grams of poppy husk was

also drawn from each of the gunny bags in the presence of the Magistrate,

which were sealed with seal “BK”. The sample seal was also prepared in this

regard in the presence of the Magistrate. On receipt of the report of the

Chemical Examiner regarding the contents of the samples to be chura poppy

heads and on completion of the investigation of the case, challan was

presented against the accused by the S.H.O. of Police Station Phul.

3. Charge in this case was framed against the accused for the

offence under Section 15 of the Narcotic Drugs and Psychotropic Substances

Act, 1985, to which the accused pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined P.W.1

Constable Kewal Singh, who is a formal witness and deposed regarding the

affidavit pertaining to the deposit and handling of the case property. P.W.2

S.I. Sukhdev Singh was the S.H.O., before whom the case property was

produced by the Investigating Officer after its recovery from the accused and

after completing the necessary formalities of sealing the same. P.W.3 A.S.I.

Gurdev Singh is the Investigating Officer, who deposed in detail regarding

the recovery of the case property from the accused. P.W.4 Gurmeet Singh,

D.S.P., is the Gazetted Officer who was called to the spot as the accused had

stated that he wanted to get the search conducted before a Gazetted Officer.

Thereafter, P.W. Jit Singh was given up as having been won over by the

accused, whereupon the prosecution closed its evidence.

5. Thereafter, the statement of the accused was recorded under

Section 313 Cr.P.C., wherein he denied the allegations of the prosecution

CRA-S-13-SB-2008 5

case and pleaded false implication. In his defence, the accused examined

D.W.1 Mohinder Singh and thereafter closed his evidence.

6. The learned Special Court heard the arguments advanced by the

learned A.P.P. for the State and the learned defence counsel and, thereafter,

convicted the accused in the manner as detailed in paragraph No. 1 of this

judgment.

7. Feeling aggrieved by the above-said judgment passed by the

learned Special Judge, the present appeal has been preferred by the accused-

appellant, as detailed in paragraph No. 1 of this judgment.

8. Notice of the appeal was given to the State, which has opposed

and contested the same.

9. During the pendency of the instant appeal, the sentence of the

accused-appellant was suspended vide order dated 19.05.2011.

10. Initially, the appellant was represented by a counsel, however,

thereafter, none appeared on behalf of the appellant. Accordingly, Mr. Ram

Kumar Singla, Advocate, was appointed as Amicus Curiae to assist the

Court in the matter.

11. Learned Amicus Curiae for the appellant, at the very outset,

argued that in the present case, a perusal of the consent memos, Ex.PC and

Ex.PD, would reveal that while giving the option to the accused-appellant,

prior to the recovery of the contraband, for getting the search of the gunny

bags conducted, it has been specifically mentioned in the consent memo,

Ex.PC, that the accused-appellant could get his search conducted by himself,

i.e. the Investigating Officer/police officer, or by some other Gazetted

Officer, or by a Magistrate. It is submitted that the accused-appellant,

CRA-S-13-SB-2008 6

however, did not repose confidence in the Investigating Officer and stated

that he wanted his search to be conducted through some other Gazetted

Officer, whereupon D.S.P. Gurmeet Singh was called to the spot. Learned

Amicus Curiae further submitted that a perusal of the subsequent consent

memo, Ex.PD, would reveal that even therein, the accused-appellant was

given the option of getting the search conducted by himself, i.e. the D.S.P.,

or by any other Gazetted Officer, or by any Magistrate. Learned Amicus

Curiae for the appellant contended that the aforesaid manner of giving the

option is in clear violation of the mandatory provisions of Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985, inasmuch as the

statute contemplates an option to the person to be searched as to whether he

would like to be searched in the presence of a Magistrate or a Gazetted

Officer, whereas the Investigating Officer, as well as the D.S.P., while

apprising the accused-appellant of his right, additionally offered him the

third option of getting the search conducted by the officer himself. It was

argued that the inclusion of such an impermissible third option renders the

consent memos, Ex.PC and Ex.PD, legally defective and amounts to non-

compliance with the mandatory requirement of Section 50 of the Act.

