STATE OF HARYANAversusVIDHYA DHAR

                            STATE OF HARYANA                                         A
                                        v.
                                VIDHYA DHAR

                               MARCH I, 2002

               [R.P. SETHI AND K.G. BALAKRJSHNAN, JJ.]                               B


      Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 18
and 50-Procedural illegality in investigation-Recovery of opium from
accused-Accused given opportunity to effect the search in presence of Gazetted       C
Officer or Magistrate which was declined-Inspector took sample from opium
and affixed his seal-Sub Inspector collected the sample-Station House Officer
on verification offacts also affixed his own seal on the sample-Samples sent
for chemical analysis and on basis of report charge sheet filed-Accused
alleged tampering with the seal-Deposition .of Sub-Inspector and Station
House Officer-No cross-examination regarding tampering with seal-Trial               D
Court convicted the accused-High Court set aside the conviction---On appeal,
held evidence adduced by the prosecution showed no tampering with the
seal-Hence no procedural illegality in the investigation-Acquittal set aside-
Conviction by Trial Court restored

        On suspicion, sui.:Inspector alo.ng.with some'police personnel conducted     E
. search of the respondent-accused and recovered about 2.250 kgs. of opium.
  Respondent~accused was told that if he desired, the search could be effected
  in the presence of a Gazet_ted Office~ or a Magistrate. However, he declined.
  Inspector took sample of opium and sealed with his seal Sub-Inspector tken
  collected the sample of the opium. After that respondent-accused alongwith         F
  these two packets was produced before the Station House Officer, who verified
  the facts from respondent-accused and witnesses and checked· the case
  property and the sample. He affixed his own seal on both the packets
  containing sample and the residue. Thereafter sample of opium was sent for
  chemical analysis and on the basis of the report, charge-sheet was tiled against
  the respondent-accused. Trial Court rejected the contention of the respondent-     G
  accused that there was tampering with the seal affixed on the packet
  containing the sample and held him guilty. However, High Court, on the basis
. of the evidence adduced by the prosecution, acquitted the respondent-accused
   holding that there was tampering of the seal and the respondent-accused was
  entitled to benefit of doubt. Hence the present appeal.                            H
                                       151
    152                     SUPREME COURT REPORTS                   [2002] 2 S.C.R.

A        Appellant-State contended that there was no tampering with the seal
    placed on the packet of opium sample collected and the evidence of the
    prosecution is very clear.

          Allowing the appeal, the Court

B          HELD : 1.1. On perusal of the evidence of prosecution witnesses, no
    defect can be perceived and it clearly shows that seal put on sample packet
    was found intact since Sub-Inspector did not say that the packet of the sample
    was opened and fresh seal was put thereon. Further, in the cross-examination
    of Station House Officer by the respondent's Counsel it was not suggested to
    him whether the seal put up by the Sub-Inspector was found tampered or
C   not. In fact there was no cross-examination regarding the tampering of the
    seal. All that he deposed was that he checked and verified the facts and then
    affixed his seal on the sample as well as on the rest of the opium recovered
    from the respondent-accused. [155-B; 154-F-H; 155-A-B]

D          1.2. The prosecution successfully proved that 2 kilograms and 250 grams
    of opium was recovered from the respondent-accused and, therefore, there
    was no procedural illegality in the investigation. The finding of the High Court
    that there was tampering with the seal put by the investigating officer, and
    so the respondent was not entitled to get benefit thereof was without any basis
    since High Court did not appreciate !he evidence adduced by the prosecution
E   in the correct perspective. (155-C-D; 155-B-C]

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    1893 of 1996.

          From the Judgment and Order dated 17.4.96 of the Punjab and Haryana
F High Court in Crl. A.P. No. 366-SB/95.
        J.P. Dhanda, Dhon Singh Nagar, K.P. Singh and Ms. Raj Rani Dhanda,
    Advocates for the Appellant.

          Vishal Malik and Mr. R.C. Kohli for the Respondent.
G
          The Judgment of the Court was delivered by

         K.G. BALAKRISHNAN, J. This appeal is preferred by the State of
    Haryana challenging the judgment ,and order passed by the learned S~ngle
    Judge of the High Court of Punjab and Haryana reversing conviction of the
H   respondent, Vidhya Dhar, under Section 18 of the Narcotic Drugs and
            STATEv. VIDHAYADHAR[K.G.BALAKRISHNAN,J.]                      153

Psychotropic Substances Act, 1985. The respondent was sentenced to undergo        A
rigorous imprisonment for a period of ten years and to pay a fine of Rs.
1,00,000 and in default thereof to undergo rigorous imprisonment for a period
of one year. The facts of the case, in brief, are thus.

       On 4.12.1992, Sub Inspector Ram Chander, along with some police
personnel was proceeding in a vehicle towards village Sangwan. When they          B
reached the bus stand, they saw the respondent coming from the village side
to the bus station. On seeing the police party, the respondent tried to escape.
This aroused suspicion in the mind of Sub Inspector Ram Chander. The
police party intercepted the respondent and tried to conduct a· search on his
person. The respondent was told that ifhe desired, the search could be effected   C
in the presence of a Gazetted Officer or a Magistrate. The respondent, however,
declined to have the search conducted either in the presence of a Gazetted
Officer or Magistrate. This was recorded in the form of a statement, which
was marked in the proceedings as Ex. PG. On conducting search of the
respondent, a tin was recovered from the bag belonging to the respondent. It
was found to contain about 2 kilogram and 250 grams opium. A sample was           D
taken from the opium and sealed. Both the packets containing opium and its
sample were taken into possession after preparing a recovery note.

