KASHMIRI LALversusSTATE OF HARYANA

                       [2013) 3 S.C.R. 770


A                         KASHMIR! LAL
                                 v.
                      STATE OF HARYANA
               (Criminal Appeal No. 1576 of 2009)

                           MAY 16, 2013
B
        [DR. B. S. CHAUHAN AND DIPAK MISRA, JJ.]

       NARCOTIC   DRUGS               AND    PSYCHOTROPIC
    SUBSTANCES ACT, 1985:
c
        ss. 18 and 50 - Seizure of contraband from tool box of
  scooter of accused - Conviction and sentence of 10 years RI
  and fine of Rs. 1 lakh - Affirmed by High Court - Held: In the
  instant case, non-examination of independent witnesses does
  not affect prosecution case -- Evidence of official witnesses
0
  is reliable and absolutely trustworthy and court can act upon
  the same - In case of search of vehicle, s.50 is not attracted
  - Appeal having been filed in 1996, the 2001 amendment
  regarding determination of commercial or non-commercial
  quantity has no relevance -- Non-production of scooter in court
E is also of no avail as it has been established that the scooter
  belonged to appellant - Conviction and sentence upheld -
  Evidence - Non-examination of independent witnesses -
  Investigation - Notification SO No. 1055(E) dated 19.10.2001.

F      The appellant was convicted and sentenced to 10
  years RI and to pay a fine of Rs. 1 lakh uls 18 of the
  Narcotic Drugs and Psychotropic Substances Act, 1985,
  as the charge that 5 % kg of opium was recovered from
  the tool box of his scooter, was found proved. The High
G Court affirmed the conviction and the sentence.
        Disposing of the appeal, the Court
      HELD: 1.1 As far as non-examination of independent
  witness is concerned, it is evincible from the evidence on
H                             770
        KASHMIRI LAL v. STATE OF HARYANA                 771


record that the police officials had requested the people      A
present in the 'dhaba' to be witnesses, but they declined
to cooperate and, in fact, did not make themselves
available. That apart, there is no absolute command of law
that the police officers cannot be cited as witnesses and
their testimony should always be treated with suspicion.       B
Ordinarily, the public at large show their disinclination to
come forward to become witnesses. If the testimony of
the police officer is found reliable and trustworthy, the
court can definitely act upon the same. In the instant
case, there is no acceptable reason tc. discard the            c
testimony of the official witnesses which is otherwise
reliable and absolutely trustworthy. [para 9] [777-C-E, G]

                                                     =
      State of U. P. v. Anil Singh 1988 Suppl. SCR 611 1988
  Suppl. SCC 686, State, Govt. of NCT of Delhi v. Sunil and
  Another 2000 (5) Suppl. SCR 144 = 2001 (1) SCC 652; and      D
· Ramjee Rai and Others v. State of Bihar2006 (5) Suppl. SCR
240 =20~6 (13) sec 229 - relied on.
     1.2 With regard to non-compliance of s.50 of the Act,
there is no dispute over the fact that the seizure had taken   E
place from the tool box of the scooter. When a vehicle is
searched and not the person of an accused, s. 50 of the
Act is not attracted. There is ample evidence on record
that the scooter belongs to the appellant and the search
and seizure was made in the tool box of the scooter.           F
Therefore, non-production of the scooter in the court is
of no avail. [para 10 and 15] [778-A-B; 780-F-G]

    Ajmer Singh v. State of Haryana 2010 (2) SCR 785 =
2010 (3) SCC 746; Madan Lal v. State of H.P. 2003 (2)
                  =
Suppl. SCR 716 2003 (7) SCC 465; and State of H.P. v. G
Pawan Kumar 2005 (3) SCR 417 = 2005(4) SCC 350; E.
Micheal Raj v. Intelligence Officer, Narcotic Control Bureau
2008 (4) SCALE 592; Basheer Alias N.P. Basheer v. State
of Kera/a 2004 (2) SCR 224 = 2004 (3) sec 609; and Nayak
                                                               H
    772      SUPREME COURT REPORTS             [2013] 3 S.C.R.

