AJMER SINGH v.

STATE OF HARYANA (Criminal Appeal No. 436 of 2009)

FEBRUARY 15, 2009 [P. Sathasivam and H.L. Dattu, JJ.]

2010 (2) SCR 785

The Judgment of the Court was delivered by

H.L. DATTU, J.   1.  This appeal,  is directed against the judgment and  order of the High Court of Punjab and Haryana in Criminal Appeal No.926-SB  

of  1997 dated 7.12.2007,  whereby and where  under,  the  High Court  has  

upheld  the  conviction  of  the  appellant  by  the  Additional  Sessions  Judge,  

Kurukhestra, vide judgment and order dated 5.11.1997/6.11.1997 in Sessions  

Case  No.14  of  1996,  for  offences  punishable  under  Section  20  of  the  

Narcotics Drugs & Psychotropic Substances Act, 1985.

2. The factual matrix of the case is as under : That on 24.1.1996, ASI  

Maya Ram accompanied by other police officials, namely, Head Constable  

Raja Ram and Constables Gian Chand and Shyam Singh was on patrol duty.  

The  said  police  party  was  present  near  the  Markanda  Bridge  when  the  

accused along with another person Randhir Singh were seen coming from  

the side of Ismailabad. On seeing the police party, the appellant and other  

person Randhir Singh made an attempt to turn back and escape. However,  

the  police  over-powered  them  as  their  activities  were  found  suspicious.  

Thereafter, they were served with a notice under Section 50 of the Narcotic  

Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the  

Act’) vide memo (Ex.PD) giving an option to them to be searched either by  

the Gazetted officer or the Magistrate. They signed the memo by making the  

choice to be searched by the Gazetted officer and they were arrested by the  

Head  Constable  Raja  Ram  and  C-1  Gian  Chand.  Both  of  them  were  

produced before the then D.S.P., Pehowa, Shri Paramjit Singh Ahalawat who

is a Gazetted Officer, and on his direction, the bag that they were carrying  

was searched before him. The bag that was carried by the appellant on his  

shoulder was found to be containing 500 grams of charas wrapped in wax  

paper. Out of that, 50 grams of charas was taken as sample. Thereafter, the  

sample and residue were sealed separately with seal ‘MR’ of the Investigating  

Officer and ‘PSA’ of the D.S.P. Seal MR was handed over to HC Raja Ram  

while seal ‘PSA’ was retained by the D.S.P. himself. FIR was registered being  

Case  F.I.R.  No.  14  dated  24.1.1996  and  the  property  was  taken  into  

possession by drawing a mahazar. The rough site plan was also prepared  

and the  accused was arrested  after  informing  the  grounds  of  arrest.  The  

statements of witnesses were recorded and challan was issued on receipt of  

the report of the Chemical Examiner Exhibit PH. The accused was charge-

sheeted under Section 20 of the Act and he pleaded not guilty and claimed  

trial. The other person who was also apprehended on the same day, was also  

charge- sheeted and tried separately.

Case of Prosecution before the Trial Court:

3. The prosecution examined Constable Balkar Singh PW-1, MHC Som  

Nath PW-2, DSP Paramjit Singh Ahalawat PW-3, Head Constable Raja Ram  

PW-4, ASI Maya Ram PW-5 and SI Dilpanjir Singh PW-6. The prosecution  

also  got  marked  the  Chemical  Examination  Report  and  closed  the  

prosecution  evidence.  The  accused  was  called  upon  to  lead  evidence  in  

defence,  if  any.  The statement  of  the  accused  under  Section  313  of  the  

Criminal  Procedure  Code  was  recorded  by  putting  incriminating  evidence  

against  him.  Being  confronted  with  incriminating  circumstance  appearing  

against him, the accused pleaded innocence and false implication.  

4. The case of the appellant before the Sessions Court :  

(a) that there was no strict compliance of the Section 50 of the Act.

(b) independent witnesses not joined and associated during the search.  

(c) that the accused was falsely implicated in the case.