Learned Amicus Curiae submitted that the fact that the appellant ultimately

opted to be searched in the presence of a Gazetted Officer would not cure

the defect in the manner in which the statutory right was conveyed to him, as

the offer itself was not in conformity with the mandate of Section 50 of the

Act. Relying upon the judgment of the Hon’ble Supreme Court, “State of

Rajasthan v. Parmanand”, (2014) 5 SCC 345, it was contended that the

addition of the third option of being searched by the police officer himself is

CRA-S-13-SB-2008 7

impermissible in law and, consequently, the recovery based upon such

defective consent cannot be sustained.

12. Learned State counsel, on the other hand, argued that the

provisions of Section 50 of the Act are not applicable in the present case, as

no personal search of the accused-appellant was conducted for effecting the

recovery of the contraband. Rather, it was the search of the gunny bags

which was conducted. It was specifically mentioned in the consent memos,

Ex.PC and Ex.PD, that the IO and D.S.P respectively, suspected some

intoxicating substance to be concealed in the cattle shed of the accused

behind the door of the room and, accordingly, the accused consented to the

search of both the jute bags lying therein. It was, therefore, contended that

the judgment relied upon by learned Amicus Curiae for the appellant are not

applicable to the facts of the present case. It was further argued that even if

the third option was given to the accused, the same would not be fatal to the

case of the prosecution.

13. I have considered the rival submissions and have carefully gone

through the evidence available on record, particularly the consent memos

Ex.PC and Ex.PD. The submission advanced on behalf of the appellant

cannot be accepted in the facts and circumstances of the present case. There

can be no dispute with the proposition of law that where a personal search of

an accused is to be conducted and the provisions of Section 50 of the Act are

attracted, the accused has to be apprised of his statutory right to be searched

in the presence of a Gazetted Officer or a Magistrate. It is equally well

settled that the police officer cannot, while apprising the accused of such

right, introduce a third option of being searched by the police officer

CRA-S-13-SB-2008 8

himself. Thus, if the search in the present case were a search of the person of

the accused to which Section 50 was applicable, the contention raised by

learned Amicus Curiae for the appellant would undoubtedly merit

acceptance. However, the question which arises for consideration is whether

the search which resulted in the recovery of the contraband from the

accused-appellant was a personal search within the meaning of Section 50 of

the Act.

14. In this regard, the distinction between a search of the person and

a search of a bag, container or other article in the possession of an accused

assumes significance. Section 50 of the Act is attracted only when the person

of the accused is proposed to be searched. The Hon’ble Supreme Court in

Parmanand’ case (supra), itself drew a clear distinction between the two

situations and held that if merely a bag carried by a person is searched,

without there being any search of his person, Section 50 has no application,

it is only where the bag is searched and the person is also searched that the

provisions of Section 50 become applicable.

15. The aforesaid principle has subsequently been considered and

reiterated in detail by the Hon’ble Supreme Court in “Ranjan Kumar

Chadha v. State of Himachal Pradesh” 2023 INSC 878, wherein the Court

explained that the safeguards contained in Section 50 relate to the search of

the physical body of the person and do not extend to the search of a bag,

briefcase, container or other article. The Court specifically considered the

argument that an accused had been given a third option of being searched

before a police officer and held that the question of compliance with Section

50 arises only where the search of the person is involved. Where the

CRA-S-13-SB-2008 9

recovery is from a bag and there is no search of the person, Section 50 is not

attracted.

16. Tested on the touchstone of the aforesaid principles, the facts of

the present case make it clear that the search pursuant to which the recovery

was effected was not a personal search of the accused-appellant. The

prosecution case, right from the stage of the secret information, was that the

accused was suspected of keeping poppy husk concealed in his cattle shed.

When the police party reached the cattle shed, two gunny bags were found

lying there. The consent memo Ex.PC prepared by the Investigating Officer

itself makes it clear that the suspected intoxicating substance was lying

concealed in the cattle shed and that the consent sought from the accused

related to the search of the two gunny bags. Since the accused did not repose

confidence in the Investigating Officer and expressed his desire that the

search be conducted through some other Gazetted Officer, D.S.P. Gurmeet

Singh was called to the spot. Thereafter, the consent memo Ex.PD was

prepared by the D.S.P. Even this memo relates to the proposed search of the

gunny bags lying in the cattle shed. It is pursuant to this exercise that the two

gunny bags were searched and the contraband was recovered therefrom.

