REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 737 OF 2007

Hardip Singh            …. Appellant

versus

State of Punjab                                                                  …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The  present  appeal  is  directed  against  the  judgment  and  order  dated

18.10.2006  passed  by  the  High  Court  of  Punjab  &  Haryana  at

Chandigarh in Criminal Appeal No. 505-SB of 2000, whereby the High

Court  dismissed  the  appeal  filed  by  Hardip  Singh  and  upheld  the

conviction and the sentence passed against him under the provisions of

Section 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985

(hereinafter referred to as the ‘Act’).  

2. Briefly, the prosecution case is that on 20.8.1997 when Inspector Jarnail

Singh (examined as PW 5 in the trial), along with SI Sukhwinder Singh

and other police officials were standing on a drain bridge falling within

the jurisdiction of village Chamairi, a truck bearing registration No. DIG

4615 being driven by Sri Inder Masih was seen coming from Ajnala side,

when the truck was stopped.  Hardip Singh,  the present  appellant,  was

seen sitting by the side of the driver, in the said truck.  Meanwhile one

Major Singh, who was examined as one of the witnesses in the trial also

reached there on a bicycle and upon reaching the place he alighted from

the bicycle and joined the police party. Immediately thereafter Inspector

Jarnail  Singh  sent  a  wireless  message  to  SS  Mann,  Deputy

Superintendent of Police (PW 4), requesting him to reach the place of

occurrence, who after receiving the message immediately reached at the

place of occurrence.   

Thereafter  consent  memos (Ex.  PB & PC) were  prepared  to  show

compliance of Section 50 of the Act, which were signed/thumb marked by

the  appellant  and  attested  by  the  witnesses  including  PW  4.   On  the

instruction of PW 4, the DSP, Inspector Jarnail Singh conducted search of

the appellant Hardip Singh and upon such search one bag in the right hand

of Hardip Singh was found and on search of the said bag, it was found to

contain opium wrapped in a glazed paper.  The aforesaid opium, thereafter

was weighed and on such weighing it was found that there was total of 7

Kgs of opium out of which 250 gms of opium was taken as a sample in one

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parcel  and the remaining quantity of opium being 6.750 Kgs. was put  in

another parcel.  After preparing two separate parcels, the same were sealed

with the seals bearing inscriptions ‘SSM’ and ‘JS’ of SS Mann, DSP and

Inspector  Jarnail  Singh respectively.   The sealed parcels  were taken into

possession vide recovery memo, Ex. PD, attested by the witnesses.   

Thereafter  the  search  of  the  driver,  namely,  Inder  Masih  was also

conducted, in whose possession also 3 kgs. of opium was found, for which

two parcels were made out, one of 250 gms. and the other of 2.750 kgs. The

said  parcels  were  sealed  and  were  taken  into  possession  vide  recovery

memo, Ex. PE, attested by the same witnesses.  From the personal search of

Hardip  Singh  ten  currency  notes  of  the  denomination  of  Rs.  10/-  were

recovered.    These were also taken into possession by making out a memo,

Ex. PH.  Similarly, the truck bearing No. DIG 4615 was also taken into

possession vide memo, Ex. PJ.  Ruqqa, Ex. PK, was sent on the basis of

which First Information Report  (Ex. PK/1) was recorded.  A rough site-plan

was also prepared at the spot.  Thereafter, the present appellant along with

Inder Masih and the case property was produced before Inspector Baldev

Singh, the then Station House Officer (SHO), Police Station Ajnala, who

verified the investigation and kept  the said articles in his  possession.  On

30.9.1997 he sent the two parcels of sample for getting the same deposited

in  the  office  of  the  Chemical  Examiner,  Amritsar  through  ASI  Surinder

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Singh (PW-3).  As per the report of the Analyst, the contents of the sample

parcels were found to be of opium.  On completion of the investigation a

charge sheet was filed under the provisions of Section 18 of the Act.

