Dehal Singh Vs. State
of H.P.  INSC 690 (31 August 2010)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1215 OF 2005 DEHAL
SINGH .... APPELLANT Versus WITH CRIMINAL APPEAL NO. 1216 OF 2005 DINESH KUMAR
.... APPELLANT Versus Chandramauli Kr. Prasad, J.
the appeals arise out of the same judgment and as such they were heard together
and are being disposed of by this common judgment.
case unfolded by the prosecution and accepted by both the Courts i.e. trial and
appellate Court is that on 18th 2 October, 2002 at 9.20 A.M. PW.16, Brijesh
Sood, Station House Officer, Police Station Sundernagar along with PW.8, Madan
Lal, Assistant Sub-Inspector of Police and other Police personnel were present
for a routine-check at Lalit Chowk at Sundernagar in the District of Mandi.
Brijesh Sood received a secret information that a car bearing Registration
No.HP-34- 7700 is coming from Mandi side in which two persons are carrying huge
quantity of `Charas'. The aforesaid information was reduced into writing and
intimation to the said effect was sent to the Additional Superintendent of
Police, Mandi. At about 10 A.M., one Maruti Esteem car bearing Registration No.HP-34-7700
came from Mandi side which was stopped by PW.16, Brijesh Sood and he found two
persons sitting in the car, including the driver. Brijesh Sood made enquiry
from the person who was driving the car and he disclosed his name as Dehal
Singh (appellant in Criminal Appeal No.1215 of 2005) and the other person
sitting on the front seat by the side of the driver-seat, disclosed his name as
Dinesh Kumar, resident of Goa (appellant in Criminal Appeal No.1216 of 2005).
Brijesh Sood gave option in writing to the accused persons, whether 3 they
want to give personal search or search of the vehicle before a Magistrate or a
Gazetted Officer. Both the appellants gave their consent for being searched by
him. Accordingly PW.16, Brijesh Sood searched the car and luggage lying inside
the car but nothing incriminating was found either in the car or the luggage. A
mechanic was called by PW.3, Churamani, who opened the shields of the
windows/doors when packets of brown colour were found concealed between the
shields and doors wrapped with black and red adhesive tape. On opening the
packets, `Charas' in the shape of stick and chappatis was detected. Churamani
was asked by PW.16, Brijesh Sood to bring weighing scale and weight. He brought
the weighing scale from the grocery shop of PW.5, Ram Lal and on weightment 27
Kg. 800 gms. of Charas was found. Two samples of 50 grams each were taken out
after mixing the entire charas. It was duly sealed.
Dehal Singh produced the registration certificate along with driving licence
and other papers concerning the vehicle. The appellants and seized Charas 4
along with samples were taken to the Police Station where the personal search
of the appellants was conducted. The samples of the Charas and other articles
recovered from the personal search of the appellants were deposited with PW.8,
Additional Malkhana Head Constable, Rajinder Kumar for safe custody. First
Information Report was thereafter drawn and a special report sent to the
Superintendent of Police. PW.8, Rajinder Kumar sent one parcel of the sample to
the Chemical Examiner, who in his report opined that it contained Charas.
investigation charge-sheet was submitted against the two appellants and
ultimately they were put on trial. They pleaded not guilty and claimed to be
prosecution in support of its case has all together examined 16 witnesses
besides various other documentary evidence were also brought on record. In
their statements, under Section 313 of the Code of Criminal Procedure appellants
pleaded false implication and both of them have stated that the appellant,
Dinesh Kumar had taken lift in the car from Kullu to Delhi.
appreciation of the evidence the trial court held both the appellants guilty
under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 and
sentenced them to undergo rigorous imprisonment for a period of 10 years each
and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to
suffer rigorous imprisonment for a further period of four years.
preferred separate appeals against the judgment and order of conviction and
sentence and the High Court of Himachal Pradesh by its common judgment dated
18th October, 2004 passed in Criminal Appeal Nos. 600 and 603 of 2003 dismissed
both the appeals.
the appellants assail the aforesaid order by grant of special leave to appeal.
Nagendra Rai, learned Senior Counsel appears on behalf of the appellant in
Criminal Appeal No.1215 of 2005, 6 whereas appellant in Criminal Appeal
No.1216 of 2005 is represented by Mr. P.S. Mishra, learned Senior Counsel.
