2009(9) SCR 917 STATE OF PUNJAB

v. NIRMAL SINGH

(Criminal Appeal No. 1390 of 2004) APRIL 23, 2009

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

The Judgment/Order of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is the  judgment of a learned Single Judge of the Punjab and Haryana  

High Court directing acquittal of the respondent who faced trial for  

alleged commission of offence punishable under Section 15 of the  

Narcotic Drugs and Psychotropic Substances Act, 1985 (in short  

“Act”). It was alleged that the accused had kept 10 bags of poppy  

husk under  the  sugar  cane straw.  Learned Additional  Sessions  

Judge,  Sangrur  found the accused guilty  and sentenced him to  

undergo rigorous imprisonment for 10 years and to pay a fine of  

Rs. 1,00,000/- with default stipulation.

2. The prosecution version in a nutshell is as follows:

3.  On  February  25,  1988,  ASI  Darshant  Singh  PW2  was  

present  alongwith  Constable  Baldev  Singh,  Avtar  and  Gurjant  

Singh,  on  Malerkotla  bye-pass,  Dhuri.  He  received  a  secret  

information that the present appellant was selling poppy husk in  

his  house  and  if  raided,  the  same  could  be  recovered.  Head  

Constable Darshan Singh PW1 also arrived there and he too, was  

joined in the police party.  After receipt of the secret information,  

ruqa  Ex.PC  was  sent  to  the  concerned  police  station  for  the

registration  of  the  case,  on  the  basis  of  which,  formal  F.I.R.  

Ex.PC/1 was recorded by ASI Amarjit Singh. ASI Darshan Singh  

reached  Village  Bhanbauri,  where  Sant  Ram Chowkidar  of  the  

same village was also joined on the outskirts of the village. The  

police party, thereafter, raided the house of the appellant, where  

he was  found present.  He  was consequently  apprehended and  

interrogated  by  ASI  Darshan  Singh  PW2  in  the  presence  of  

witnesses, whereupon the appellant allegedly made a disclosure  

statement Ex.PA to the effect that he had kept concealed 10 bags  

of  poppy  husk  under  the  sugar  cane  straw lying  in  his  house,  

which he could get recovered. After reducing Ex.PA the statement  

into  writing,  which  was  thumb  marked  by  the  appellant  and  

attested  by  the  witnesses,  the  police  party  led  to  the  place  of  

concealment  and  from  there,  the  appellant  got  recovered  the  

contraband. Each bag contained 40 kg. of poppy husk. Out of each  

bag 250 grams was  taken  out  as  a  sample,  put  in  a  separate  

container and the same as also the remaining poppy husk were  

sealed with the seal bearing inscription “DS” and was taken into  

possession vide memo Ex.PB, duly attested by the witnesses. The  

seal after use was handed over to Head Constable Darshan Singh  

PW1. Rough site plan of the place of recovery Ex.PD was also  

prepared by ASI Darshan Singh. On return to the police station,  

the case property was deposited with seal intact with the MHC as  

no senior official was present in the police station. On receipt of  

the report of the public analyst Ex.PE, who opined the substance  

as  poppy  heads,  the  appellant  was  challaned.  A  charge  under  

Section 15 of the Act was framed against the appellant.

4.  In  order  to  substantiate  the  accusations,  prosecution  

examined several  witnesses like the Head Constable,  ASI,  who

was the Investigating Officer, one Sant Ram, Chowkidar who was  

joined before raid for the purpose of being a witness was given up  

by the prosecution as being won over. However, he was produced  

as the defence witnesss (DW1) by the accused. One Sukhminder  

Singh was also examined as DW2. The accused took the stand  

that  he  been  falsely  implicated  because  of  dispute  with  certain  

politicians. The trial court found the accused guilty.  

5. Before the High Court the stand of the accused was that he  

never made a disclosure for recovery of the articles purported to  

have been done on the basis of disclosure made under Section 27  

of the Indian Evidence Act, 1872 (in short the ‘Act’). It was also  

submitted that the requisite parameters of Section 50 of the Act  

were not kept in view. Finally,  it  was submitted that only on the  

basis of the evidence of the official witness conviction should not  

have recorded.

6. The High Court accepted the stand and directed acquittal. In  

support of the appeal, learned counsel for the appellant submitted  

that the High Court was erroneous.

7.  There is  no legal  bar  on recording the conviction  on the  

basis of evidence of official witness and Section 50 of the Act has  

no application as there was no personal search.

8. 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 v. State of Maharashtra and Anr.  (JT 1999 (8) SC 293),  

The  State  of  Punjab  v.  Baldev  Singh  (JT  1999  (4)  SC  595),  

Gurbax  Singh  v.  State  of  Haryana  (2001  (3)  SCC  28).  The  

language of Section 50 is implicitly clear that the search has to be

in  relation  to  a  person  as  contrasted  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 conclusion regarding non-compliance of Section  

50 of the Act is unsustainable.

9. Therefore,  the conviction of the High Court  which alleged  

contravention  Section  58  of  the  Act  is  clearly  unsustainable.  

Coming to the conclusion of the High Court their conviction cannot  

be  recorded  only  on  the  basis  of  official  witness  also  is  

indefensible.

11. This position was stated in State of Haryana vs. Mai Ram,  

Son of Man Chand (2008 (8) SCC 292) as follows:

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“So  far  as  the  examination  of  only  official  witness  is  

concerned, it is to be noted that the only independent witness  

who was examined to speak about the seizure did not support  

the prosecution version. 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  

witness suffers from any infirmity in the instant case nothing of  

the  nature  could  be  pointed  out.  Further  PWs  1  and  2  

categorically stated that no other person was willing to depose  

as witness. Therefore, the High Court was clearly in error in  

holding  that  the  prosecution  version  became  vulnerable  for  

non-examination of persons who were not official witnesses.”

12. The judgment of the High Court is set aside. The appeal is  

allowed. The respondent  shall  surrender  to  custody forthwith to  

serve the remainder of sentence.