A Ramesh Chandra Keshavlal v. State of Gujarat (2004) 11
  sec 399 - relied on.
      1.3 So far as the contraband to be treated as non-
  commercial quantity, in the case at hand, the appeal was
  pending in 1996 and, therefore, the ameliorative provision
8
  brought by way of amendment in the year 2001 would
  not be applicable. [para 14) [780-C-D]

                        Case Law Reference:
          1988 Suppl. SCR 611      relied on        para 9
c
          2000 (5) Suppl. SCR 144 relied on         para 9
          2006 (5) Suppl. SCR 240 relied on         para 9
          2010 (2) SCR 785         relied on        para 10
D
          2003 (2) Suppl. SCR 716 relied on         para 10
          2005 (3) SCR 417         relied on        par~ 10

          2008 (4) SCALE 592       relied on        para 11
E         2004 (2) SCR 224         relied on        para 12
          (2004) 11 sec 399        relied on        para 13
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1576 of 2009.
F
        From the Judgment and Order dated 31.07.2008 of the
    High Court of Punjab and Haryana at Chandigarh in Criminal
    Appeal No. 543 SB of 1996.
G       Neeraj Kumar Jain, Sanjay Singh, Rajeev Singh for the
    Appellant.

        Vikas Sharma, Manjit Singh, Kamal Mohan Gupta for the
    Respondent.

H
        KASHMIR! LAL v. STATE OF HARYANA                    773


     The Judgment of the Court was delivered by                    A
     DIPAK MISRA, J. 1. This Appeal by Special Leave is
directed against the judgment of conviction and order of
sentence dated July 31, 2008 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No. 543-
                                                                    8
SB of 1996 whereby the learned Single Judge has given the
stamp of approval to the conviction and sentence recoded by
the learned Additional Sessions Judge, Kurukshetra in S.T. No.
15of1993 on 24.7.1996 whereby he, after finding the accused-
appellant guilty of the offence punishable under Section 18 of
the Narcotic Drugs & Psychotropic Substances Act, 1985 (for C
brevity 'the Act'), had sentenced him to undergo rigorous
imprisonment for a period of ten years and to pay a fine of .
Rs.1,00,000/- and, in default of payment of fine, to suffer further
rigorous imprisonment for a period of one year.
                                                                    D
     2. The factual matrix as has been undraped by the
prosecution is that on 23.12.1992 about 10.00 A.M., Kaptan
Singh, the Sub-Inspector, along with.other police officials, was
present near Deer Park, Pipli, in connection with excise
checking in a Tata Mobile Vehicle. Receiving a secret and E
reliable information to the effect that the accused-appellant
would come to the 'dhaba' situated on the G.T. Road, on his
scooter, carrying opium and if a picket was held, he could be
apprehended, he sent a V.T. message to the Additional
Superintendent of Police to reach the place. Thereafter, Kaptan F
Singh, along with other police officials, went to the T-point of
Jahajo Wali Road on G.T. Road and held a picket. In the
meanwhile, the accused was seen coming on his scooter,
bearing No. DLS-1756 and at that time Mohmad Akil,
Additional S.P., Kurukshetra, along with his staff arrived at the G
spot. He was apprised of the situation and, thereafter, on his
instructions search of the tool box of-the,scooter was conducted
and a polythene bag containing of 5% Kg. of opium was
recovered. Ten grams opium was separated as sample and the
remaining opium was put into a separate container. The sample H
    774      SUPREME COURT REPORTS                 [2013) 3 S.C.R.


A and the container, containing the remaining opium, were
  converted into parcels duly sealed with seals and taken into
  possession vide a separate recovery memo. The accused was
  arrested and a ruqa was sent to the police station on the basis
  whereof a formal FIR was registered. After completing the
B investigation the charge-sheet was submitted before the
  competent court.