Decision of Sessions Court:

5.  The Additional  Session  Judge has  observed  that  the  accused was  

given an option, whether he should be searched by a Gazetted officer or a  

Magistrate and after obtaining his option,  he was produced before Deputy  

Superintendent of Police, who is a Gazetted Officer and on his direction the  

accused was searched and, therefore, there is compliance of Section 50 of  

the Act. Secondly, the prosecution has shown that there were enough efforts  

taken by the Investigation Officer to implead independent  witness.  Thirdly,  

there has been no missing link in the evidence and thus the prosecution has  

been  able  to  prove  the  case  beyond  reasonable  doubt  that  the  accused  

“retained in his conscious possession 500 grams of charas without any permit  

or license on 24.1.1996”. Thus, the accused was held guilty under Section 20  

of the Act and was convicted vide judgment dated 5.11.1996. The accused  

was sentenced to undergo rigorous imprisonment for a period of ten years  

and a fine of Rs.1,00,000/-(Rupees one lac). In default of payment of fine, to  

further undergo rigorous imprisonment for another one year.

Appeal before the High Court:

6.  Feeling  aggrieved  by  the  decision  of  Additional  Session  Judge,  

Kurukshetra,  the  accused  preferred  Criminal  Appeal  No.926-SB  of  1997  

before the High Court of Punjab and Haryana.  

7. Apart  from reiterating the contentions canvassed before the learned  

Sessions  Judge,  the  learned  counsel  for  the  accused-appellant  had  also  

contended  that  there  was  delay  of  15  days  in  sending  the  sample  for  

chemical examination to FSL, Madhuban (Karnal) and no explanation is given  

by the prosecution for the delay caused. The High Court while considering  

this  issue  has  concluded  that  the  delay  is  properly  explained  by  the  

prosecution. It has further observed that, the statement of the witnesses and  

the report  of  the FSL,  Madhuban shows that  the sample was received in

sealed cover and there was no tampering of the sample, and therefore, the  

said FSL, Madhuban Report must be held to have full evidentiary value.  

Appeal:

8. Before us the learned counsel  for  the appellant  contended that  the  prosecution  has  failed  to  establish  the  guilt  of  the  accused  ;  that  the  

conviction and sentence of the appellant is illegal in view of failure to observe  

the  safeguards,  while  conducting  search  and  seizure,  as  provided  under  

Section 50 of the Act ; that the prosecution has not joined any independent  

witnesses to prove the fact of recovery of ‘Charas’ from the possession of the  

accused  ;  that  the  principle  of  parity  requires  the  awarding  of  lesser  

punishment as has been done in the case of co-accused Randhir Singh.  

9.  In order to appreciate the contention raised by the learned counsel  

appearing for  appellant,  it  is  necessary to notice Section 50 of  the Act.  It  

reads:  

“Conditions under which search of persons shall be conducted. (1) When  

any  officer  duly  authorised  under  Section  42  is  about  to  search  any  

person under the provisions of Section 41, Section 42 or Section 43, he  

shall, if such person so requires, take such person without unnecessary  

delay to nearest Gazetted Officer of any of the departments mentioned in  

Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he  

can bring him before the Gazetted Officer or the Magistrate referred to in  

sub-Section (1).\

(3) The Gazetted Officer or the Magistrate before whom any such person  

is brought shall,  if  he sees no reasonable ground for search,  forthwith  

discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.”

10. Section 43 of the Act empowers an officer referred to in Section 42 to  

conduct search and seizure and arrest in public places. The provision reads  

as under:

“Power of seizure and arrest in public places. Any officer of any of the  

departments mentioned in Section 42 may—

(a)  seize,  in  any  public  place  or  in  transit,  any  narcotic  drug  or  

psychotropic substance in respect of which he has reason to believe an  

offence punishable under  Chapter  IV has been committed,  and,  along  

with such drug or substance, any animal or conveyance or article liable to  

confiscation under this Act, and any document or other article which he  

has reason  to  believe  may furnish  evidence  of  the  commission  of  an  

offence punishable under Chapter IV relating to such drug or substance;

(b) detain and search any person whom he has reason to believe to have  

committed an offence punishable under Chapter IV, and, if such person  

has any narcotic drug or psychotropic substance in his possession and  

such possession appears to him to be unlawful, arrest him and any other  

person in his company.

