Surender at Kala vs. State of Haryana

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IN
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 50 of 2016
(Arising from the SLP(Crl.) No. 2082 of 2015)
Surender @ Kala
. Appellant
Versus
State of Haryana
. Respondent
JUDGMENT
Uday U. Lalit, J.
1.
Leave granted.
2.
This appeal is directed against the judgment and order
dated 11.12.2014 passed by the High Court of Punjab and

Haryana dismissing Criminal Appeal No. S-318-SB of 2004
preferred by the appellant against his conviction under Section
18 of Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as the Act) for being in possession of 1
kg of opium without any permit or licence.
3.
According to the prosecution PW6 SI Satbir Singh was on
usual patrol duty on 24.06.2002 along with other police officials
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at bus stand of village Bichpar, Distt Sonipat. Secret information

was received by him that the appellant was selling opium and
was roaming in the village in search of customers.
This
information was reduced to writing in the form of Ruqa Ext. PF

and was sent to the Police Station for information, whereupon
DDR Ext. PC was recorded. PW6 Satbir and other police officials
reached the bus stand and saw the appellant coming from village
Gangana side. He was apprehended. The appellant was told that
he was suspected to be carrying opium in his possession and as
such his personal search had to be undertaken and that he had a
right to be searched in the presence of a Gazetted Officer or a
Magistrate. The appellant was given an appropriate notice vide
Ext. PA under Section 50 of the Act and by his reply Ext. PA/1 he
opted to be searched before a Gazetted Officer.
4.
Thereafter a wireless message was sent to PW4 Shyam
Singh Rana, DSP Gohana who reached the spot. The appellant
was produced before him and PW4 was also acquainted with the
facts of the case. Thereafter, on the instructions of PW4, personal
search of the appellant was undertaken which resulted in
recovery of opium from the possession of the appellant. The
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opium was found in a polythene bag tied in a cloth around the

stomach of the appellant. On weighment, it was found to be 1kg
50gms. A sample was taken and put in a small plastic bag while
the remainder was put in a bag of cloth. The sample and the
remainder were separately sealed and taken in possession vide
memo Ext. PB. The seal was then handed over to PW1 ASI
Bishamber Lal. Thereafter Ruqa Ext. PC was sent to the Police
Station for registration of crime, whereupon FIR Ext. PC was
recorded by PW2 Head Constable Om Parkash.
5.
The appellant along with the case property was produced
before PW3 Yad Ram SHO of Police Station who verified the fact
and put his own seal bearing impression YR on the sample as
well as on the remainder. Thereafter the sealed case property
was handed over to the Investigating Officer who deposited the
same with Malkhana. In due course of time the FSL report Ext. PD
was received wherein it was opined that the sample in question
was opium. After completion of investigation the appellant was
charge-sheeted and tried for having committed the offence
punishable under Section 18 of the Act.
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6.
The prosecution in support of its case examined six
witnesses. PW1 ASI Bishamber Lal stated as under:As contraband article was suspected with the accused
so he was served with a notice Ext. PA to opt about his
search before a Gazetted Officer or a Magistrate, which
is bearing my signatures. Accused opted for his search
before a Gazetted officer vide endorsement Ex. PA/1
which is bearing my signatures.
PW2 Head Constable Om Parkash in his deposition stated as

under:On that day ASI Bishamber Lal deposited the case
property with me, which was sealed with seal SS.
Pw 3 SI Yad Ram in his deposition stated as under:On 24.06. 2002, I was posted SI/HO P.S. Baroda. On
that day SI Satbir Singh had produced the accused now
present in the court, two sealed parcels and the
witnesses before me. I verified the investigation and
affixed my own bearing inscription YR. I directed SI
Satbir Singh to deposit the case property with seals
intact with the MHC P.S. Baroda.
PW4 Shyam Singh Rana DSP stated as under:I directed SI Satbir Singh to carry out the search of the
accused. During the course of search SI Satbir Singh
recovered opium wrapped in a cloth was tied with the
stomach of the accused underneath the shirt and the
vest of the accused wrapped in a polythene pack. On
weighment it was found to be one kilogram. SI Satbir
Singh took out 50grams of opium from the recovered
bulk and sealed the sample and the remainder into two
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separate parcels with the sealed bearing inscription

SS. Both the sealed parcels were taken into possession
vide recovery memo EX. PB which was signed by ASI
Bishamber Lal and HC Suresh Kumar and was attested
by me also.
7.
In his statement under Section 313 Cr. P.C. the appellant
denied the prosecution allegations and pleaded innocence. After

considering the material on record and rival submissions, the
Special Judge, Sonipat found the appellant guilty of offence
punishable under Section 18 of the Act and by his judgment and
order dated 14.11.2004 sentenced him to undergo rigorous
imprisonment for 5 years and to pay fine of Rs. 10000/-, in
default whereof to undergo further rigorous imprisonment for a
period of 8 months.
8.
The judgment of conviction and sentence was challenged
by way of Criminal Appeal of S-318 SB of 2004 in the High

