Jarnail Singh Vs State
J U D G M E N T
appeal is directed against the final Order of the High Court of Punjab and Haryana
at Chandigarh dated 12th May, 2008 passed in Criminal Appeal No. 590 - SB of 1999,
whereby the High Court upheld the order of conviction passed against the
appellant herein under Section 18 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to as "NDPS Act"), and sentenced him to
undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac
and in default of payment of the same, to undergo rigorous imprisonment for
another two years, for having been found in possession of 1 kg and 750 grams of
opium without any permit or licence.
prosecution story is that on 23rd September, 1994 at around 2.30 PM, Inspector
Ram Pal Singh (PW4) along with SI Gurdeep Singh, ASI Satpal Singh (PW5) and other
officials were on duty and coming from village Hassanpur to village Mirsapur.
After reaching near the bridge of canal minor while going on kacha path, the police
party noticed the appellant coming from the bank of canal. On seeing the police
party, the appellant tried to run away but on suspicion he was apprehended. On enquiry,
he informed the police about his name, parentage, address etc. At that time, he
was carrying a bag (thaili) in his right hand. PW4 suspected that that the
appellant was carrying some incriminating articles in his bag. The search was
conducted and the police party recovered 1 Kg and 750 gram opium from his
grams of opium was put into a tin container as a sample. It was duly sealed. The
entire case property was taken into possession vide memo Ex. PD attested by SI Gurdeep
Singh and ASI Satpal Singh. The seal after use was handed over to ASI Satpal
Singh (PW5). The appellant could not produce any valid license or permit for
possession of the said opium. On personal search, currency notes amounting to
Rs. 25 /- was also recovered from the accused and the same was taken into possession
vide memo Ex. P1, signed by the appellant. Ruqa Ex. PF was sent to the police station
and subsequently the FIR was registered. Inspector, Ram Pal (PW4) recorded the statements
of the witnesses and arrested the appellant.
Ram Pal (PW4) then produced the appellant along with the case property and witnesses
before Satpal Singh (PW5) on the same day of the alleged crime. PW4 enquired about
the alleged incident from other witnesses and checked the case property and also
affixed his own seal bearing impression `RP' on the case property and on samples
of seal Ex. PD/1. Thereafter, PW3 at 7.30 PM deposited the sealed case property
with MHC Shudh Singh. The investigation was duly completed and challan against the
appellant was prepared by S.I. Bagh Singh. The prosecution in support of its case,
examined Sudh Singh (Head Constable) (PW1), Chet Ram (PW2), Rachpal Singh (Inspector)
(PW3), Ram Pal Singh (PW4) and Satpal Singh (PW5).
Addl. Sessions Judge vide its final order and judgment dated 19th May, 1999
convicted and sentenced the appellant under section 18 of the NDPS Act, as noticed
above. The High Court, in an appeal, vide judgment dated 12th May, 2008
affirmed the findings of the Sessions Court and dismissed the appeal filed by
the appellant. Hence the appeal before this Court.
have heard the counsel for both parties. Mr. Ujjal Singh, counsel for the
appellant submits as follows:
whole incident happened in a densely populated area and there were so many independent
witnesses but only the police have been made the prosecution witnesses. The appellant
has been falsely implicated.
courts below have not considered the appellant's version as recorded under Section
The appellant was apprehended
from his village on 10th September, 1994 by the police party. Another police party
dug up his house and courtyard looking for illicit arms. But nothing
incriminating was found. The Ex-Sarpanch, Narang Singh asked them the reason for
the digging. The police told him that they were searching for opium and illicit
arms, and that he had relations with terrorists. Thereafter, the police took the
appellant to CIA staff. He was tortured by using third degree methods. Then he was
falsely implicated in this case. The Courts below have also disregarded the deposition
of DW-1, Sarpanch Narang Singh for no valid grounds.iii. Section 50 of the NDPS
Act is a mandatory provision but the same was never followed in the present case.