Explanation.—For  the purposes of  this  Section,  the expression “public  

place”  includes  any  public  conveyance,  hotel,  shop,  or  other  place  

intended for use by, or accessible to the public.”

11. Section 42 of the Act reads as under :

“Power  of  entry,  search,  seizure  and  arrest  without  warrant  or  

authorisation.

(1) Any such officer (being an officer superior in rank to a peon, sepoy or  

constable)  of  the  departments  of  central  excise,  narcotics,  customs,  

revenue intelligence or any other department of the Central Government  

or of the Border Security Force as is embowered in this behalf by general  

or special order by the Central Government, or any such officer (being an  

officer superior in rank to a peon, sepoy or constable) of the revenue,

drugs  control,  excise,  police  or  any  other  department  of  a  State  

Government as is empowered in this behalf by general or special order of  

the  State  Government,  if  he  has  reason  to  believe  from  personal  

knowledge or information given by any person and taken down in writing,  

that any narcotic drug, or psychotropic substance, in respect of which an  

offence  punishable  under  Chapter  IV  has  been  committed  or  any  

document or other article which may furnish evidence of the commission  

of  such  offence  is  kept  or  concealed  in  any  building,  conveyance  or  

enclosed place, may, between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle  

to such entry;

(c)  seize  such  drug  or  substance  and  all  materials  used  in  the  

manufacture thereof and any other article and any animal or conveyance  

which he has reason to believe to be liable to confiscation under this Act  

and any document or other article which he has reason to believe may  

furnish  evidence  of  the  commission  of  any  offence  punishable  under  

Chapter IV relating to such drug or substance:

Provided that if such officer has reason to believe that a search warrant or  

authorisation  cannot  be  obtained  without  affording  opportunity  for  the  

concealment of evidence or facility for the escape of an offender, he may  

enter  and search such building,  conveyance or  enclosed place at  any  

time between sunset and sunrise after recording the grounds of his belief.

(2)  Where an officer  takes down any information in writing under sub-

Section (1) or records grounds for his belief under the proviso thereto, he  

shall forthwith send a copy thereof to his immediate official superior.”

12.  The object,  purpose and scope of  Section 50 of  the  Act  was  the  

subject  matter  of  discussion  in  number  of  decisions  of  this  Court.  The  

Constitution Bench of five Judges of this Court in the case of State of Punjab

v. Baldev Singh,  [(1999) 6 SCC 172], after exhaustive consideration of the  

decision of this court in the case of  Ali Mustaffa Abdul Rahman Moosa vs.   

State of Kerala, [(1994) 6 SCC 569] and Pooran Mal vs. Director of Inspection  

(Investigation),  New Delhi  & Ors.,  [(1974) 1 SCC 345],  have concluded in  

para 57 :

(I) When search and seizure is to be conducted under the provision of  

the Act, it is imperative for him to inform the person concerned of  

his right of being taken to the nearest gazetted officer or the nearest  

Magistrate for making search.

(II) Failure to inform the accused of such right would cause prejudice to  

an accused.

(III) That a search made by an empowered officer, on prior information,  

without informing the accused of such a right may not vitiate trial,  

but would render the recovery of the illicit article suspect and vitiate  

the conviction and sentence of an accused, where the conviction is  

solely based on the possession of the illicit article, recovered from  

his person, during such search.

(IV) The investigation agency must follow the procedure as envisaged  

by the statute scrupulously and failure to do so would lead to unfair  

trial contrary to the concept of justice.

(V) That the question as to whether the safeguards provided in Section  

50  of  the  Act  have  been  duly  observed  would  have  to  be  

determined by the court on the basis of the evidence at the trial and  

without  giving  an  opportunity  to  the  prosecution  to  establish  the  

compliance of Section 50 of the Act would not be permissible as it  

would cut short a criminal trial.

(VI) That  the  non  compliance  of  the  procedure  i.e.  informing  the  

accused of the right under sub-Section (1) of Section 50 may render

the recovery of contraband suspect and conviction and sentence of  

an accused bad and unsustainable in law.