17. It is true that in the present case, after the recovery, a personal

search of the accused was also conducted and nothing incriminating was

recovered therefrom. However, such subsequent personal search, from

which admittedly nothing was recovered, cannot be equated with the search

which resulted in the recovery of the contraband. The recovery in the present

case was complete upon the search of the two gunny bags. The personal

search was a separate and subsequent formality and the contraband forming

CRA-S-13-SB-2008 10

the subject matter of the present prosecution was not recovered as a result

thereof. The appellant cannot, therefore, seek to invalidate the recovery of

the contraband from the gunny bags by relying upon the language of the

consent memos pertaining to the search of those bags, when the statutory

requirement of Section 50 was not attracted to such search.

18. Consequently, even assuming that the Investigating Officer,

while preparing Ex.PC, and thereafter the D.S.P., while preparing Ex.PD,

incorporated an additional option by stating that the search could be

conducted by the officer himself, such inclusion cannot be held to constitute

a violation of Section 50 in the present case, because the search to which the

said consent memos related was the search of the two gunny bags and not

the personal search of the accused. The third-option principle laid down in

Parmanand’s case (supra) operates where Section 50 is attracted, it cannot

be applied in a case where the statutory provision itself has no application to

the search in question.

19. Accordingly, the first contention raised by learned Amicus

Curiae for the appellant is found to be devoid of merit and is rejected. The

recovery of the contraband from the two gunny bags cannot be held to be

vitiated on the ground of alleged non-compliance with Section 50 of the Act.

20. Learned Amicus Curiae for the appellant argued that P.W.1

Constable Kewal Singh, while appearing in the witness box, tendered his

affidavit, Ex.PA. It was, however, argued by learned Amicus Curiae for the

appellant that although, in his examination-in-chief, P.W.1 tendered his

affidavit, Ex.PA, into evidence, in his cross-examination he admitted that he

was also a member of the police party on the date when the recovery was

CRA-S-13-SB-2008 11

effected. Learned Amicus Curiae submitted that the answers given by him in

cross-examination are vague and demonstrate that he was not aware of the

material proceedings allegedly conducted at the spot. He stated that he did

not know who had brought the weighing material, how many memos had

been prepared, or who the Gazetted Officer was on that day. He further

stated that all the writing work was done while sitting in the police station

and that he did not know how many days were taken to complete the writing

work. He also deposed that he did not know who had joined the police party

as a private witness on that day, whether any respectable person had been

called near the place of recovery by the Investigating Officer, or even the

shape of the seal of the Investigating Officer. It was, therefore, argued by

learned Amicus Curiae for the appellant that the aforesaid replies of P.W.1

show that although he was admittedly a member of the police party, he was

unaware of the proceedings allegedly conducted at the spot, which creates a

serious doubt regarding the prosecution version. Learned Amicus Curiae

submitted that his testimony indicates that nothing was actually done in his

presence at the place of recovery and that the entire writing work was

subsequently carried out at the police station, thereby casting doubt upon the

alleged recovery and suggesting that a false case was foisted upon the

accused.

21. Learned State counsel, on the other hand, argued that P.W.1 is

merely a witness with regard to the handling and deposit of the case property

and has categorically deposed in his affidavit regarding the same, including

that there was no tampering with the case property during the period it

remained in his custody. It was submitted that even if P.W.1 stated in his

CRA-S-13-SB-2008 12

cross-examination that he was not aware of various proceedings conducted

at the spot, the same is not fatal to the case of the prosecution, particularly

when the recovery has been proved through the testimony of the

Investigating Officer, P.W.3 A.S.I. Gurdev Singh, and the Gazetted Officer,

P.W.4 D.S.P. Gurmeet Singh. It was, therefore, contended that the testimony

of P.W.1 cannot, by itself, create any doubt regarding the recovery effected

from the accused.

