Holding

The Supreme Court held that the appeal lacks merit and the acquittal of the respondents stands.

Summary

The police, during a nakabandi operation, apprehended a driver who disclosed that three others had fled. A search of the seized vehicle yielded heroin and opium, leading to a raid on the house of the alleged fugitives where narcotics were found in a box under a bed occupied by three women. The women were convicted under Sections 18 and 20 of the NDPS Act, but the High Court acquitted them, noting procedural defects. The State appealed to the Supreme Court under Article 136, arguing the convictions were valid. The Supreme Court dismissed the appeal, holding that the prosecution case suffered from multiple infirmities, including the illegal male‑conducted personal search of the women, lack of independent witnesses, and improper reliance on an unwritten statement, and therefore upheld the acquittal.

Issues considered

Whether the convictions under Sections 18 and 20 of the NDPS Act can be sustained in view of procedural violations and evidentiary deficiencies.
Whether a personal search of female accused by a male police officer violates sub‑section 4 of Section 50 of the NDPS Act.
Whether the absence of independent witnesses and the non‑recording of the driver’s statement affect the admissibility of evidence under Section 27 of the Evidence Act.
Whether the Supreme Court can interfere with the High Court’s acquittal under Article 136 of the Constitution.

Legislation cited

Indian Evidence Act, 1872s. 27
Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 20, s. 42(2), s. 50(4)

Subjects

NDPS Actpersonal searchgender requirementprocedural lapseacquittalArticle 136evidenceindependent witnessnakabandinarcotics seizure

Judgment

(2009] 3 S.C.R. 1195

:.. STATE OF PUNJAB A
v.
GURNAM KAUR AND ORS.
(Criminal Appeal No. 939 of 2007)

MARCH 6, 2009
B
[S.8. SINHA, DR. MUKUNDAKAM SHARMA AND H.L.
DATTU, JJ.)

Narcotic Drugs and Psychotropic Substances Act, 1985
- ss. 18, 20 and 50 (4) - Police officials staged nakabandi - c
Driver of car apprehended - On search recovery of
contraband articles - Driver's case that three persons fled
away- On basis of statement of driver, raid in house of said
persons - Recovery of contraband articles from the box under
the bed on which ladies of the house found sitting - D
Conviction of ladies u!ss. 18 and 20 - Set aside by High court
- Interference with - Held: Not called for - Prosecution case
suffered from several infirmities - Independent witness was
not examined - Personal search of ladies was conducted by
male police officer which was violative of sub section (4) of s. E
50.

,\ During nakabandi, the police officials of village K
apprehended GS- driver of the car. He alleged that PS, AS
and HS were also there who fled away. The car was
searched and narcotics were recovered. FIR was lodged. F
On basis of statement of GS, police officials raided the
house of PS and HS in village T and recovered large
quantity of contraband articles from the box beneath the
bed where respondent-ladies of the house were sitting
Another FIR was lodged. PS was arrested. Respondents G
were convicted and sentenced ulss. 18 and 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
However, High Court set aside the order. Hence the
present appeal.
1195 H
1196 SUPREME COURT REPORTS (2009] 3 S.C.R.

A Dismissing the appeal, the court

HELD: 1.1 Having been taken through the judgment
of the High Court as also other materials on record, it is
not a fit case where discretionary jurisdiction under
Article 136 of the Constitution of India should be
8
exercised in interfering with the impugned judgment.
[Pal'.a 12] [1201-B]

1.2. There are several infirmities in the prosecution
case. Subject to just exceptions all offences are local. A
C statement in regard to the possibility of contraband
articles likely to be found at the residence of PS was
disclosed by GS. His statement was not recorded in
writing. Admittedly, PS was also arrested and in that view
of the matter as to why they were not taken to their village
D is beyond any comprehension. The place of occurrence
of the first incident and the incident in question are
situated at distance of 80 kms. whereas GS was arrested
at about 7:30 p.m. on 16-06-2000. The second first
information report was lodged at 4.00 p.m. and it was
E recorded as 5.15 p.m. [Para 13] [1201-C, D, E]