Court. After considering the entire material on record, the High
Court by its judgment under appeal affirmed the view taken by
the Trial Court and dismissed the appeal. The correctness of the
view taken by the High Court is under challenge in the present
appeal.
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9.
It was submitted by Mr. Rakesh Dahiya, learned advocate
appearing for the appellant that the investigation in the matter

was conducted by PW6 SI Satbir Singh who himself was the
complainant. Relying on the decision of this court in State by
Inspector
of
Police,
Narcotic
Intelligence
Bureau,
Madhurai, Tamil Nadu v. Rajangam1, the learned counsel

submitted that the investigation by PW6 SI Satbir Singh was
improper and the appellant was entitled to acquittal.
10. We have given anxious consideration to the submissions of
the learned counsel. In State v. Rajangam (supra), the High
Court had acquitted the accused. Relying upon the decision of
this court in Megha Singh v. State of Haryana2, the view
taken by the High Court was affirmed by this Court in an appeal
against acquittal. In Megha Singh the accused was tried under
the provisions of the TADA Act and the Arms Act for being in
possession of a country made pistol and three live cartridges.
The prosecution did not examine any independent witness and
simply relied upon the testimony of PW3 Investigating Officer.
There
was
also
discrepancy
in
the
depositions
of
PW3
11.
2010(15) SCC 369

2 1996(11) SCC 709
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Investigating Officer and another police person namely PW2. In

the light of these facts,
it was observed in Megha Singh as
under:
After considering the facts and circumstances of
the case, it appears to us that there is discrepancy in
the depositions of the P.Ws.2 and 3 and in the absence
of any independent corroboration such discrepancy
does not inspire confidence about the reliability of the
prosecution case. We have also noted another
disturbing feature in this case. PW3, Siri Chand, head
Constable arrested the accused and on search being
conducted by him a pistol and the cartridges were
recovered from the accused. It was on his complaint a
formal first information report was lodged and the case
was initiated. He being complainant should not have
proceeded with the investigation of the case. But it
appears to us that he was not only the complainant in
the case but he carried on with the investigation and
examined witnesses under Section 161 Cr.P.C. Such
practice, to say the least, should not be resorted to so
that there may not be any occasion to suspect fair and
impartial investigation.
11. In Megha Singh, the search was not conducted in the
presence of a Gazetted Officer, as is required in a case under the
Act.
In the instant case the search of the appellant was
conducted in the presence of and under the instructions of PW4.

The extracts of depositions of other prosecution witnesses show
that it was not PW6 S.I. Satbir Singh alone who was involved in
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the investigation. In our view the principle laid down in Megha

Singh and followed in State vs. Rajangam does not get
attracted in the present matter. Relevant to note that this was
not even a ground projected in support of the case of the
appellant and does not find any reference in the judgment under
appeal. We therefore reject the submission.
12. Having gone through the entirety of the matter, we do not
find any reason to differ from the view taken by the High Court.
We therefore dismiss this appeal.
J.
(V. Gopala Gowda)
..J.
(Uday Umesh Lalit)
New Delhi,
January 19, 2016
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ITEM NO.1D-For Judgment
COURT NO.10
SECTION IIB
S U P R E M E C O U R T O F
RECORD OF PROCEEDINGS
I N D I A
Crl.A.No.50/2016 @ Petition(s) for Special Leave to Appeal (Crl.)

No(s). 2082/2015
SURENDER @ KALA
Petitioner(s)
VERSUS
STATE OF HARYANA
Respondent(s)
Date : 19/01/2016 This appeal was called on for pronouncement of

JUDGMENT today.
For Petitioner(s)
Mr. Rakesh Dahiya,Adv.
For Respondent(s)
Mr. Sanjay Kumar Visen,Adv.
Hon'ble Mr. Justice Uday Umesh Lalit pronounced
the
judgment
of
the
Bench
comprising
Hon'ble
Mr.
Justice V. Gopala Gowda and His Lordship.

Leave granted.
The appeal is dismissed in terms of the signed
reportable judgment.
Pending
application(s),
if
any,stand(s)
disposed
of.
(VINOD KUMAR)
COURT MASTER
(MALA KUMARI SHARMA)

COURT MASTER
(Signed Reportable Judgment is placed on the file)
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WWW.LIVELAW.

This appeal is directed against the judgment and order

dated 11.12.2014 passed by the High Court of Punjab and

According to the prosecution PW6 SI Satbir Singh was on

usual patrol duty on 24.06.2002 along with other police officials

at bus stand of village Bichpar, Distt Sonipat. Secret information

information was reduced to writing in the form of Ruqa Ext. PF

Thereafter a wireless message was sent to PW4 Shyam

opium was found in a polythene bag tied in a cloth around the

The appellant along with the case property was produced

The prosecution in support of its case examined six

PW2 Head Constable Om Parkash in his deposition stated as

separate parcels with the sealed bearing inscription

In his statement under Section 313 Cr. P.C. the appellant

denied the prosecution allegations and pleaded innocence. After

The judgment of conviction and sentence was challenged

by way of Criminal Appeal of S-318 SB of 2004 in the High

It was submitted by Mr. Rakesh Dahiya, learned advocate

appearing for the appellant that the investigation in the matter

Madhurai, Tamil Nadu v. Rajangam1, the learned counsel

2010(15) SCC 369

Investigating Officer and another police person namely PW2. In

it was observed in Megha Singh as

In the instant case the search of the appellant was

conducted in the presence of and under the instructions of PW4.

the investigation. In our view the principle laid down in Megha

Crl.A.No.50/2016 @ Petition(s) for Special Leave to Appeal (Crl.)

Date : 19/01/2016 This appeal was called on for pronouncement of

Justice V. Gopala Gowda and His Lordship.

(MALA KUMARI SHARMA)

(Signed Reportable Judgment is placed on the file)

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