3. The learned Sub Divisional Magistrate, Ajnala committed the case for

trial to the learned Court of Sessions Judge.  Under order dated 4.3.1998,

the learned Sessions  Judge,  Amritsar  framed charges  against  both  the

accused under the provisions  of  Section  18  of  the Act  to  which  they

pleaded not guilty and pleaded for trial.  

4.  The prosecution examined altogether four witnesses whereas appellant

Hardip  Singh  examined  five  defense  witnesses.   The  report  of  the

chemical  examiner  was  tendered  in  evidence.   The  appellant  and  the

other  accused were  also  examined  under  Section  313  of  the  Code  of

Criminal Procedure, 1973.   

5. On completion of the trial, the learned Addl. Sessions Judge heard the

arguments and thereafter passed the judgment and order convicting both

the accused persons including the present appellant under Section 18 of

the  Act  and  sentenced  them to  undergo  rigorous  imprisonment  for  a

period  of  ten  years  with  rupees  one  lakh  as  fine  and  in  default  of

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payment of fine to undergo rigorous imprisonment for a period of two

years, which is the minimum sentence provided under the Act.   

6. Being aggrieved by the aforesaid judgment and order of conviction and

sentence,  Hardip  Singh,  the  present  appellant  and  the  other  accused,

Inder  Masih  filed  an  appeal  before  the  High  Court  of  Punjab  and

Haryana, which was heard and disposed by Judgment and Order dated

18.10.2006.  The order  of  conviction and sentence passed against  the

present  appellant  was  maintained and confirmed whereas  the  order  of

conviction against Inder Masih was set aside and he was acquitted of the

charges.   Being aggrieved by the said  judgment and order the present

appeal  is  filed  by Hardip  Singh on which  we have heard the learned

counsel for the parties who have taken us through the entire evidence on

record.

7. Mr.  Mahabir  Singh,  the  learned  senior  counsel  appearing  for  the

appellant  strenuously  submitted  before  us  during  the  course  of  his

arguments that the High Court as also the trial court were not justified in

rejecting the defense case, as the case put up by defense was a probable

case and in that view of the matter benefit of doubt should have been

given to the present appellant.  It was also submitted by him that one of

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the accused persons having been acquitted by the High Court on almost

similar facts an order of acquittal should also have been passed in favour

of  the  present  appellant,   particularly,  when  there  was  no  sufficient

evidence on record for justifying conviction of the present appellant.  His

next submission was that the investigating officer did not comply with

the  mandatory  provisions  of  Section  55  of  the  Act  after  effecting

recovery from the accused.  He also strenuously urged that the sample

having been sent to the analyst for chemical examination after a time gap

of 40 days, the appellant should have been acquitted by holding that the

entire case of the prosecution is doubtful. The other submission of the

counsel was that PW 5 being an interested person bearing grudge against

the appellant and also being the complainant should not have been made

the investigating officer.   

8. We  may  now  proceed  to  examine  the  aforesaid  submissions  of  the

counsel appearing for the appellant in the light of the evidence on record

and also in the light of the submissions of the counsel appearing for the

respondent, who strenuously urged that the defense case which was put

up by the appellant was nothing but a got up story, and therefore, both

the courts below have rightly rejected the same.  

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9. The defense story which was put up by the appellant was that he had

been falsely implicated by Inspector Jarnail Singh (PW 5) on account of

a  grudge  that  he  nourished  against  the  appellant  due  to  a  vehicular

accident  which  occurred  on  26.7.1997,  which  was  ultimately

compromised by a written apology, Ex. DB.  The story was sought to be

corroborated and strengthened by certain complaints sent to higher ups,

Ex. DC and Ex. DD on 18.8.1997 and also a telegram Ex. DF sent on

19.8.1997 in that regard by Gurdial Singh, the father of the appellant.

The story was further sought to be substantiated by stating that the mere

fact that Jarnail Singh had allegedly recovered the said opium and also

the  fact  that  he  was  the  investigating  officer  of  the  case  prima-facie

proves  that  the  appellant  has  been  falsely  implicated  in  the  present

criminal case on account of personal grudge against the appellant.   

