SURENDER @ KALA Vs. STATE OF HARYANA

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 50 of 2016, Judgment Date: Jan 19, 2016

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 50 of 2016
(Arising from the SLP(Crl.) No. 2082 of 2015)

Surender @ Kala …. Appellant

Versus

State of Haryana …. Respondent

J U D G M E N T

Uday U. Lalit, J.

Leave granted.

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 Substances Act, 1985
(hereinafter referred to as the ‘Act’) for being in possession of 1 kg of
opium without any permit or licence.

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 Sonipat. Secret information was received 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 DDR
Ext. PC was recorded. PW6 Satbir and other police officials reached the
bus stand and saw the appellant coming 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/1
he opted to be searched before a Gazetted Officer.

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 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 1kg 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 were separately sealed and taken in possession vide memo
Ext. PB. The seal was then handed over to PW1 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.

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 Malkhana. In due course of time the FSL report Ext.
PD was received wherein it was 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.

The prosecution in support of its case examined six witnesses. PW1 ASI
Bishamber Lal stated as under:-

“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. PA/1 which is bearing my
signatures.”

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:-

“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 intact with the MHC P.S. Baroda.”

PW4 Shyam Singh Rana DSP stated as under:-

“I 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 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 parcels were taken into
possession vide recovery memo EX. PB which was signed by ASI Bishamber Lal
and HC Suresh Kumar and was attested by me also.”

7. In his statement under Section 313 Cr. P.C. 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 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 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.

9. It was submitted by Mr. Rakesh Dahiya, learned advocate appearing for
the appellant that the investigation in the matter 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,
Madhurai, Tamil Nadu v. Rajangam[1], the learned counsel submitted that the
investigation by PW6 SI Satbir 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 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 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:

“After considering the facts and circumstances of the case, it
appears to us that there is discrepancy in the depositions of the P.Ws.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 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 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.”

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
the instructions 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 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.

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.

………………………J.
(V. Gopala Gowda)

…………………..……J.
(Uday Umesh Lalit)
New Delhi,
January 19, 2016

ITEM NO.1D-For Judgment COURT NO.10 SECTION IIB

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Crl.A.No.50/2016 @ Petition(s) for Special Leave to Appeal (Crl.) No(s).
2082/2015

SURENDER @ KALA Petitioner(s)

VERSUS

STATE OF HARYANA Respondent(s)

Date : 19/01/2016 This appeal was called on for pronouncement of JUDGMENT
today.

For Petitioner(s)
Mr. Rakesh Dahiya,Adv.

For Respondent(s)
Mr. Sanjay Kumar Visen,Adv.

Hon'ble Mr. Justice Uday Umesh Lalit pronounced the judgment of the
Bench comprising Hon'ble Mr. Justice V. Gopala Gowda and His Lordship.
Leave granted.
The appeal is dismissed in terms of the signed reportable judgment.

(Signed Reportable Judgment is placed on the file)
-----------------------
[1] 1. 2010(15) SCC 369
[2] 1996(11) SCC 709

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