(VII) The illicit article seized from the person of an accused during search  

conducted  without  complying  the  procedure  under  Section  50,  

cannot  be  relied  upon  as  evidence  for  proving  the  unlawful  

possession of the contraband.

13. The learned counsel for the appellant contended that the provision of  

Section 50 of the Act would also apply, while searching the bag, brief case  

etc.,  carried  by  the  person  and  its  non-compliance  would  be  fatal  to  the  

proceedings initiated under the Act. We find no merit in the contention of the  

learned counsel. It requires to be noticed that the question of compliance or  

non-compliance  of  Section  50 of  the  N.D.P.S.  Act  is  relevant  only  where  

search of  a person is involved and the said Section is not  applicable nor  

attracted where no search of a person is involved. Search and recovery from  

a bag, brief case, container, etc., does not come within the ambit of Section  

50 of the N.D.P.S. Act, because firstly, Section 50 expressly speaks of search  

of person only. Secondly, the Section speaks of taking of the person to be  

searched by the Gazetted Officer or Magistrate for the purpose of search.  

Thirdly, this issue in our considered opinion is no more res-integra in view of  

the observations made by this court in the case of  Madan Lal vs. State of   

Himachal Pradesh 2003 Crl.L.J. 3868. The Court has observed:  

“A  bare  reading  of  Section  50  shows  that  it  only  applies  in  case  of  

personal search of a person. It does not extend to search of a vehicle or a  

container  or  a  bag  or  premises  (See  Kalema  Tumba  vs.  State  of  

Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab vs. Baldev  

Singh (JT 1994 (4) SC 595), Gurbax Singh vs. State of Haryana (2001 (3)  

SCC 28). The language of section is implicitly clear that the search has to  

be in relation to a person as contrast to search of premises, vehicles, or  

articles. This position was settled beyond doubt by the Constitution Bench

in Baldev Singh’s case (supra). Above being the position, the contention  

regarding non-compliance of Section 50 of the Act is also without any  

substance.”

14. In State of Himachal Pradesh vs. Pawan Kumar, [2005 4 SCC 350],  

this Court has stated:

“A bag, briefcase or any such article or container, etc. can, under no  

circumstances, be treated as body of a human being. They are given a  

separate name and are identifiable as such. They cannot even remotely  

be treated to be part of the body or a human being. Depending upon the  

physical capacity of a person, he may carry any number of items like a  

bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall,  

a  carton  etc.  of  varying  size,  dimension  or  weight.  However,  while  

carrying or moving along with them, some extra effort or energy would be  

required. They would have to be carried either by the hand or hung on the  

shoulder or back or placed on the head. In common parlance it would be  

said that a person is carrying a particular article, specifying the manner in  

which it was carried like hand, shoulder, back or head, etc. Therefore, it is  

not possible to include these articles within the ambit of the word “person”  

occurring in Section 50 of the Act.”  

After discussion on the interpretation of the word ‘person’, this Court  

concluded:

“that the provisions of section 50 will come into play only in the case  

of personal search of the accused and not of some baggage like a bag,  

article or container, etc. which (the accused) may be carrying”

The court further observed :

“In  view of  the  discussion  made,  Section  50  of  the  Act  can  have  no  

application on the facts and circumstances of the present case as opium  

was allegedly recovered from the bag, which was being carried by the  

accused.”

15.  It  appears  from  the  evidence  on  record  that  the  accused  was  

confronted by ASI Maya Ram and other police officials on 24.1.1996 and he  

was informed that he has the right to either be searched before the Gazetted  

Officer or before a Magistrate and the accused chose the later. Thereafter,  

the accused was taken to the DSP, Pehowa, Shri Paramjit Singh Ahalawat  

and as directed by him, the bag carried by accused on his shoulder was  

searched  and  the  charas  was  found  in  that  bag.  Thus,  applying  the  

interpretation of the word “search of person” as laid down by this court in the  

decision  mentioned  above,  to  facts  of  present  case,  it  is  clear  that  the  

compliance of Section 50 of the Act is not required. Therefore, the search  

conducted by the investigation officer and the evidence collected thereby, is  

not illegal. Consequently, we do not find any merit in the contention of the  

learned counsel of the appellant as regards the non-compliance of Section 50  

of the Act.