The appellant was never given any option nor taken to the nearest Gazetted Officer
or Magistrate for his search.iv. There is a delay of twelve days in sending the
sample for the chemical examination. The prosecution has not been able to give any
reasonable justification for such delay. v. The consent statement made by the appellant
is in-admissible under section 25 of the Indian Evidence Act, 1872.vi. There are
vital lapses in the present case. The version deposed by PW -3 is inconsistent
with the deposition of PW -4. vii. The prosecution has not been able to prove
as to from where they got weighing scale, tin dabba and dabhi. The police also could
not give any valid reason as to why they had gone to the spot. This shows that they
were pre - prepared and have falsely implicated the appellant.
the other hand, Mr. H.M. Singh, counsel for the respondent submits as follows:
i. The appellant is rightly
been convicted under section 18 of the NDPS Act. There are numerous witnesses
and evidences to prove his guilt.
ii. ii. The appellant was
apprehended with contraband by the policy party and he was arrested after the registration
of his case vide Ruqa Ex. PF.
iii. iii. The deposition
of DW-1, Sarpanch Narang Singh is baseless. The appellant was arrested on 23rd September,
1994 but DW -1 appeared for the first time before the Sessions Court on 13th May,
1999, i.e. after five long years. iv. Delay of 11 - 12 days in sending the
sample for chemical examination is not enough to demolish the case of the prosecution.
There is nothing on record to show that the sample parcel was tampered by the
prosecution at any stage.
trial court as also the High Court have meticulously examined and re-examined the
entire evidence. On such close scrutiny, both the courts have concurrently
found that the prosecution has proved its case beyond reasonable doubt.
Undoubtedly the jurisdiction and the powers of this Court under Article 136 are
very wide. Even then, interference with concurrent findings of fact would be an
exception and not the rule. On numerous occasions, this Court has emphasised that
an appeal under Article 136 cannot be converted into a third appeal on facts.
This Court in the case of Ganga Kumar Srivastava Vs. State of Bihar1 discussed
at length, the circumstances in which this Court may interfere with the
concurrent finding of facts; which are as follows: "From the aforesaid series
of decisions of this Court on the exercise of power of the Supreme Court under Article
136 of the Constitution following principles emerge:
powers of this Court under Article 136 of the Constitution are very wide but in
criminal appeals this Court does not interfere with the concurrent findings of fact
save in exceptional circumstances.
is open to this Court to interfere with the findings of fact given by the High Court,
if the High Court has acted perversely or otherwise improperly.
is open to this Court to invoke the power under Article 136 only in very exceptional
circumstances as and when a question of law of general public importance arises
or a decision shocks the conscience of the Court.
the evidence adduced by the prosecution fell short of the test of reliability
and acceptability and as such it is highly unsafe to act upon it.
the appreciation of evidence and finding is vitiated by any error of law of procedure
or found contrary to the principles of natural justice, errors of record and misreading
of the evidence, or where the conclusions of the High Court are manifestly perverse
and unsupportable from the evidence on record.
first submission of Mr. Ujjal Singh, learned counsel, is that the appellant has
been falsely implicated. We are unable to accept this submission. Merely because
the prosecution has not examined any independent witness, would not necessarily
lead to the conclusion that the appellant has been falsely implicated. It was
clearly a case where the police personnel had noticed the odd behaviour of the
appellant when he was walking towards them on a path which led to village Mirzapur.
It was the display of hesitation by the appellant on sighting the police party
that Satpal Singh (PW5) became suspicious. On seeing the police personnel, the
appellant tried to run away from the scene. It was not a case where the
prosecution has claimed that the appellant was apprehended on the basis of any earlier
information having been given by any secret informer. It was also not a case of
trap. In such circumstances, it would not be possible to hold that the appellant
has been falsely implicated.
prosecution has offered a plausible explanation with regard to non-joining of the
independent witnesses. It was clearly stated by PW5 that the path on which the
appellant was apprehended was not frequently used by the public. In fact, efforts
were made to bring a member of Panchayat or Sarpanch of the village. However, the
Head Constable Baldev Singh who had been sent, reported that none of the villagers
were prepared to join as independent witnesses. This reluctance on the part of the
villagers is neither strange nor unbelievable. Generally, people belonging to
the same village would not unnecessarily want to create bad relations/enmity with
any other villager. Especially when such a person would be feeling insecure, having
been accused of committing a crime.