Rai submits that according to the prosecution two samples of 50 gms. each were
taken and sent to the Forensic Science Laboratory for examination, but net
weight of the sample received in the laboratory was 65.5606 gms. This
discrepancy in weight of sample, in the submission of Mr. Rai, casts serious
doubt to the credibility of the prosecution case and this is enough to reject
the case of the prosecution.
Credibility of the
recovery proceedings, in his submission is eroded if the quantity found by the
analyst is more than the quantity sealed and sent to him. He points out that
taking into consideration the discrepancy in the weight of the samples at the
time when it was taken and in the laboratory, this Court in the case of Noor
Aga vs. State of Punjab and another, 2008(16) SCC 417, held the case of the
prosecution to be not trustworthy. Our attention has been drawn to paragraph 97
of the judgment which reads as follows:
"97. The fate of
these samples is not disputed.
Although two of them
were kept in the malkhana along with the bulk, but were not produced. No
explanation has been offered in this regard. So far as the third sample, which
allegedly was sent to the Central Forensic Science Laboratory, New Delhi is
concerned, it stands admitted that the discrepancies in the documentary
evidence available have appeared before the court, namely:
(i) While original
weight of the sample was 5 gm, as evidenced by Exts. PB, PC and the letter
accompanying Ext. PH, the weight of the sample in the laboratory was recorded
as 8.7 gm.
(ii) Initially, the
colour of the sample as recorded was brown, but as per the chemical-examination
report, the colour of powder was recorded as white."
has also been placed on a decision of this Court in the case of Rajesh Jagdamba
Avasthi vs. State of Goa, 2005(9) SCC 773, and our attention has been drawn to
paragraph 14 of the judgment which reads as follows:
"14. We do not
find it possible to uphold this finding of the High Court. The appellant was
charged of having been found in possession of charas weighing 180.70 gm. The
charas recovered from him was packed and sealed in two envelopes. When the said
envelopes were opened in the laboratory by the Junior Scientific Officer, PW 1,
he found the quantity to be different. While in one envelope the difference was
only minimal, in the other the difference in weight was significant. The High
Court itself found that it could not be described as a mere minor discrepancy.
Learned counsel rightly submitted before us that the High Court was not
justified in upholding the conviction of the appellant on the basis of what was
recovered only from envelope A ignoring the quantity of charas found in
envelope B. This is 8 because there was only one search and seizure, and
whatever was recovered from the appellant was packed in two envelopes. The
credibility of the recovery proceeding is considerably eroded if it is found
that the quantity actually found by PW 1 was less than the quantity sealed and
sent to him. As he rightly emphasised, the question was not how much was
seized, but whether there was an actual seizure, and whether what was seized
was really sent for chemical analysis to PW 1. The prosecution has not been
able to explain this discrepancy and, therefore, it renders the case of the
do not find any substance in the submission of Mr. Rai and the decisions relied
on are clearly distinguishable. The vehicle was intercepted and searched on a
highway and it has come in the evidence of PW.16, Brijesh Sood that he had sent
PW.3, Churamani to bring weighing scale and weight from the grocery shop of
PW.5, Ram Lal. From the evidence of PW.3, Churamani and PW.5, Ram Lal, the
grocery shop owner it is evident that the weighing scale and the weight came
from the grocery shop. It is common knowledge that weighing scale and weight
kept in the grocery-shop are not of such standard which can weigh articles with
great accuracy and therefore difference of 15 gms. in weight, in the facts and
circumstances of this case, is not of much significance. Sample was taken by a
common weighing scale and weight found in a grocery shop, 9 whereas the weight
in the laboratory recorded with precision scale. This would be evident from the
fact that the weight of the sample recorded in the laboratory was 65.5606 gms.
In this background, small difference in weight loses its significance, when one
finds no infirmity in other part of the prosecution story.
referring to the decision of this Court in the case of Noor Aga (supra) the
difference in the weight at the time of taking samples and at the laboratory
was considered material as in the said case the sample was taken by the Custom
Officials at the Airport and the Court came to the conclusion that weight was
taken from a precision scale. Further it is not only the discrepancy in the
weight which led this Court to reject the case of the prosecution but had taken
into consideration several other discrepancies to come to the said conclusion.