16.  The  learned  Counsel  for  the  appellant  has  submitted  that  the  

evidence of the official witness cannot be relied upon as their testimony, has  

not been corroborated by any independent witness. We are unable to agree  

with the said submission of the learned Counsel. It is clear from the testimony  

of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa,  

PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record,  

that  efforts  were  made  by  the  investigating  party  to  include  independent  

witness at the time of recovery, but none was willing. It is true that a charge  

under the Act is serious and carries onerous consequences. The minimum  

sentence prescribed under the Act is imprisonment of 10 years and fine. In  

this  situation,  it  is  normally  expected  that  there  should  be  independent  

evidence  to  support  the  case  of  the  prosecution.  However,  it  is  not  an  

inviolable rule. Therefore, in the peculiar circumstances of this case, we are  

satisfied that it would be travesty of justice, if the appellant is acquitted merely  

because no independent witness has been produced. We cannot forget that it  

may not be possible to find independent witness at all places, at all times.

The obligation to take public witnesses is not absolute. If after making efforts  

which the court considered in the circumstances of the case reasonable, the  

police officer is not able to get public witnesses to associate with the raid or  

arrest  of  the  culprit,  the  arrest  and  the  recovery  made  would  not  be  

necessarily vitiated. The court will have to appreciate the relevant evidence  

and will  have to determine whether the evidence of the police officer was  

believable after taking due care and caution in evaluating their evidence. In  

the  present  case,  both  the  trial  court  and  the  High  Court  by  applying  

recognized principle of evaluation of evidence of witnesses has rightly come  

to the conclusion that the appellant was arrested and Charas was recovered  

from the possession of the appellant for which he had no licence. We find no  

good reason to differ from that finding.

17.  The  learned  counsel  for  the  appellant  further  contends  that  the  

sentence of ten years rigorous imprisonment deserves to be modified and the  

accused deserves to be acquitted on the ground of parity as the sentence of  

other accused Randhir Singh, who was searched on 24.1.1996 and convicted  

by the additional Session Judge for being in possession of one Kilogram of  

charas,  without  any  permit  or  license,  has  been  reduced  to  that  already  

suffered by him.  

18. The principle of parity in criminal case is that, where the case of the  

accused is similar in all respects as that of the co-accused then the benefit  

extended to one accused should be extended to the co-accused. With regard  

to this principle, it is important to mention the observation of this court in the  

case of  Harbans Singh v. State of Uttar Pradesh and Ors.,  [(1982) 2 SCC  

101]. In that case it was held, that, in view of commutation of death sentence  

of one of the accused, who was similarly placed as that of appellant, award of  

death sentence to appellant was unjustified and, hence, the death sentence  

of the appellant was stayed till the decision of the President on commutation  

of sentence. An important observation of this Court on the point need to be  

noticed at this stage:

“it  will  be a sheer  travesty of  justice and the course of  justice will  be  

perverted, if for the very same offence, the petitioner has to swing and  

pay the extreme penalty of death whereas the death sentence imposed  

on his co-accused for the very same offence is commuted to one of life  

imprisonment and the life of the co-accused is shared.”

19. In the case of Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra,  

[(2003) 2 SCC 708], this Court maintained that as the second accused was  

placed on the same situation as the appellant, Article 21 of the Constitution  

would not permit this court to deny the same benefit to the second accused.

20. The Court of Appeal Albert,  Canada in R. v. Christie [2004 Carswell  

Alta  1224  Alberta  Court  of  Appeal,  2004]  discussed  the  meaning  of  the  

principle in connection with sentencing in criminal cases. The Court of Appeal  

stated:

“40. Parity is a principle which must be taken into account in any  

sentence, and particularly where the offence was a joint venture. There  

will, of course, be cases where the circumstances of the co-accused are  

sufficiently different to warrant significantly different sentences, such as  

where one co-accused has a lengthy related criminal record or played a  

much greater role in the commission of the offence.”  