also do not find any substance in the submission of Mr. Ujjal Singh that both
the courts have ignored the plea of the appellant under Section 313 of the Cr.P.C.
without any basis. The evidence of DW1, Narang Singh, upon which the appellant placed
heavy reliance would not be of much assistance to the appellant. It is note worthy
that even according to the appellant the police had dug up his house and the courtyard
on 10th September, 1994. According to the appellant, nothing incriminating was found.
This was sought to be supported by the evidence given by DW1, the Ex-Sarpanch,
Narang Singh. Both the courts below, in our opinion, have correctly concluded that
such evidence cannot be believed as the witness DW1 seems to have appeared for the
first time as a witness in court on 13th May, 1999. Prior to the appearance in court,
this Ex- Sarpanch did not make any complaint in writing either to the police authorities
or to the civil administration. Being the Ex- Sarpanch of the village, he can be
expected to act with responsibility.
There is no material to
show that he made any efforts to complain about the high handed behaviour of the
police. In our opinion, both the courts below have rightly discarded the
evidence of DW1.12.The next submission made by Mr. Ujjal Singh is that there has
been non compliance of Section 50 of the NDPS Act, in that requisite option was
not given to the appellant, as to, whether he wanted to be searched in the presence
of a Gazetted Officer or a Magistrate. We are unable to accept the aforesaid submission.
Inspector Ram Pal (PW4) has clearly stated that the option was duly given to the
appellant. The appellant had, in fact, signed on the consent statement expressing
his confidence to be searched in presence of the aforesaid witness. Similarly, Satpal
Singh PW5 has also stated that before affecting the search, the accused/appellant
was given the necessary option as to whether he wanted to be searched before a
Gazetted Officer or a Magistrate. This witness also stated that the appellant reposed
his confidence in Inspector Rampal. In such circumstances, it cannot be held that
there was non compliance with Section 50 of the NDPS Act.
apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered
from the bag (thaili) which was being carried by the appellant. In such
circumstances, Section 50 would not be applicable. The aforesaid Section can be
invoked only in cases where the drug/narcotic/NDPS substance is recovered as a
consequence of the body search of the accused. In case, the recovery of the
narcotic is made from a container being carried by the individual, the
provisions of Section 50 would not be attracted.
This Court in the case
of Kalema Tumba Vs. State of Maharastra discussed the provisions pertaining to `personal
search' under Section 50 of the NDPS Act and held as follows; "....... if a
person is carrying a bag or some other article with him and narcotic drug or psychotropic
substance is found from it, it cannot be said that it was found from his
person." Similarly, in the case of Megh Singh Vs. State of Punjab3, this
Court observed that; "A bare reading of section 50 shows that it applies in
case of personal search of a person. It does not extend to a search of a vehicle
or container or a bag or premises." The scope and ambit of Section 50 was
also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar4.
In paragraphs 10 and 11, this Court observed as follows:-
We are not concerned
here with the wide definition of the word "person", which in the legal
world includes corporations, associations or body of individuals as factually
in these type of cases search of their premises can be done 2 (1999) 8 SCC 2573
(2003) 8 SCC 6664 (2005) 4 SCC 350 14and not of their person. Having regard to the
scheme of the Act and the context in which it has been used in the section it
naturally means a human being or a living individual unit and not an artificial
person. The word has to be understood in a broad common-sense manner and, therefore,
not a naked or nude body of a human being but the manner in which a normal human
being will move about in a civilised society. Therefore, the most appropriate meaning
of the word "person" appears to be -- "the body of a human being
as presented to public view usually with its appropriate coverings and clothing".