        3. Before the trial court the accused abjured his guilt,
    pleaded false implication and claimed to be tried.

C       4. The prosecution to substantiate its case examined
  Banarsi Das, Head Constable, PW-1, Dharam Singh, ASI, PW-
  2, Mam Chand, Constable, PW-3, Ram Udit, Head Constable,
  PW-4, Akil Mohamad, S.P., PW-5 and Kaptan Singh and the
  Investigating Officer, PW-6. The accused in his statement under
D Section 313 of the Code of Criminal Procedure stated that he
  was employed in the 'dhaba', namely, Man Driver Dhaba at
  village Teora and he had been apprehended from the 'dhaba'
  and falsely implicated. llJ support of his defence, he examined
  Karan Singh, DW-1, who had recorded the statements of PW-
E 1 and PW-3.
        5. Before the learned trial Judge, it was contended that the
  prosecution had miserably failed to bring home the charge by
  resting its case solely on the version of official witnesses and
F not examining any independent witness despite the fact that the
  accused was apprehended and alleged contraband articles
  were seized while he was in a 'dhaba'; that there had been non-
  compliance of Section 50 of the Act inasmuch as he was not
  properly informed about his right to be searched in presence
  of a gazetted officer or a Magistrate; that the recovery from the
G tool box of the scooter would not amount to conscious
  possession of the contraband article by the accused; and that
  the non-production of the scooter in court falsified the version
  of the prosecution. The learned trial Judge dealt with all the
  aspects and came to hold that the search and seizure was
H valid; that the accused had not been falsely implicated; and that
            KASHMIR! LAL v. STATE OF 1-iARYANA                    775
                     [DIPAK MISRA, J.]
the non-production of the scooter did not in any manner affect            A
the case of the prosecution. Being of this view, he found the
accused guilty and sentenced him as has been st&ted
hereinbefore.

     6. Against the conviction and sentence the accused 8
preferred an appeal before the High Court. Apart from raising
the contentions which were raised before the learned trial
Judge, a further submission was put forth that as per the report
of the Forensic Science Laboratory morphine content contained
in the sample was found only to be 1.66% and as the morphine C
percentage in the bulk of the opium was required to be taken
into consideration, the alleged recovery of opium did not fall
within the ambit of non-commercial quantity and hence, the
sentence should have been imposed regard being had to the
non-commercial quantity and not commercial quantity. The High
Court concurred with the view expressed by the learned trial · D
Judge and proceeded to deal with the additional submission
and ultimately held that as the seizure had taken place on
23.12.1992, the amendment which has been brought into the
Act in the year 2001 would not be attracted. Be it noted, the
non-production of the scooter before the trial court was E
highlighted with immense vehemence but the learned Single
Judge repelled the said submission being devoid of any
substance and further directed confiscation of the scooter in
question as envisaged under the provisions contained in
Sections 60(3) and 63 of the Act. The aforesaid conclusions F
led to the dismissal of the appeal.

     7. Questioning the legal substantiality of the judgment of
conviction learned counsel for the appellant. has raised the
following contentions: -                                                  G

      (i)      It was incumbent on the part of the prosecution to
               examine the independent witnesses when the
               search and seizure had taken at a public place, i.e.,
               in a 'dhaba' and not to rely exclusively on the official
               witnesses to prove the case against the accused.           H
    776          SUPREME COURT REPORTS               [2013] 3 S.C.R.

A         (ii)     There has been non-compliance of Section 50 of
                   the Act as he had not been informed about his right
                   to be searched in presence of a gazetted officer or
                   a Magistrate and that vitiates the conviction.

          (iii)   The High Court has fallen into serious error by not
B
                  treating the seized opium failing within non-
                  commercial quantity despite the report of the
                  Forensic Science Laboratory that the morphine
                  content -contained in the sample was 1.66%.

c         (iv)    The non-production of the scooter creates an
                  incurable dent in the foundation of the case of the
                  prosecution and the said aspect having not been
                  appositely dealt with by the learned trial Judge as
                  we•! as by the High Court, the judgment of
D                 conviction and order of sentence are liable to be
                  set aside.

