REPORTABLE

              IN THE SUPREME COURT OF  INDIA

         CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NO. 463  OF 2005

STATE OF PUNJAB ..  APPELLANT

vs.

LEELA ..  RESPONDENT

J U D G M E N T

Dr.  

ARIJIT  

PASAYAT,J.

Challenge in this appeal is to the judgment of a Division bench of  

Punjab and Haryana High Court directing acquittal of the respondent who was  

convicted by learned Special Judge Sh. Inderjit Kaushik, Patiala, for offence  

punishable  under  Sec.15  of  the Narcotic  Drugs and Psychotic Substances  

Act, 1985 (in short `NDPS Act').  Allegation against the accused was that he  

was found to be in possession of poppy husk weighing a large quantity in  

seven bags.  

The prosecution version in a nut shell is as follows:

On February 20, 1999 Sub-Inspector Ajmer Singh (PW.5), along with  

other police officials, was on patrol duty in police vehicle PB-11A-7849 driven  

by Sarmukh Singh.   The patrol party was present at the bridge on a drain  

about  20-  kms.  South  of  Police  Station,  Sadar,  Patiala.  At  7  a.m.  secret  

information was received by Sub-Inspector Ajmer Singh that  

-2-

Leela and his co-accused Pritam Singh @ Billu (proclaimed offender) were  

habitually selling poppy husk and in case a raid was conducted they could

both the  apprehended  red  handed  from near  the  bridge over  the  drain  in  

Bhanri.

The  Investigator  proceeded  to  the  spot  and  also  informed  D.S.P.  

Kulshinder Singh (PW.1) on the wireless.  When  the police officials reached  

the bridge on the drain, they saw two persons sitting on bags, who on seeing  

them tried to run away.  The police officials stopped their vehicle, got down  

and over-powered Leela as well as Pritam Singh @ Billu.  At that time Joga  

Singh had also reached at the spot.  The Investigator told the accused that he  

wished  to  search  the  bags  and  that  search  could  be  conducted  in  the  

presence of a Gazetted Officer or a Magistrate.  The accused opted for search  

before a Gazetted Officer. The Investigator recorded their consent statements  

and the accused put their signatures on the statements.  In the meanwhile,  

D.S.P. Kulshinder Singh (PW.1) also reached the spot in a police Gypsy.  In  

the presence of the witnesses  and the D.S.P.,  the Investigator checked the  

seven bags which were lying on the ground and from each bag poppy husk  

was recovered.  The bags were numbered 1 to 7.  Two samples of 250 grams  

each  of  the  contraband  article  were  taken  out  from  the  bags  and  put  in  

separate  parcels.  The  remaining  poppy husk  was  weighed  and  each  was  

found to have  contained 34.5 kgs. of poppy husk.  Fourteen sample parcels  

and the seven bags of poppy husk were sealed.  The seal after

-3-

use  was  handed  over  to  Assistant  Sub-Inspector  Mohinder  Singh  (PW.4).  

Since Leela and Pritam Singh @ Billu had committed an offence punishable  

under Section 15 of the NDPS Act report was sent to Police Station, Sadar,  

Patiala at 9.30 a.m.  and on its basis formal F.I.R. was registered at the  Police  

Station at 10.40 a.m. on February 20, 1999. Report of the case was received by  

Additional Chief Judicial Magistrate at 5.35 p.m. on the same day.

In the meanwhile,  the Investigator  arrested  the accused and took

into possession the case property.  On the personal search of the accused  

some cash was recovered, Rs.65/- from Leela and Rs.95/- from Pritam Singh  

@ Billu.  Cash was also taken into possession. The accused were informed of  

the  grounds  of  their  arrest  vide  memo signed  by Assistant  Sub-Inspector  

Mohinder  Singh  (PW.4)  and  Joga  Singh.   Site  plan  of  the  place  of  the  

occurrence was prepared.

On return to the police station, case property and the accused were  

produced before  S.H.O.  Gurchain  Singh (PW.6)  who  verified the  facts  and  

directed the Investigator to deposit the case property with the M.H.C.