1.3. Respondent GK is an old lady. Respondent Nos.2
and 3 are her daughters-in-law. Curiously all of them were ,,
found sitting on the same bed beneath whereto the
F cQntraband had allegedly been kept. That by itself does
not establish that all of them were in conscious
possession of the narcotics. They were not even asked
any question in regard thereto. Prior to lodging of the first
information report, the respondents did not point out the
place where the narcotics were found kept. How the
G raiding party found the same has not been disclosed. The
ladies in natural course were in their house. No
explanation has been furnished, nor the statement of the
respondent was recorded. The investigating officer-CSP
PW3 was to prove as to where contraband had been kept
H not the respondents. [Para 14] [1201-F, G, HJ
STATE OF PUNJAB v. GURNAM KAUR AND ORS. · 1197 · -

• 1.4. If by a reason of statements made by an accused A
some facts have been discovered, the same would be
admissible against the person who had made the
statement in terms of section 27 of the Evidence Act.
Prosecution did not examine any independent witness.
Why independent witnesses could not be found was not B
explained. [Para 15] [1202-A]

1.5. ASl-RK who is said to have been present was not
examined. As regard who conducted the personal search
of the ladies, it is not the case of the prosecution that she
had searched the ladies. Sub-section 4 of section 50 of C
the Narcotic Drugs and Psychotropic Substances Act,
1985 postulates that personal search of the ladies must
be conducted by a lady police officer. Curiously PW8 in
his evidence categorically stated that there was no lady
constable or lady officer posted at the police station, H. D
If that be so why participation by ASl-RK was introduced
is beyond anybody's comprehension. Personal search of
the accused was conducted by DSP-PW3which was
violative of the provisions of sub-section 4 of section 50
of the Act. [Para 16] [1202-C, DJ E

1.6. It is surprising that PWS-DSP was not informed
Y. by DSP PW3, was present in the village. His presence in
the village is highly doubtful. No explanation has been
furnished as to why the first information report was
F
lodged after 11 hours and why the mandatory provisions
of subsection 2 of section 42 of the Act were not complied
with. [Para 17) [1202-E]

1.7. The jurisdiction of this Court to interfere with a
judgment of acquittal is limited. When two views are G
possible, a judgment of acquittal sho.uld not be interfered
with. [Para 18) [1202-G]

Rangaiah v. State of Karnataka 2008 (16) SCALE 1,
referred to. H ·
1198 SUPREME COURT REPORTS (2009] 3 S.C.R.

A Case Law Reference:
2008 (16) SCALE 1 Referred to. Para 18

CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 939 of 2007.
8
From the Judgment and Order dated 17.7.2006 of the High
Oourt of Punjab and Haryana in Criminal Appeal No. 157-08
of 04.
Kuldeep Singh for the Appellant.
c
Gagandeep Sharma, Nikhil Jain, Urned Singh Walia and
0, Mahesh Babu for the Respondent.

The Judgment of the Court was delivered by

D S.B. SINHA, J. 1. State of Punjab is in appeal before us
aggrieved by and dissatisfied with a Judgment and Order of
acquittal dated 17th July, 2006 passed by the High Court of
Punjab & Haryana in Criminal Appeal No. 157-08 of 2004.

E 2. Respondents herein are three ladies, viz., Gurnam Kaur,
Ranjit Kaur and Gurjit Kaur. Gurnam Kaur is wife of Pargat
Singh. Paramjit Singh @ Pamma, Amolak Singh and Hira
Singh are sons of Pargat Singh. Respondent Nos. 2 & 3,
namely, Ranjit Kaur and Gurjit Kaur are wives of Hira Singh and
F P<11ramjit Singh respectively.

