2009(7)SCR 306 STATE OF PUNJAB

V. SURJIT SINGH & ANR.

Criminal Appeal No. 646 of 2005 APRIL 22, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR  GANGULY, JJ.]

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. In this appeal challenge to the judgment of a learned Single Judge of the  

Punjab & Haryana High Court directing acquittal of the respondents who faced  

trial  for  alleged  commission  of  offence  punishable  under  Section  15  of  the  

Narcotic Drugs & Psychotropic Substances Act, 1985 (in short, ‘the Act’). Each of  

the respondents was sentenced to undergo 10 years’ rigorous imprisonment and  

to pay a fine of Rs.1,00,000/- with default stipulation.

2.  Learned  Judge,  Special  Court,  Sangrur  had  found  them  guilty.  

Prosecution version as unfolded during the trial was as follows.

3.  On  11.7.2000,  Assistant  Sub  Inspector  Vijay  Kumar  along  with  other  

police  officials  was on patrol  duty in the area of  village Nagra.  Karnail  Singh  

independent  witness  met  them  there  and  he  was  joined  in  the  police  party.  

Thereafter, they proceeded towards Village Akberpura. When they reached near  

the bridge of minor canal, then the respondents were seen sitting on the gunny  

bags. On seeing the police party,  they succeeded in running away.  However,  

they were identified by Kashmir Singh, Head Constable and Baljit Singh, Head  

Constable.  

4.  Assistant  Sub  Inspector  Vijay  Kumar  sent  wireless  message  to  Raj  

Bachan Sandhu, Deputy Superintendent of Police, Sangrur to reach at the spot  

and under his directions Assistant Sub Inspector Vijay Kumar conducted search  

of the bags. On search, the bags were found to contain poppy husk. The bags  

were four in number. Two samples of 250 grams each of poppy husk were taken

from each of  the bags.  The remainder  in  each bag was found to  be 29.500  

kilograms. The samples and the remaining poppy husk in the four bags were  

separately sealed with the seal of ‘VK’ and seal after use was handed over to  

Karnail Singh. They were taken into possession vide memo Ex.PA attested by  

the witnesses.

5.  Assistant  Sub  Inspector  Vijay  Kumar  sent  ruqa  Ex.PE,  to  the  police  

station for registration of the case, on the basis of which formal first information  

report  Ex.PA/1  was  recorded  by  Assistant  Sub  Inspector  Surjit  Singh.  He  

prepared  rough  site  plan,  Ex.PF,  with  correct  marginal  notes.  On  return,  he  

produced the case property and witnesses before the Station House Officer Amit  

Joshi, who after verifying the facts, put his own seal bearing impression “AJ”, and  

then on his clarifications, Assistant Sub Inspector Vijay Kumar deposited the case  

property with Mahar Head Constable Jaswinder Singh.  

6. Parma, respondent, was arrested on 17.4.2000 while respondent Surjit  

Singh was arrested on 27.7.2000.  After  receipt  of  the report  of  the Chemical  

Examiner, Ex.PH, the challan was put up in the court.

7. As accused persons pleaded innocence, trial was held.

8. In order to prove the allegations, prosecution examined seven witnesses.  

Trial Court found accused guilty and convicted them.

9. The High Court set aside the judgment of conviction, as recorded by the  

learned  trial  Judge,  solely  on  the  ground  that  only  official  witnesses  were  

examined and no independent witness was examined. Prosecution during trial  

made a statement before the Court that Karnail Singh was not being examined as  

he had been won over.  The High Court  held that  the evidence of  the official  

witnesses was not sufficient to record conviction. Even if the aforesaid Karnail  

Singh  had  been won over,  the  prosecution  should  have examined him.  With  

these conclusions, the appeal was allowed and the acquittal was directed.  

10.  Learned counsel  for  the appellant-State submits that the view of the  

High Court was clearly unsustainable. Conviction can be recorded even on the  

basis of the official witnesses.

11. There is no appearance on behalf of the respondents in spite of service  

of notice.

12. In the instant case, the reason as to why no independent witness was  

examined  was  clearly  stated  to  the  court.  It  was  specifically  stated  that  one  

Karnail Singh, who was a part of the recovery and seizure was won over and,  

therefore, there was no purpose in examining him.  

13. So far as the examination of only official witnesses is concerned, it is to  

be noted that the only witness who was a party to the recovery and the seizure  

was given up as he was won over. The High Court’s conclusion that he should  

have been examined even if that was so, is clearly not sustainable. No material  

was brought on record by the defence to discredit  the evidence of the official  

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

suffers from any infirmity. In the instant case,  nothing of that nature could be  

pointed  out.  As  noted  above,  official  witnesses  stated  the  reason  as  to  why  

Karnail Singh was not being examined. Therefore, the High Court was in error in  

holding that the prosecution version became vulnerable due to non-examination  

of any person who was not an official witness. The impugned judgment of the  

High  Court  is  clearly  unsustainable  and  is  set  aside.  The  respondents  shall  

surrender to custody forthwith to serve the remainder of the sentence.

14. The appeal is allowed.