This shall be evident from paragraph 98 of the judgment, which reads as
"98. We are not
oblivious of the fact that a slight difference in the weight of the sample may
not be held to be so crucial as to disregard the entire 10 prosecution case as
ordinarily an officer in a public place would not be carrying a good scale with
Here, however, the
scenario is different. The place of seizure was an airport. The officers
carrying out the search and seizure were from the Customs Department. They must
be having good scales with them as a marginal increase or decrease of quantity
of imported articles whether contraband or otherwise may make a huge difference
under the Customs Act."
in the said case it has been observed that discrepancy in weight individually
may not be fatal. It is apt to reproduce paragraph 119 (3) and (4) of the said
judgment in this regard:
aforementioned findings may be summarised as follows:
1. xxx xxx xxx xxx
2. xxx xxx xxx xxx
3. There are a large
number of discrepancies in the treatment and disposal of the physical evidence.
contradictions in the statements of official witnesses. Non-examination of
independent witnesses and the nature of confession and the circumstances of the
recording of such confession do not lead to the conclusion of the appellant's
4. Finding on the
discrepancies, although if individually examined, may not be fatal to the case
of the prosecution but if cumulative view of the scenario is taken, the
prosecution's case must be held to be lacking in credibility.
5. xxx xxx xxx xxx 6.
xxx xxx xxx xxx"
we proceed to consider the decision of this Court in the case of Rajesh
Jagdamba Awasthi (supra) relied on by the appellants and find the same clearly
distinguishable. In the said case on fact the Court found the recovery
proceeding to be suspicious and further there was every possibility of the
seized substance tampered. Those infirmities led this Court to doubt the truthfulness
of the prosecution case. This is evident from paragraph 15 of the judgment
which reads as follows:
This is not all. We find from the evidence of PW 4 that he had taken the seal
from PSI Thorat and after preparing the seizure report, panchnama, etc. he
carried both the packets to the police station and handed over the packets as
well as the seal to Inspector Yadav. According to him on the next day, he took
back the packets from the police station and sent them to PW 3 Manohar Joshi,
Scientific Assistant in the Crime Branch, who forwarded the same to PW 1 for
chemical analysis. In these circumstances, there is justification for the
argument that since the seal as well as the packets were in the custody of the
same person, there was every possibility of the seized substance being tampered
with, and that is the only hypothesis on which the discrepancy in weight can be
explained. The least that can be said in the facts of the case is that there is
serious doubt about the truthfulness of the prosecution case."
Rai, then submits that though option was given to the appellant to be searched
before a Gazetted Officer or nearest 12 Magistrate but they were not apprised
of their right to be searched in their presence and hence the procedure followed
does not fulfill the requirement of Section 50 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the
"Act'"). He emphasized that accused is not to be given an option to
be searched in the presence of the Gazetted Officer or Magistrate but to be
apprised of his right to be searched in their presence. According to him
conveying option and apprising the right are distinct. According to him, this
does not satisfy the mandate of Section 50 of the Act and once its violation is
established the search and seizure is rendered illegal and on this ground alone
appellants' conviction is vitiated. He points out that the Charas was not
recovered from the possession of the appellants but from the vehicle, but
nonetheless appellants were also searched and thus it was obligatory to follow
the provisions of Section 50 of the Act. He finds support to the aforesaid
submission from the decision of this Court in the case of Dilip and another vs.
State of M.P., 2007 (1) SCC 450, and our attention has been drawn to paragraph
16 of the judgment which reads as follows:
13 "16.In this
case, the provisions of Section 50 might not have been required to be complied
with so far as the search of scooter is concerned, but keeping in view the fact
that the person of the appellants was also searched, it was obligatory on the
part of PW 10 to comply with the said provisions. It was not done."
16. This submission
of Mr. Rai does not commend us at all.
In the present case
the vehicle was searched and the Charas was recovered from the vehicle and
persons of the appellants were not searched. As the recovery has been from the
vehicle the provision of Section 50 of the Act, in our opinion, was not
required to be complied with. It is relevant here to mention that appellants
were not searched at the place where the vehicle was intercepted and searched
but after they were arrested, and brought to the Police Station, their search
was made to find out the articles possessed by them before lodging them in
only this, the prosecution has also claimed compliance of Section 50 of the
Act. Section 50(1) of the Act, which is relevant for the purpose, reads as
50. Conditions under
which search of persons shall be conducted.(1) When any officer duly authorised
under Section 42 is about to search any person under the provisions of Section
42 or Section 43, he shall, if such person as requires, take such person
without unnecessary delay to the nearest Gazetted Officer of any of the
departments mentioned in Section 42 or to the nearest Magistrate.