        8. Learned counsel for the State, resisting the aforesaid
    submissions, has advanced the following proponements: -
E         (a)     The non-examination of independent witnesses in ·
                  the case at hand does not affect the prosecution
                  case, for there is no absolute rule that the
                  prosecution cannot establish the charge against the
                  accused by placing reliance on the official
F                 witnesses.

          (b)     As the contraband goods have been seized from
                  the tool box of the scooter and not from the person
                  of the accused, Section 50 of the Act has no
G                 applicability.

          (c)     The morphine content in the seized opium, in the
                  case at hand, has no relevance to determine the
                  commercial or non-commercial quantity regard
                  being had to the fact that the occurrence had taken
H
         KASHMIR! LAL v. STATE OF HARYANA                     777
                  [DIPAK MISRA, J.]
             place in the year 1992 whereas the amendment            A
             was incorporated in the statute book in 2001.

       (d)   The non-production of the scooter in the court cannot
             be a ground for setting aside the conviction since
             all the witnesses have specifically mentioned about
                                                                     8
             the registration number of the scooter and there is
             no justification to discard their testimony.

      9. As far as first submission is concerned, it is evincible
from the evidence on record that the police officials had
requested the people present in the 'dhaba; to be witnesses,         C
but they declined to cooperate and, in fact, did not make
themselves available. That apart, there is no absolute command
of law that the police officers cannot be cited as witnesses and
their testimony should always be treated with suspicion.
Ordinarily, the public at large show their disinclination to come    D
forward to become witnesses. If the testimony of the police
officer is found to reliable and trustworthy, the court can
definitely act upon the same. If in the course of scrutinising the
evidence the court finds the evidence of the police officer as
unreliable and untrustworthy, the court may disbelieve him but       E
it should not do so solely on the presumption that a witness from
the department of police should be viewed with distrust. This
is also based on the principle of quality of the evidence weighs
over the quantity of evidence. These aspects have been
highlighted in State of U.P. v. Anil Singh 1, State, Govt. of NCT    F
of Delhi v. Sunil and Another2 and Ramjee Rai and Others v.
State of Bihaf3. Appreciating the evidence on record on the
unveil of the aforesaid principles, we do not perceive any
acceptable reason to discard the testimony of the official
witnesses which is otherwise reliable and absolutely trustworthy.    G

      10. The second plank of submission pertains to non-

1.   1988 supp sec 686.
2.   c2001) 1 sec 652.
3.   (2006) 13 sec 229.                                              H
    778       . SUPREME COURT REPORTS                  [2013] 3 S.C.R.

A compliance of Section 50 of the Act. There is no dispute over
  the fact that the seizure had taken place from the tool box of
  the scooter. There is ample evidence on record that the scooter
  belongs to the appellant. When a vehicle is searched and not
  the person of an accused, needless to emphasise, Section 50
B of the Act is not attracted. This has been so held in Ajmer Singh
  v. State of Haryana4, Madan Lal v. State of H.P. 5 and State of
  H.P. v. Pawan Kumar6. Thus, the aforesaid submission of the
  learned counsel for the appellant is without any substance.

       11. The third limb of submission pertains to determination
C of commercial and non-commercial quantity. The learned
  counsel for the appellant has commended us to the decision
  in E. Micheal Raj v. Intelligence Officer, Narcotic Control
  Bureau7• In the said case it has been held as follows: -

D         "12. As a consequence of the Amending Act, the sentence
          structure underwent a drastic change. The Amending Act
          for the first time introduced the concept of 'commercial
          quantity' in relation to narcotic drugs or psychotropic
          substances by adding clause (viia) in Section 2, which
E         defines this term as any quantity greater than a quantity
          specified by the Central Government by notification in the
          Official Gazette. Further, the term 'small quantity' is defined
          in Section 2, clause (xxiiia), as any quantity lesser than the
          quantity specified by the Central Government by notification
F         in the Official Gazette. Under the rationalized sentence
          structure, the punishment would vary depending upon
          whether the quantity of offending material is 'small quantity',
          'commercial quantity' or something in-between."
       After so stating, the two learned Judges proceeded to state
G that the intention of the legislature for introduction of the