3. On or about 16-06-2000 one Shri S.S. Mand, DSP (0),
Kapurthala purported to have received a secret information. He,
pursuant to the direction of SSP, Kapurthala, was standing at
the turning of Ohilwan Road, Ohussi Bundh in connection with
G a 'nakabandi' arranged on the basis of the said secret
information. Inspector Gurmukh Singh, SI Nirmal Singh, ASI
Jaswinder Pal Singh, ASI Paramjit Singh, Head Constable
Manohar Singh, Head Constable Surinder Kumar, Head
Constable Gurmail Singh, Head Constable Swaran Singh,
H Constable Harjit Singh, Constable Malkiat Singh, Constable Raj
STATE OF PUNJAB v. GURNAM KAUR AND ORS. 1199
[S.B. SINHA, J.]
"' Kumar, Constable Swaran Singh, Constable Surinder Pal A
;,
Singh, Constable Lakhwinder Singh, Constable Baljinder Singh
were with him. One U.P. Bhatt, Intelligence Officer of Narcotics
Control Bureau (NCB) was also present.

4. At about 7:30 a.m., one Maruti Car bearing registration
B
No.HR03A-2642 was found coming from the side of Amritsar
town. Allegedly on seeing the police party, the driver of the car
stopped the vehicle at a distance of about 50 yards from them
and made an attempt to turn the car backwards. Three persons
came out of the car and ran towards the fields. The driver of
the car was, however, apprehended. He disclosed his name
c
as Gurlal Singh @ Lalli. He was taken in custody. He alleged
that other three persons who had fled away were Paramjit
Singh @ Pamma, Amolak Singh and Hira Singh.

5. He was allegedly asked as to whether he would like to D
get his car searched by a Gazetted Officer or a Magistrate, he
expressed no objection to the searched by the officer himself.
On search narcotics were recovered from the said car.

Five packets of heroin marked '333' were recovered from
E
a gunny bag. Each packet weighed one kg. Samples therefrom
,.' were taken. Some narcotics were also found in the car, total
being 55 Kgs. of heroin and 22 Kgs. of opium.

A First Information Report was lodged. Gurlal Singh
allegedly made a statement that if the houses of Hira Singh and · F
Pargat Singh are raided, a large quantity of contraband would
be recovered. Pursuant thereto a raid was arranged. DSP
Baldev Singh, PW3 and other police officials went to village
Thatha. They met DSP Ashutosh, PW8, of Amritsar district in
the said village itself. G

6. All the respondents were said to have been found sitting
in one of the rooms of the said house. From the box which was
in the back of the bed in the room where respondents were
sitting, opium wrapped in a glazed paper and two packets of
H
1200 SUPREME COURT REPORTS [2009] 3 S.C.R.

A heroin were recovered. Sample thereof was said to have been
taken.

7. A First Information Report was lodged at about 5:15
p.m. on 16-06-2000. Indisputably, Parmajit Singh by that time
8 was already arrested and in the custody of the investigating
officer.

No independent witness was examined by the
•
prosecution.

C Respondents herein were prosecuted for commission of
offence under the said Narcotic Drugs and Psychotropic
Substances Act (for short, 'the Act').

8. The learned Trial Judge found the respondents guilty of
commission of an Offence under Sections 18 and 20 of the Act
0
and convicted them to undergo rigorous imprisonment for a
period of twelve years and fine of Rs.1,00,000/- (Rupees One
Lakh only).

9. By reason of the impugned judgment, the High Court on
E appeal, however, reversed the said findings. The High Court
found that no independent witness was examined. Village
Thatha is situated in the district of Amritsar. The raid was
conducted by the police officers of another district, viz.,
Kapurthala. Admittedly, PW8 DSP Ashutosh had not been
F informed about the raid. He was in the said village accidentally.

10. The ladies were personally searched by the male
officers in violation of sub-section 4 of Section 50 of the Act.

Prosecution deliberately introduced ASI Rajwinder Kaur,
G Police Station Harike. Although according to DSP Ashutosh
PW8, there was no lady police officer posted in the police
station.

