Surinder Kumar vs The State Of Punjab on 6 January, 2020


Supreme Court of India

Surinder Kumar vs The State Of Punjab on 6 January, 2020

Author: 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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