22. I have considered the aforesaid submission advanced by learned

Amicus Curiae for the appellant and have carefully examined the testimony

of P.W.1 Constable Kewal Singh. In my considered opinion, the criticism

levelled against the prosecution on the basis of his cross-examination does

not create any dent in the otherwise consistent prosecution case. The status

and role of P.W.1 in the present case have to be appreciated in their proper

perspective. He is not a witness of recovery in the sense that the prosecution

does not rely upon his testimony for proving the actual recovery of the

contraband from the accused. His role was confined to the subsequent

handling and transmission of the case property. He has tendered his affidavit

Ex.PA, wherein he has specifically stated that the case property was handed

over to him by S.I. Sukhdev Singh on 20.09.2006, that he took the same to

the office of the S.S.P., Patiala, and thereafter deposited it with the Chemical

Examiner on 21.09.2006, and, on his return, handed over the receipt to S.I.

Sukhdev Singh on 22.09.2006. He has further stated that the seals on the

case property remained intact during the period the same remained in his

custody. Thus, so far as his particular role in the chain of custody is

concerned, his evidence is clear and categorical.

CRA-S-13-SB-2008 13

23. Merely because P.W.1 happened to be a member of the police

party which proceeded to the spot does not necessarily mean that he must

have personal knowledge of every minute detail of the proceedings

conducted there. The fact that he was present with the police party and the

fact that he was subsequently entrusted with the case property are two

distinct aspects. The prosecution is not required to establish its entire case

through each and every member of the police party. What is required is that

the evidence, taken as a whole, should establish the recovery and the safe

custody and transmission of the case property beyond reasonable doubt. In

the present case, the actual recovery has been deposed to by P.W.3 A.S.I.

Gurdev Singh, the Investigating Officer, and his version finds material

corroboration from P.W.4 D.S.P. Gurmeet Singh, the Gazetted Officer who

was present at the spot and in whose presence the gunny bags were searched.

P.W.1 has a different and limited role in the prosecution evidence.

24. The answers elicited from P.W.1 in cross-examination, that he

did not know who had brought the weighing material, how many memos had

been prepared, who the Gazetted Officer was, whether any respectable

person had been called at the spot, or what was the shape of the seal of the

Investigating Officer, therefore, cannot be read in isolation so as to demolish

the prosecution case. At the highest, these answers demonstrate that P.W.1

was not conversant with the details of the investigation and the writing work

undertaken by the Investigating Officer. They do not constitute an admission

that no recovery was effected from the accused, nor do they constitute an

admission that the case property was fabricated at the police station. Most

importantly, P.W.1 has nowhere stated that he had seen the Investigating

CRA-S-13-SB-2008 14

Officer preparing a false case or that the case property handed over to him

was different from the property which had been seized.

25. The chain relating to the case property also stands materially

established. After the recovery, the case property was produced before S.I.

Sukhdev Singh, the S.H.O., who has been examined as P.W.2. The case

property was thereafter handled and transmitted in the manner stated by

P.W.1. The latter has specifically deposed that the seals remained intact

while the case property remained in his custody. The fact that the sample

ultimately reached the Chemical Examiner with the seals intact and the seals

were found to correspond with the specimen seal is a material circumstance

supporting the continuity and sanctity of the case property. Thus, where the

evidence establishes that the sample remained duly sealed and the Chemical

Examiner received it with the seals intact and tallying with the specimen

seal, the chain of custody is duly established.

26. Learned Amicus Curiae for the appellant further argued that

though an independent witness, namely Jit Singh, was allegedly joined by

the police party at the time of recovery, he was not examined by the

prosecution and was given up on the ground of having been won over by the

accused. It was contended that non-examination of the independent witness

casts a doubt upon the prosecution version, particularly when the recovery

rests upon the testimony of official witnesses.

27. Learned State counsel, on the other hand, argued that non-

examination of the independent witness is not fatal to the prosecution case.

Jit Singh had duly been joined in the proceedings, but was subsequently

given up by the prosecution as having been won over by the accused. It was

CRA-S-13-SB-2008 15

further submitted that the seal after use was not entrusted to Jit Singh and,

therefore, his non-examination does not affect the link evidence or the

sanctity of the case property.

28. I have considered the rival submissions. Mere non-examination

of an independent witness, by itself, is not sufficient to discard an otherwise

reliable and trustworthy prosecution case. In the present case, the

prosecution did make an effort to associate an independent witness, namely

Jit Singh, with the proceedings. However, he was subsequently given up on

the ground that he had been won over by the accused. Thus, it is not a case

where the police party deliberately avoided associating an independent

person despite his availability. The fact that a witness, after having been

joined, is subsequently not examined on account of having been won over

cannot, in itself, be made a ground to reject the testimony of the official

witnesses.

