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Supreme Court of India
Surinder Kumar vs The State Of Punjab on 6 January, 2020Author: Mohan M. Shantanagoudar
Bench: Mohan M. Shantanagoudar, R. Subhash Reddy
Crl.Appeal No.512 of 2009 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 512 OF 2009
Surinder Kumar ..…Appellant
versus
State of Punjab …Respondent
J U D G M E N T
R.Subhash Reddy,J.
1. This Criminal Appeal is filed by the sole
accused, aggrieved by 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
Signature Not Verified
Digitally signed by
and Psychotropic Substances Act, 1985 (for short
ASHWANI KUMAR
Date: 2020.01.06
15:58:58 IST
‘NDPS Act, 1985’), vide the judgment dated
Reason:
20.05.1999, passed by the Special Judge, Ferozepur,
Crl.Appeal No.512 of 2009 2
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.
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
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 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
Crl.Appeal No.512 of 2009 3
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 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 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
pleaded false implication, however, he did not lead
any evidence in his defence. After appreciating the
oral and documentary evidence on record, the learned
Crl.Appeal No.512 of 2009 4
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 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 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.
6. We have heard Sri Mahabir Singh, learned senior
counsel appearing for the appellant assisted by
Mr. D.Mahesh Babu, advocate-on-record and
Crl.Appeal No.512 of 2009 5
Ms. Ranjeeta Rohatgi, learned counsel appearing for
the respondent-State.
7. In this appeal, it is mainly contended by learned
senior counsel 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 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.
8. Learned senior counsel appearing for the
appellant, to buttress his submissions, placed
reliance on the following judgments:
Crl.Appeal No.512 of 2009 6
(i) Trimukh Maroti Kirkan v. State of
Maharashtra1.
(ii) Noor Aga v. State of Punjab & Anr2.
(iii) Mohan Lal v. State of Punjab3.
9. On the other hand, learned counsel for the
respondent-state has submitted that the prosecution
has proved the case by leading cogent evidence, which
proved guilt of the appellant beyond reasonable doubt
and there are no grounds to interfere with the same.
Learned counsel 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 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
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
Crl.Appeal No.512 of 2009 7
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 Singh, ASI to whom Yogi Raj, SHO
(PW-3) handed over the case property 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 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 to the effect that since
there was no judicial malkhana at Abohar, the case
Crl.Appeal No.512 of 2009 8
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.
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 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 search and
recovery was effected, was not examined.
Crl.Appeal No.512 of 2009 9
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 from Dalbir Khera-2
towards Waryam Khera in a private jeep, when they
reached near the bridge of Canal Minor, the
appellant-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 that the ASP,
Abhor who was called at the spot and in his presence
his bag was searched which resulted into recovery of
1 kg 750 grams of 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
Crl.Appeal No.512 of 2009 10
High Court has issued directions 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, 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.
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
Crl.Appeal No.512 of 2009 11
join independent witnesses, but none were available.
The 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.
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 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:
“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 that the police records are
untrustworthy. AS a presumption of law,
the presumption would be the other way
6 (2001)1 SCC 652
Crl.Appeal No.512 of 2009 12
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 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.
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 called for. Accordingly, this appeal
is devoid of merits, and the same is dismissed.
Crl.Appeal No.512 of 2009 13
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, shall take necessary steps to take the
appellant into custody to serve remaining period of
sentence.
……………….J.
[N.V. Ramana]
……………….J.
[R. Subhash Reddy]
……………….J.
[B.R. Gavai]
New Delhi,
January 06, 2020.
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