In a civilised society appropriate coverings and clothings are considered absolutely
essential and no sane human being comes in the gaze of others without appropriate
coverings and clothings. The appropriate coverings will include footwear also as
normally it is considered an essential article to be worn while moving outside one's
home. Such appropriate coverings or clothings or footwear, after being worn,
move along with the human body without any appreciable or extra effort. Once worn,
they would not normally get detached from the body of the human being unless
some specific effort in that direction is made.
For interpreting the
provision, rare cases of some religious monks and sages, who, according to the tenets
of their religious belief do not cover their body with clothings, are not to be
taken notice of. Therefore, the word "person" would mean a human being
with appropriate coverings and clothings and also footwear.11. 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 of 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.
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
It has come in
evidence that although the body search of the appellant was conducted but no
recovery of any narcotic was made. The body search only led to the recovery of
Rs.25/-from his pocket.
Ujjal Singh then submitted that the consent statement made by the appellant is inadmissible
under Section 25 of the Indian Evidence Act, 1872. We are unable to accept this
submission. The consent statement signed by the appellant has not been used as
a confession, therefore, the bar under Section 25 would not be applicable. A statement
in order to be treated as a confession must either admit in terms of an offence,
or at any rate substantially all the facts which constitute the offence. No confession
has been made in this case through the consent given by the appellant with
regard to any of the ingredients of the offence with which he was subsequently
Ujjal Singh then submitted that there was a delay of twelve days in sending the
sample of narcotic for chemical examination. This submission, in our opinion,
is without any factual basis. The trial court as well as the High Court, on
examination of the entire material, concluded that there was sufficient independent
evidence produced by the prosecution regarding the completion of link evidence.
Therefore, the delay in sending the sample parcel to the office of Chemical
Examiner pales into insignificance. We are of the considered opinion that mere
delay in sending the sample of the narcotic to the office of the Chemical
Examiner would not be sufficient to conclude that the sample has been tampered
There is sufficient evidence
to indicate that the delay, if any, was wholly unintentional. This Court had occasion
to deal with a similar issue, in the case of Balbir Kaur Vs. State of Punjab5. The
Court made the following observations: "As far as delay in sending the
samples is concerned, we find the said contention untenable in law. Reference
in this regard may be made to the decision of this Court in Hardip Singh case6 wherein
there was a gap of 40 days between seizure and sending the sample to the chemical
examiner. Despite the said fact the Court held that in view of cogent evidence that
opium was seized from the appellant and the seals put on the sample were intact
till it was handed over to the chemical examiner, delay itself is not fatal to the
" The trial court
as well as the High Court, on examination of the evidence on record, concluded
that the case property was handed over by Ram Pal (PW4), Investigating Officer to
the SHO Inspector Rachhpal Singh (PW3). This witness checked the case property
and affixed his own seal bearing impression `RS' on the case property as also
on the sample impression of the seal. The case property was deposited with MHC Sudh
Singh on the same day. Sudh Singh appeared as PW1 in court and tendered his affidavit
Ex. PA to the effect that the case property including the sample parcel and the
specimen impression of the seal, duly sealed and intact was deposited with him
by Ram Pal, PW4, on 23rd September, 1994. He also stated that he handed over
the sample parcel, duly sealed and sample impression of seal to Constable Chet Ram
on 4th October, 1994 for depositing the same in the office of Chemical Examiner.
It was further stated
that none had tampered with the aforesaid case property and the seal which
remained in his custody. He ultimately deposited the case property in the
office of Chemical Examiner on the same day and tendered receipt. This apart, there
is a report of the Chemical Examiner (Ex. PJ) which indicates that the seals
were intact when the sample was received and tallied with the sample impression
of the seal. It is note worthy that such a report of the Chemical Examiner would
be admissible under Section 293 of the Cr.P.C. Considering the aforesaid clear
evidence, it cannot be said that there is any infirmity in the link evidence
merely because there was a delay of few days in sending the sample to the
office of the Chemical Examiner.
considered the entire material on the record, the trial court as well as the
High Court have concurrently found the appellant guilty. We are unable to find any
perversity or any miscarriage of justice in the findings so recorded. Finding
no merit, we dismiss the appeal.
[Surinder Singh Nijjar]