    4.   c2010) 3 sec 746.
    5.   c2003) 1 sec 465.
    6.   c2005) 4 sec 350.
H 7.     2008 (4) SCALE 592.
          KASHMIR! LAL v. STATE OF HARYANA                     779
                   [DIPAK MISRA, J.]

amendment to punish the people \"Jho commit less serious               A
offence with less severe punishment and those who commit
great crimes, to impose more severe punishment. Be it noted,
in the said case, the narcotic drug which was found in
possession of the appellant as per the Analyst's report was 60
gms., which was more than 5 gms., i.e., small quantity, but less       B
than 250 gms., i.e., commercial quantity.

     12. In the case at hand, the High Court has opined that as
the opium was seized on 23.12.2992, the amendment brought
in the statute book would have no applicability. It is also wroth
noting that the appeal was preferred in the year 1996. In · C
Basheer Alias N.P. BasheE-r v. State of Kerafa 8 while dealing
with the constitutional validity of the proviso to sub-section (1)
of Section 41 of the Narcotic Drugs and Psychotropic
Substances (Amendment) Act, 2001 (Act 9 of 2001), this Court
upheld the constitutional validity of the said provision and D
opined thus: -
      "In the result, we are of the view that the proviso to Section
      41 (1) of the amending Act 9 of 2001 is constitutional and
      is not hit by Article 14. Consequently, in all cases, in which   E
      the trial had concluded and appeals were pending on
      2.10.2001, when amending Act 9 of 2001 came into force,
      the amendments introduced by the Amending Act 9 of
      2001 would not be applicable and they would have to be
      disposed of in accordance with the NDPS Act, 1985, as            F.
      it stood before 2.10.2001."
     13. Yet again in Nayak Ramesh Chandra Keshavlal v.
State of Gujara~ a contention was raised that when the quantity
seized is small one, as enumerated in notification bearing SO
No. 1055 (E) dated 19.10.2001, published in the Gazettee of            G
India (Extra), Part II, Section 3(ii) dated 19.10.2011, the
punishment should be less. The Court, while repe~ling the said
submission expressed as follows: -
a.   (2004) 3 sec 609.
9.   c2004J 11 sec 399.                                                H
    780      SUPREME COURT REPORTS                   [2013] 3 S.C.R.

A         "Proviso to Section 41 of the amending Act referred to
          above, lays down that the provisions of the amending Act
          shall not apply to cases pending in appeal, validity of which
          was challenged before this Court on the ground that the
          same, being discriminatory, was violative of Article 14 of
B         the Constitution. But this Court in the case of Basheer
          upheld the validity of the said provision and, consequently,
          the provisions of the Amendment Act shall have no
          application in the present case, as on the date of coming
          into force of the amending Act, the case of the appellant
c         was pending in appeal before the High Court."
       14. As in the case at hand, the appeal was pending in
  1996, the ameliorative provision brought by way of amendment
  in the year 2001 would not be applicable to the accused-
  appellant. Therefore, the submission advanced by the learned
D counsel for the appellant is devoid of any substratum and,
  accordingly, stands rejected.
        15. The last contention urged relates to the non-production
  of the scooter in the court. The learned counsel for the appellant
  has harped and hammered on this submission and we must
E say that the vehemence of the argument reflected in this regard
  is much ado about nothing. All the documents pertaining to the
  scooter were seized and the witnesses had stated in a
  categorical manner about the registration number of the scooter.
  From the material brought on record, it is crystal clear that the
F scooter belonged to the appellant and the search and seizure
  was made in the tool box of the scooter. Under these
  circumstances, it can safely be concluded that the submission
  that the scooter was not produced in the court is entirely devoid
  of merit and, in fact, it amounts to an effort which is like building
G a castle in Spain. Thus, we unhesitatingly repel .the aforesaid
  contention.
        16. Resultantly, the appeal, being devoid of merit, stands
    dismissed.
H R.P.                                            Appeal dismissed.