29. It is also significant that the prosecution case regarding the

recovery is supported by P.W.3 A.S.I. Gurdev Singh, the Investigating

Officer, as well as P.W.4 D.S.P. Gurmeet Singh, a Gazetted Officer, who was

called to the spot and in whose presence the search of the gunny bags was

conducted. Their testimony cannot be discarded merely on the ground that

they are official witnesses. There is no rule of law that the testimony of

police officials must necessarily be corroborated by an independent witness

before it can be acted upon. What is required is that their evidence should be

scrutinized carefully and, if found cogent, consistent and trustworthy, the

same can form the basis of conviction.

CRA-S-13-SB-2008 16

30. Further, the seal after use was not entrusted to Jit Singh and,

therefore, his non-examination does not create any missing link regarding

the custody or transmission of the case property. The evidence regarding the

sealing, custody and subsequent transmission of the samples has been

separately brought on record by the prosecution witnesses concerned. In

these circumstances, non-examination of Jit Singh does not cause any

prejudice to the accused nor does it create a reasonable doubt regarding the

recovery. Accordingly, the contention raised by learned Amicus Curiae for

the appellant on this count is also rejected.

31. Learned Amicus Curiae for the appellant further argued that the

prosecution has failed to establish on record that the cattle shed from which

the contraband was allegedly recovered was owned or possessed by the

accused-appellant. It was submitted that in the absence of proof regarding

the ownership or possession of the place of recovery, the alleged recovery

cannot safely be attributed to the accused.

32. Learned Amicus Curiae for the appellant also contended that the

testimony of D.W.1 Mohinder Singh, who stated that he was the Lambardar

of the village and knew the accused Major Singh, has not been properly

considered by the learned trial Court. D.W.1 deposed that on the date of

occurrence there was a fair of Baba, which he and accused Major Singh had

attended, and at about 2.00 p.m. the police officials took away Major Singh

from the fair, stating that he had a dispute with his relative Karnail Singh. He

further stated that when they went to the police station for securing the

release of Major Singh, the police refused to release him and that the

accused was thereafter falsely implicated in the present case. It was,

CRA-S-13-SB-2008 17

therefore, argued that the testimony of D.W.1 supports the plea of false

implication and creates a serious doubt regarding the prosecution version.

33. Learned State counsel, on the other hand, argued that so far as

the ownership or possession of the house in question is concerned, the same

has never been disputed by the accused. Rather, a specific suggestion was

put to P.W.3 A.S.I. Gurdev Singh that no search warrant for the house of the

accused had been obtained before conducting the raid, which was admitted

by him. A similar suggestion was put to P.W.4 D.S.P. Gurmeet Singh, who

also stated that no warrant had been obtained from the Court or any other

competent authority before searching the house of the accused. So far as the

testimony of D.W.1 is concerned, learned State counsel argued that the plea

of alibi has not been established on record and the testimony of a defence

witness, unsupported by any independent or contemporaneous material,

cannot displace the consistent prosecution evidence. It was further submitted

that D.W.1 admitted in cross-examination that he neither moved any

application before any higher authority nor approached the village Panchayat

regarding the alleged false implication or the alleged taking away of the

accused from the fair.

34. I have considered the rival submissions. So far as the contention

regarding the ownership or possession of the cattle shed is concerned, the

same does not merit acceptance. The prosecution case is that the contraband

was recovered from the cattle shed of the accused and, significantly, the

accused has nowhere taken a specific plea that the said cattle shed did not

belong to him or was not in his possession. The absence of a formal

document of ownership, in the circumstances of the present case, cannot by

CRA-S-13-SB-2008 18

itself be treated as sufficient to discard the prosecution version. Ownership

in the strict sense is not the only test, what is material is whether the place

from which the contraband was recovered was in the conscious possession

or control of the accused. The conduct of the accused at the spot, the manner

in which the gunny bags were found concealed in the cattle shed, and the

evidence of the recovery witnesses have to be considered cumulatively.