10.We  have  carefully  perused  the  record  in  view  of  the  aforesaid

allegations,  alleging  that  the  investigating  officer  was  nourishing  a

grudge against the appellant over the vehicular accident which occurred

on 26.7.1997.  A perusal of the document of apology, exhibited as Ex.

DB.,  shows that  it  carries  the  signatures  of  various  persons  including

Gurdial  Singh (DW 3) and Harjap Singh (DW 5) but  the signature of

Jarnail  Singh  (PW  5),  the  investigating  officer  of  the  case  was  not

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appearing in the  said document.   PW 5 was  also examined and cross

examined at length but not a single question was put to him about the

execution  of  the  aforesaid  document  of  apology.   No suggestion  was

given to him that the said document was executed in his presence and

that  he was  also a consenting  party to the  said document of  apology.

Therefore, the learned trial court as also the High Court were justified in

raising  doubt  about  the  genuineness  of  the  said  defense  case.   A

document can always be created falsely by obtaining signatures of few

persons but the said document when produced in evidence must be able

to  stand  the  test  of  genuineness.   In  our  considered  opinion  the  said

document is a doubtful document and the genuineness of the same could

not be proved by the appellant since he had failed to bring it to the notice

of  PW  5,  during  his  cross  examination,  the  fact  that  the  same  was

executed in his presence and with his consent.

11.So  far  as  the  complaints,  Ex.  DC  and  Ex.  DD,  allegedly  sent  are

concerned,  the same are produced by Gurdial  Singh,  the father  of the

appellant,  only during the course of his examination.   Whether or not

such complaints were in fact sent and were received by the addressee

should have been and were required to be proved in order to establish

that they were actually sent and received, as alleged.  All the aforesaid

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document were also pressed before the trial court as also the High Court

and they have given cogent reasons for rejecting the defense version as

also for rejecting evidentiary value of the said documents.  Therefore, in

our considered opinion the aforesaid defense version, which is put up by

the appellant is not trustworthy and stands rejected.  

12.So far as the question of delay in sending the samples of opium to the

Forensic Science Laboratory (FSL) is concerned, the same in our opinion

has no consequence for the fact that the recovery of the said sample from

the possession of the appellant stands proved and established by cogent

and reliable evidence led in the trial.  PW 5 has categorically stated and

asserted  about  the  recovery  of  opium  from  the  possession  of  the

appellant, which fact is also corroborated by a higher officer, namely, SS

Mann, DSP who was also examined at length during the trial.  The said

recovery was  effected  in  the  presence  of  the  said  SS Mann,  DSP,  as

senior police officer, who also put his seal on the said parcels of opium.

The  then  Station  House  Officer,  Inspector  Baldev  Singh,  who  was

examined as PW 1, was posted at Police Station Ajnala on the date of

occurrence.   He received  the  said  samples  of  opium along  with  case

material, being produced before him by PW 5.  It has come on evidence

that Inspector Baldev Singh kept the entire case property with him till it

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was  deposited  in  the  office  of  the  Chemical  Examiner,  Amritsar  on

30.9.1997 through ASI Surinder Singh, (PW-3).   It has also come on

evidence that  till  the date the parcels of sample were received by the

Chemical  Examiner,  the  seal  put  on  the  said  parcels  was  intact.  That

itself  proves  and  establishes  that  there  was  no  tampering  with  the

aforesaid seal in the sample at any stage and the sample received by the

analyst for chemical examination contained the same opium which was

recovered  from the  possession  of  the  appellant.  In  that  view  of  the

matter, delay of about 40 days in sending the samples did not and could

not  have  caused  any  prejudice  to  the  appellant.   The  aforesaid

contention, therefore, also stands rejected.