Thus, expressing its view on ‘parity in sentencing’ the Court observed:

“43.    What  we must  strive  for  is  an approach to  sentencing whereby  

sentences for similar offences committed by similar offenders in similar  

circumstances are understandable when viewed together, particularly in  

cases involving joint ventures.”

Also the observation of the Court of Appeal Alberta in the case of Wahby  

v The Queen, [(2004) WASCA 308 2004 WL 3061688] whereby, the Court  

quoted the explanation given in the case of Goddard v The Queen, [(1999) 21  

WAR 541], is relevant for the discussion in present case:

“In considering the application of the principle, all the circumstances of  

the  case  are  to  be  taken  into  account;  those  concerned  with  the  

commission of the offence and those which are personal to the offender  

before the court  and the co-offender.  Where there are differences,  as  

almost inevitably there will  be, true parity will  be produced by different  

sentences, each proportionate to the criminal culpability of each offender,  

bearing in mind, as is often said but is worth repeating, that sentencing is  

not  and should  not  be a process involving a  search  for  mathematical  

precision, but is an act of discretion informed by the proper application of  

sentencing  principles  to  the  particular  case.  Inevitably  there  will  be  a  

range of appropriately proportionate sentences which may be passed for  

the offence before the court.”

21. The Court of Appeal of the Supreme Court of Victoria, Australia in the  

case of R v Hildebrandt [187 A Crim R 42 2008 WL 3856330; [2008] VSCA  

142] observed:

“Judicial expositions of the meaning of the parity principle are not entirely  

uniform. The term “the parity principle” is used in at least two senses in  

the relevant authorities. First, to express the recognition that like cases  

should be treated alike (itself an emanation of equal justice). Secondly,  

the  phrase  is  used  to  describe  the  requirement  to  consider  the  

“appropriate  comparability”  of  co-offenders,  and  in  that  sense,  

comprehends the mirror propositions that like should be treated alike, and  

that  disparate  culpability  or  circumstances  may  mandate  a  different  

disposition.”

22. In the case Postiglione v The Queen [(1997) 189 CLR 295; 94 A Crim  

R 397] Dawson and Gaudron JJ stated:

“The parity principle upon which the argument in this Court was mainly  

based is an aspect of equal justice. Equal justice requires that like should  

be treated alike but that, if there are relevant differences, due allowance

should be made for them In the case of co-offenders, different sentences  

may reflect different degrees of culpability or their different circumstances.  

If so, the notion of equal justice is not violated ...Discrepancy or disparity  

is not simply a question of the imposition of different sentences for the  

same offence. Rather, it is a question of due proportion between those  

sentences,  that  being a matter  to  be determined having regard to  the  

different circumstances of the co-offenders in question and their different  

degrees of criminality.”

The Court, therefore, concluded the principle to mean:

“……it the concept simply is that, when two or more co-offenders are to  

be  sentenced,  any  significant  disparity  in  their  sentences  should  be  

capable of a rational explanation.”

23. What can be inferred from the above decision is, that for applying the  

principle of parity both the accused must be involved in same crime and must  

be convicted in single trial, and consequently, a co-accused is one who is  

awarded punishment along with the other accused in the same proceedings.  

However, we are unable to apply the principle of parity to the present case as  

the  record  show  that  the  accused  Randhir  Singh  was  convicted  vide  a  

separate trial arising out of a separately registered F.I.R. Merely because the  

accused Randhir Singh happened to be searched on 24.1.1996 before the  

same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit Singh Ahalawat, he  

cannot be said to be a co-accused in the present case. Further, the sentence  

of accused Randhir Singh was altered by the Punjab and Haryana High Court  

vide a separate judgment dated 3.12.2002 arising out of a separate appeal  

being Criminal Appeal No.855-57 of 1999. Therefore, we do not find any merit  

in the contention canvassed by learned counsel for the appellant.  

24. In view of the aforesaid findings, we do not find any infirmity in the  

impugned order of the High Court. Accordingly, the present appeal fails and is  

dismissed.