      The respondent along with these two packets was produced before the
Officer Incharge of Police Station, Tosham. The Officer Incharge verified the
facts and affixed his own seal 'RKB' on both the packets containing sample        E
and the rest of opium. The articles were deposited in the 'Malkhana'.
Thereafter, the sample of the opium was sent for chemical analysis and on
receipt of the report, the charge sheet was filed against the respondent.

      The respondent pleaded not guilty. In support of prosecution case, five
witnesses were examined. The respondent pleaded that he was falsely               F
implicated. The Addi. Sessions Judge, after consideration of the evidence,
found the respondent guilty of the offence charged against him. The Sessions
Court found that there was no violation of the provisions contained in Section
50 of the Narcotic Drugs & Psychotropic Substances Act and that the
prosecution had proved recovery of 2 kilograms and 250 grams of opium             G
from the possession of the respondent. The respondent had contended before
the learned Sessions Judge that there was tampering with the seal affixed on
the packet containing the sample. But that plea was rejected.

     Aggrieved by the findings of the Sessions Judge, the respondent filed
an appeal and the learned Single Judge acquitted the respondent on the sole       H
    154                     SUPREME COURT REPORTS                     (2002) 2 S.C.R.

A gtound that there appeared to be some tampering with the seals affixed on the
    packet containing the sample. The learned Single Judge stated in the impugned
    judgment that PW-5, Inspector Amar Singh took sample and he put his seal
    'AS' and entrusted the same to the Station House Officer and the Station
    House Officer put his seal 'RKB'. The learned Single Judge observed that
    Sub Inspector Ram Chander had deposed that he had verified and affixed his
B   seal. The learned Single Judge was, therefore, of the opinion that if verification
    was done, PW- I must have opened the packet and thereafter he must have
    put his seal 'RKB' and in that case the original seal 'AS' should not have
    been there on the packet. On this premise it was held that the chances of
    tampering could not be ruled out and the respondent accused was entitled to
C   the benefit of doubt. This finding of the learned Single Judge is challenged
    before us.

           We have heard Shri J.P. Dhanda, learned counsel for the appellant-
    State and Shri Vishal Malik, learned counsel for the respondent. It was
    submitted by learned counsel for the State of Haryana that there was no
D tampering with the seal placed on the packet of opium sample collected and
    the evidence of the prosecution is very clear on this aspect. We ~ave perused
    the evidence adduced in this case. PW-4 Sub Inspector, Ram Chander, had
    collected the sample of the opium recovered from the respondent. PW-4
    qeposed: "The sample and the residue were sealed with the seal of AS. The
E seal after use was handed over to Sadan Singh and the sample and the case:
    property were taken into possession vide memo Ex. PH attested by me and
  . PW·Badan Singh. Case property is Ex.Pl and the sample is Ex. P2 and the
    'thelais' Ex. P3. After that, the police party along with .the accused and. the
    case property went to the SHO, PS Tosham, who had verified the facts from
    the accused as well as from the witnesses and checked the cas_e property and ·
F the sample. He affixed his own seal of "RKB" on the sample and the
    residue."PW-4 did not say that the packet of the sample was opened and
    fresh 'AS' seal put thereon.

          Sub Inspector Rameshwar K1.1mar, who was also the Station House
G Officer, was examined as PW- I. He deposed : "I had verified the facts from
    SJ Amar Singh, witnesses and the accused. Case property was found sealed
    with the seal of AS and the same seal was found on the sample. After
    verification of the case property and sam'ple I also affixed my seal of"RKB"
    on the residue as well as the sample." PW-I was cross-examined by the_
    counsel for the respondent. It was not suggested to him whether the seal put
H   by the Sub Inspector P..am Chander, was found tampered or not. In fact, there
           STATEv. VIDHAYADHAR[K.G.BALAKRISHNAN,J.]                        155

was no cross examination regarding the tampering of the seal. All that he A
deposed was that he checked and verified the facts and then affixed his seal
on the sample as well as on the rest of the opium recovered from the
respondent.

      On a perusal of the evidence of PW- I and PW-4, we are unable to
perceive any defect therein and it clearly shows that t~e seal put on the          B
sample packet was found intact. The learned Single Judge did not appreciate
the evidence adduced by the prosecut:on in the correct perspective.

      The prosecution, in our opinion, successfully proved that 2 kilograms
and 250 grams opium was recovered from the respondent and there was no
procedural illegality in the investigation. The finding of the learned Single      C
Judge that there was tampering with the seal put by the Investigating Officer
was without any basis and the respondent was not entitled to get benefit
thereof. As there was clear misreading of evidence, we are constrained to
reverse the finding of acquittal. We, therefore, set aside the impugned judgment
of the learned Single Judge, allow this appeal and affirm the conviction and       D
sentence of the respondent as recorded by the Addi. Sessions Judge, Bhiwani.

N.J.                                                          Appeal allowed.