13. The contention  of  Mr.  Singh that  Section 55 of  the Act,  which is  a

mandatory provision, was violated is also found to be without merit in

the light  of  the decision  of  this  Court  in  Karnail  Singh  v.  State of

Rajasthan  [(2000) 7 SCC 632] relied by him in order to buttress  his

argument, wherein, a similar contention was raised that after the seizure

the goods  were sent  to  the Superintendent,  Central  Narcotics  Bureau,

Kota,  who,  as  per  law, was in  charge of  a police  station but  had  not

affixed his seal on the articles and the samples, and therefore the whole

of the procedure followed became illegal,  entitling the appellant  to be

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acquitted.  In the light of the aforesaid submissions, the Supreme Court

proceeded  to  hold  that  with  the  application  of  Section  51  read  with

Sections  52  and  53,  the  officer  required  to  affix  the  seal  etc.,  under

Section 55, would be “the officer in charge of the nearest police station”

as  distinguishable  from  an  officer  in  charge  of  a  police  station

empowered under Section 53.  It was also held that if the arrested person

and  the  seized  articles  are  forwarded  under  Section  52(3)(b)  to  the

officer  empowered under  Section  53,  the  compliance  with  Section  55

cannot be insisted upon.   The Supreme Court further held in the said

case that keeping in view the multifarious activities and the duties cast

upon  the  officer  in  charge  of  the  police  station  under  the  Code  of

Criminal Procedure and he being apparently busy with the duties under

the Code,  the  officers  mentioned in  Section  53 of  the Act have been

mandated to take action  for  disposal  of  the  seized narcotic  drugs  and

psychotropic substances by filing an application which, when filed, has

to be allowed by the Magistrate as soon as may be.   

The appellant has also failed to show any prejudice caused to him for

not  putting  the  seal  in  the  sample  by the  officer-in-charge  of  the  police

station.   PW 5 has categorically stated that on reaching the Police Station,

Ajnala, he handed over the case property with the seals intact to the officer-

in-charge of the said police station, who was examined in the trial as PW 1.

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PW 1 in is deposition has also stated that Inspector Jarnail Singh produced

before him the case property and sample on 20.8.1997 with seals intact.  He

has also stated that so long the said articles remained in his custody and

possession,  the same were not  tampered with.    In the light  of aforesaid

nature of evidence on record, no prejudice is caused to the appellant on that

count.

In the case of  Ouseph v.  State of Kerala, [(2004) 10 SCC 647] it

was held by this Court that under the provisions of Section 55 of the Act,

the requirement  may not  be mandatory. However in  that  case in view of

peculiar facts of the case and as the contraband articles were kept in totally

unsealed  condition  for  near  about  two months  it  was  held  that  the same

creates doubt.  

14.As  far  as  the  submission  that  as  Inspector  Jarnail  Singh  was  the

complainant he should not have been made the investigating officer is

concerned we may make reference to the decision of this Court in State

v. V. Jayapaul, [(2004) 5 SCC 223], wherein it was held as under:

“We find no principle or binding authority to hold that the moment  the  competent  police  officer,  on  the  basis  of information received,  makes out  an  FIR incorporating  his name as the informant, he forfeits his right to investigate. If at  all,  such  investigation  could  only  be  assailed  on  the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper

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to  lay  down  a  broad  and  unqualified  proposition,  in  the manner in which it has been done by the High Court, that whenever  a  police  officer  proceeds  to  investigate  after registering  the  FIR  on  his  own,  the  investigation  would necessarily be unfair or biased”

Concurring  with  the  Courts  below  we  have  already  held  that  the

version of the defense is nothing more than a got up story of his own whims

and caprices,  thus  in  the facts  and circumstances  of  the  present  case the

question of bias does not arise.   Sri Jarnail Singh made the recoveries of the

opium  and  seized  the  same  and  therefore,  he  was  rightly  made  the

Investigating Officer in the case. The defense case which is found to be a

got up story was sought to be made out only during the trial by which time

investigation was complete.   This contention therefore is also found to be

without merit.  

15.In view of the aforesaid observations and findings recorded by us, we

find  no  merit  in  the  appeal,  which  is  accordingly  dismissed.   The

appellant, who is in the custody, shall serve the remaining sentence, in

accordance with law.   

…………………………..J.                                                                             (Dr. Arijit Pasayat)

……………………………J. (Dr. Mukundakam Sharma)

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New Delhi, August 20, 2008

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