11. The police officers had to travel for more than eight
H hours over a distance of not less than 80 kms. and thus there
STATE OF PUNJAB v. GURNAM KAUR AND ORS. 1201
[S.B. SINHA, J.)

"' was no reason as to why DSP Baldev Singh PW3 could not A
have sent an information to the officers of the police station,
Thatha or police station, Harike for registering of a case as per
information provided to him by Gurlal Singh @ Lalli.

12. Having been taken through the judgment of the High B
Court as also other materials on record, we are of the view that
it is not a fit case where we should exercise our discretionary
jurisdiction under Article 136 of the Constitution of India in
interfering with the impugned judgment.

13. There are several infirmities in the prosecution case. c
Subject to just exceptions all offences are local. A statement in
regard to the possibility of contraband articles likely to be found
·. at the residence of Pargat Singh was disclosed by Gurlal Singh.
'
His statement was not recorded in writing. Admittedly, Pargat
1 Singh has also been arrested and in that view of the matter as D
to why they were not taken to their village is beyond any
comprehension. The place of occurrence of the first incidence
and the incident in question are situated at distance of 80 kms.
_ __.. whereas Gurlal Singh was arrested at about 7:30 p.m. on 16-
06-2000. The second first information report was lodged at 4.00 E
p.m. and it was recorded as 5.15 p.m .
• <#
,;
14. Respondent Gurnam Kaur admittedly is an old lady.
Respondent Nos.2 and 3 are her daughters-in-law. Curiously all
of them were found sitting on the same bed beneath whereto
F
.' the contraband had allegedly been kept. That by itself does not
establish that all of them were in conscious possession of the
narcotics. They were not even asked any question in regard
thereto. Prior to lodging of the first information report, the
respondents did not point out the place where the narcotics were

- found kept. How the raiding party found the same has not been G
disclosed. The ladies in natural course were in their house. No
explanation has been furnished, nor the statement of the
respondent was recorded. The investigating officer DSP Baldev
Singh PW3 was to prove as to where contraband had been kept
not the respondents. H
1202 SUPREME COURT REPORTS [2009] 3 S. C.R.

A 15. If by a reason of statements made by an accused some
facts have been discovered, the same would be admissible
ag~inst the person who had made the statement in terms of
-
section 27 of the Indian Evidence Act. Prosecution has not
examined any independent witness. Why independent
B witnesses could not be found has not been explained.
16. ASI Rajinder Kaur who is said to have been present
has not been examined. Who conducted the personal search
of the ladies? It is not the case of the prosecution that she had
searched the ladies. Sub-section 4 of Section 50 of the Act
C postulates that personal search of the ladies must be conducted
by a lady police officer. Curiously PW8 in his evidence
categorically stated that there was no lady constable or lady
officer posted at the police station, Harike. If that be so why
participation by ASI Rajinder Kaur was introduced is beyond
D anybody's comprehension. Personal search of the accused was
conducted by DSP Baldev Singh which as indicated
hereinbefore was violative of the provisions of Sub-section 4
of Section 50 of the Act.
E 17. It is a matter of great surprise that PW8 DSP Ashutosh,
although was not informed by DSP Baldev Singh PW3, was
present in the village. His presence in the village is highly
doubtful. No explanation has been furnished as to why the first •
information report was lodged after 11 hours and why the
mandatory provisions of subsection 2 of Section 42 of the Act
F had not been complied with.
18. The jurisdiction of this court to interfere with a judgment
of Cilcquittal is limited. When two views are possible, a judgment
of acquittal should not be interfered with. {See Rangaiah v.
G State of Karnataka (2008 (16) SCALE 1]}.
19. For the reasons aforementioned we are of the opinion
that no case has been made out for interference with the
impugned judgment. The appeal is dismissed.

H N.J . Appeal dismissed.

•