xxx xxx xxx xxx
a plain reading of the aforesaid provision it is evident that it comes into
play only when search of a person other than vehicle etc. is taken. Further the
authorized officer is to apprise person about to be searched to be taken to the
nearest Gazetted Officer or to the Magistrate, if the person about to be
searched so requires. Such an option was given to the appellants and, in our
opinion, it is nothing but apprising them of their right. Option to choose is
given to an accused when he has right to choose. It is communication of right
either to accept or reject. Therefore, in our opinion giving the appellants
option to be searched satisfied the requirement of Section 50 of the Act. In
the case of Dilip (supra) relied on by the appellants the question which fell
for consideration was as to whether Section 50 of the Act if at all required to
be 15 complied with and in the background of the fact that before search and
seizure of the contraband from the scooter, personal search of the accused was
carried out, this Court held that it was so required. This would be evident
from paragraph 12 of the judgment which reads as follows:
seizure of the contraband from the scooter, personal search of the appellants
had been carried out and, admittedly, even at that time the provisions of
Section 50 of the Act, although required in law, had not been complied
the present case, as observed earlier, the vehicle was searched at the first
instance and therefore there was no requirement at all to inform the appellants
their right to be searched in the presence of the Gazetted Officer or
Not only this, we
have found that by giving option the appellants were apprised of their right
and therefore the provision of Section 50 of the Act was fully complied with.
P.S. Mishra while adopting the submission advanced by Mr. Rai, has made an
additional submission. He contends that appellant Dinesh Kumar cannot be held
to be in 16 conscious possession of the Charas as he had taken lift in the
vehicle and he was not aware of the fact that Charas was being transported in
the vehicle. In this connection he had referred to the statements of the
appellants recorded under Section 313 of the Code of Criminal Procedure. Both
of them had specifically pleaded that this appellant had taken lift in the car.
According to Mr. Mishra if this explanation is accepted, this appellant
deserves to be acquitted.
do not find any substance in this submission of Mr. Mishra. Statement under
Section 313 of the Code of Criminal Procedure is taken into consideration to
appreciate the truthfullness or otherwise of the case of prosecution and it is
not an evidence. Statement of an accused under Section 313 of the Code of Criminal
Procedure is recorded without administering oath and, therefore, said statement
cannot be treated as evidence within the meaning of Section 3 of the Evidence
Act. Appellants have not chosen to examine any other witness to support this
plea and in case none was available they were free to examine themselves in
terms of Section 315 of the 17 Code of Criminal Procedure which, inter alia,
provides that a person accused of an offence is a competent witness of the
defence and may give evidence on oath in disproof of the charges. There is
reason not to treat the statement under Section 313 of the Code of Criminal
Procedure as evidence as the accused cannot be cross-examined, with reference
to those statements. However, when an accused appears as witness in defence to
disproof the charge, his version can be tested by his cross-examination.
Therefore, in our opinion the plea of the appellant Dinesh Kumar that he had
taken lift in the car is not fit to be accepted only on the basis of the
statements of the appellants under Section 313 of the Code of Criminal
the appellants have been found travelling in the car from which Charas was
recovered and, therefore, they were in possession thereof. They were knowing
each other. They were not travelling in a public transport vehicle. Distinction
has to be made between accused travelling by public transport vehicle and
private vehicle. It needs no emphasis that to bring the offence within the
mischief of Section 20 of the Act 18 possession has to be conscious
possession. Section 35 of the Act recognizes that once possession is
established the Court can presume that the accused had a culpable mental state,
meaning thereby conscious possession. Further the person who claims that he was
not in conscious possession has to establish it. Presumption of conscious
possession is further available under Section 54 of the Act, which provides
that accused may be presumed to have committed the offence unless he accounts
for satisfactorily the possession of contraband. The view which we have taken
finds support from a judgment of this Court in the case of Madan Lal and
another vs. State of H.P., 2003 (7) SCC 465, wherein it has been held as
possession is established, the person who claims that it was not a conscious
possession has to establish it, because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption available in law.
Similar is the position
in terms of Section 54 where also presumption is available to be drawn from
possession of illicit articles.
In the factual scenario of the present case, not only possession but conscious
possession has been 19 established. It has not been shown by the accused-
appellants that the possession was not conscious in the logical background of
Sections 35 and 54 of the Act."
we do not find any merit in these appeals and they are dismissed accordingly.
( HARJIT SINGH BEDI )
(CHANDRAMAULI KR. PRASAD)