35. It is also significant that the defence itself put specific

suggestions to P.W.3 A.S.I. Gurdev Singh and P.W.4 D.S.P. Gurmeet Singh

regarding the alleged absence of a search warrant before conducting raid of

the house of accused. Both the witnesses, in response to the said

suggestions, stated that no search warrant had been obtained from the Court

or any other competent authority before conducting the search of the house

of the accused. Such suggestions, rather than advancing the plea that the

premises did not belong to the accused, proceed on the premise that it was

house of accused which was searched.

36. Coming to the evidence of D.W.1 Mohinder Singh, the defence

has sought to establish through him that the accused was present at a fair at

the relevant time and was taken away by the police, thereby suggesting false

implication. However, the plea of alibi is a plea of fact and the burden of

establishing it rests upon the person who sets it up. In the present case, apart

from the statement of D.W.1, no contemporaneous or independent material

has been produced to substantiate that the accused was at the fair at the

relevant time or that he was forcibly taken away therefrom by the police.

37. The testimony of D.W.1 is also required to be appreciated in the

light of his conduct as disclosed in cross-examination. He admitted that he

CRA-S-13-SB-2008 19

did not make any complaint or move any application before any higher

police or administrative authority regarding the alleged illegal detention or

false implication of the accused. He further did not approach even the village

Panchayat in this regard. His explanation that the police officials had

threatened that a case would be registered against anyone who made such a

complaint does not inspire confidence, particularly when no

contemporaneous material has been brought on record to substantiate such

alleged threat. If the accused had in fact been taken away from a public fair

in broad daylight and had thereafter been falsely implicated, one would

reasonably expect some contemporaneous protest or complaint from the

persons who, according to D.W.1, had gone to the police station for securing

his release.

38. It is true that the defence evidence cannot be discarded merely

because it has been produced by the accused. However, the Court has to

assess such evidence on the same touchstone of probability, consistency and

credibility as the prosecution evidence. In the present case, the statement of

D.W.1 does not receive corroboration from any independent circumstance.

His assertion regarding the presence of the accused at the fair is directly

contrary to the consistent testimony of P.W.3 and P.W.4 regarding the

presence of the accused at the place of recovery. Nothing material has been

elicited from these witnesses in cross-examination so as to establish that the

accused was elsewhere at the relevant time.

39. It is further significant that the plea of alibi is not merely a plea

casting a general doubt upon the prosecution case, it is a specific plea that

the accused was at a different place at the time of the occurrence. Once such

CRA-S-13-SB-2008 20

a plea is raised, the defence is required to establish it by reliable evidence.

The accused has failed to do so. The testimony of D.W.1, standing alone,

does not inspire sufficient confidence to hold that the accused was present at

the fair and could not have been present at his cattle shed when the recovery

was effected.

40. Thus, neither the alleged absence of documentary proof of

ownership of the cattle shed nor the testimony of D.W.1 regarding the

alleged presence of the accused at the fair creates a reasonable doubt in the

prosecution case. The prosecution evidence establishes the connection of the

accused with the place from which the contraband was recovered, whereas

the plea of alibi set up by the defence remains unsubstantiated. Both the

contentions raised by learned counsel for the amicus curiae are, accordingly,

rejected.

41. No other argument was raised by learned Amicus Curiae for the

appellant.

42. Consequently, finding no merit in the present appeal, the same

is hereby dismissed. The judgment of conviction and order of sentence dated

18.12.2007, passed by the learned Special Judge, Bathinda, are upheld. The

appellant shall undergo the remaining sentence, if any, in accordance with

law.

43. Accused-appellant, namely, Major Singh @ Jhanfa are on bail.

A copy of the judgment be sent to concerned Chief Judicial Magistrate, to

initiate process of re-arrest of the aforesaid appellant, so as to serve the

remaining part of the sentence.

CRA-S-13-SB-2008 21

44. Before parting with the case, this Court places on record its

appreciation for the assistance rendered by Dr. Ram Kumar Singla,

Advocate, learned Amicus Curiae, in the matter. His assistance has been

valuable and is duly acknowledged. The fee of the learned Amicus Curiae

shall be paid as per the applicable rules.

45. All pending applications, if any, also stand disposed of.

(MANDEEP PANNU)

14.09.2026 JUDGE

Anu

Whether speaking/reasoned: Yes/No

Whether reportable : Yes/No