On the following day the accused as well as the case property were  

produced  before  the  Area  Magistrate.   The  sample  of  the  recovered  

contraband was examined by the Chemical Examiner who reported that the  

sample was of poppy husk. After completion of the investigation the accused  

were sent up for trial. At some stage Pritam Singh was released on bail and  

he

-4-

jumped bail. The record is unclear regarding the date of his release and the  

order on the basis of which he was released.  Be that as it may, efforts were  

made to procure Pritam Singh's presence by the Court but without success.  

Consequently, Pritam Singh @ Billu was declared a proclaimed offender by  

the learned Special Judge on September 1, 2001.

Charges were framed against Leela on September 6, 2001 to which  

he pleaded not guilty and claimed to be tried.

Prosecution examined the DSP -Kulshinder Singh (PW.1),  C. Faquir  

Chand (PW-2),  MHC Sahib Singh (PW.3), ASI-Mohinder Singh (PW.4) and SI-

Ajmer Singh (PW.5) and Gurchain Singh (PW.6), SHO, Patiala police station.  

The accused denied various items of prosecution evidence which appeared  

against them and pleaded false implication.

The accused examined  A.S.I.  Devinder Singh (DW.1),  Joga Singh

(DW.2).  The trial Court came to the conclusion that the accused was believed  

to be in possession of seven bags of contraband therefore he was convicted  

and  sentenced to undergo 11 years R.I. and to pay a fine of Rs.1,00,000.  In  

appeal  two  stands  were  basically  taken.   First  was  that  there  was  no  

independent  witness  examined  and  secondly  there  was  violation  of  the  

provisions of Sec.50.  It was found that two bags were torn and so far as the  

other  five bags  are  concerned  the  seals  were  smudged.   The  High  Court  

accepted the stand of the accused and directed acquittal.

-5-

In support of the appeal, learned counsel submitted that the fact that  

no independent witness  was examined on account of that one Joga Singh  

who was called to be a witness of the recovery was non-available and was not  

examined.  There is no legal bar on conviction being recorded solely on the  

evidence of the witnesses.  Additionally, the seized articles in questions were  

put by the Deputy Superintendent of Police (PW 1) who was higher in rank to  

the officer   who   was    the   SHO   at   the   relevant  point of time.  In any  

event as noted in the High Court's judgment the SHO was one Gurchain Singh  

who is stated in the High Court judgment as DSP.  It is to be noted that there  

is  perverse  for  which  seals  of  two  officers  is  required  to  be  given under  

Sec.55.  The investigator has ensured that there is more than transparency in  

the action taken and there is no apprehension or any imperfect  procedure  

being adopted.   

Learned counsel  for  the respondent  on the other hand submitted  

that there has been clear violation of Sec.55 of the Act and no serious effort  

was made to involve any independent witness and on the other hand Joga  

Singh who was made a member of the party  did not support the prosecution  

version.

It is not in dispute that provision of Sec. 55 are directory in nature.  

In the instant case, the DSP who was examined as PW.1 is an officer and was  

higher in rank or of  

-6-

the same rank as the SHO in the instant case.  There is no reason indicated as  

to how the accused has been prejudiced by PW.1 putting his seal instead of

the SHO. The provisions are directory and as there is no doubt about the  

authenticity of the official  Act,  the High Court ought not to have held that  

there was non-compliance of requirement of Sec. 50. Coming to the plea as  

confined to the conclusion that officer witnessed were examined in the Court  

the  conviction  could  not  be  maintained.  Firstly  Sec.50  of  the  Act has  no  

application as there was o personal search. The issue has been examined in  

several  cases  and  it  has  been  held  that  clearly  shows  that  the  official  

witnesses have been examined.  It is not sufficient to be doubt the evidence  

of the official witnesses. The elementary question is whether the evidence of  

official  witness  suffers  from any infirmity.   In  the instant  case  there is  no  

finding in that regard.  Coming to the plea of the respondent accused that the  

seals were found smudged, it is to be noted that the trial Court has noticed  

this aspect and held that they were produced before the Court after one year  

and by the time of production there is likelihood the seal getting protection or  

get smudged.

 Above being the position, the acquittal of the respondent by the High  

Court is clearly unsustainable.  The judgment of the High Court is set aside  

and  that of the trial  court is restored.   The respondent shall  surrender to  

custody to serve out the remainder of sentence.

The appeal is disposed of.

                          ................ .J.               (Dr. ARIJIT PASAYAT)

     ...................J.                                         (ASOK KUMAR GANGULY) New Delhi, April 23, 2009.