Holding

The High Court’s acquittal was set aside because Section 55 is directory, Section 50 does not apply, and there is no infirmity in the official witnesses' evidence, so the conviction stands.

Summary

The State of Punjab prosecuted Leela under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of poppy husk. The trial court convicted him, sentencing him to 11 years' rigorous imprisonment and a fine. On appeal, the Punjab & Haryana High Court acquitted Leela, holding that no independent witness was examined and that the seizure violated Sections 50 and 55 of the Act. The Supreme Court examined whether the lack of an independent witness, non‑compliance with Section 55 (sealing of seized articles), and the applicability of Section 50 (personal search) could invalidate the conviction. It held that the official witnesses' evidence showed no infirmity, Section 50 was inapplicable as there was no personal search, and Section 55 is directory; thus the High Court’s acquittal was unsustainable. The Supreme Court set aside the High Court judgment and restored the trial court’s conviction.

Issues considered

Whether the absence of an independent witness examination defeats a conviction under the NDPS Act.
Whether non‑compliance with Section 55 (sealing of seized articles) invalidates the conviction.
Whether Section 50 (personal search) applies to the search conducted in this case.
Whether the evidence of official witnesses suffers any infirmity that warrants overturning the conviction.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 15, s. 50, s. 55

Subjects

NDPS ActSection 15Section 50Section 55official witnessesindependent witnessseizuresealingconvictionacquittalappellate jurisdiction

Judgment

[2009] 8 S.C.R. 68

A STATE OF PUNJAB
v.
LEELA
(Criminal Appeal No. 463 of 2005)
APRIL 23, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

Narcotic Drugs and Psycotropic Substances Act, 1985:
c
s. 15, 50 and 55 - Conviction by trial court uls 15 -
Acquittal by High court for non examination of independent
witness and non compliance of provisions - Held: In the
instant case, there is no finding that evidence of official
witnesses suffers from any infirmity - Section 50 has no
0
application to the facts of the case - Provisions of s.55 are
directory - Besides, there is no reason indicated as to how
accused was prejudiced by Dy. S. P. putting his seal on seized
articles instead of S. H. 0. - Judgment of High Court set aside
and that of trial court restored.
E
The respondent-accused faced trial for commission
of the offence punishable uls 15 of the Narcotic Drugs
and Psychotropic Substances Act, 1985. The prosecution •
case was that the police got the information that the
F respondent and his companion were habitually selling
poppy husk. The police reached the specified place and
saw the respondent and his companion sitting on some
bags of poppy husk. During the trial the companion of
the respondent jumped bail and he was declared a
G proclaimed offender. The trial culminated in conviction of
the respondent. He was sentenced to 11 years R.1 and
to pay a fine of Rs.1,00,0001-. On appeal, the High Court
accepted the pleas of the accused that no independent
-
witness was examined and that there was non-
H 68
STATE OF PUNJAB v. LEELA 69
_j

compliance of s.55 of the Act. Accordingly he was A
_., acquitted. Aggrieved, the State filed the appeal.

Allowing the appeal, the Court

HELD: 1. As regards the evidence of official
witnesses, the elementary question is whether the B
evidence of official witness suffers from any infirmity. In
the instant case, there is no finding in that regard.
*·
Besides, s.50 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 has no application as there was no
personal search. [Para 13] [73-E-G] c

.. 2. So far as the plea of non-compliance with
provision of s.55 of the Act is concerned, the said
provisions are directory in nature. Besides, in the instant
case, seal on the seized article in question was put by the D
Deputy Superintendent of Police, who was higher in rank
than the SHO and there is no reason indicated as to how
the accused has been prejudiced. There is no doubt
about the authenticity of the official act and the High
Court ought not to have held that there was non- E
compliance of the provisions. [Para 13] [73-C-E]

3. In the circumstances, the acquittal of the
respondent is clearly unsustainable. The judg·ment of the
"
High Court is set aside and that of the trial court restored.
[Para 14] [74-A-B] F

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 463 of 2005.

From the Judgment & Order dated 03.12.2004 of the High
G
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
" No. 166-DB of 2002.

Ranbir Yadav (Kuldip Singh) for the Appellant.

H
70 SUPREME COURT REPORTS [2009] 8 S.C.R.
\..
A S. Janani and Deepak Goel for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of a Division bench of Punjab and Haryana
B High Court directing acquittal of the respondent who was
convicted by learned Special Judge Sh. lnderjit Kaushik,
Patiala, for offence punishable under Sec.15 of the Narcotic
Drugs and Psychotic Substances Act, 1985 (in short · NDPS
Act'). Allegation against the accused was that he was found to
c be in possession of poppy husk weighing a large quantity in
seven bags.

2. The prosecution version in a nut shell is as follows:

3. On February 20, 1999 Sub-Inspector Ajmer Singh
D (PW.5), along with other police officials, was on patrol duty in
police vehicle PB-11A-7849 driven by Sarmukh Singh. The
patrol party was present at the bridge on a drain about 20- kms.
South of Police Station, Sadar, Patiala. At 7 a.m. secret
information was received by Sub-Inspector Ajmer Singh that
E Leela and his co-accused Pritam Singh @ Billu (proclaimed
offender) were habitually selling poppy husk and in case a raid
was conducted they could both the apprehended red handed
from near the bridge over the drain in Bhanri. •

F 4. The Investigator proceeded to the spot and also
informed D.S.P. Kulshinder Singh (PW.1) on the wireless.
When the police officials reached the bridge on the drain, they
saw two persons sitting on bags, who on seeing them tried to
run away. The police officials stopped their vehicle, got down
G and over-powered Leela as well as Pritam Singh @ Billu. At
that time Joga Singh had also reached at the spot. The .
Investigator told the accused that he wished to search the bags
and that search could be conducted in the presence of a
Gazetted Officer or a Magistrate. The accused opted for search
before a Gazetted Officer. The Investigator recorded their
H
STATE OF PUNJAB v. LEELA 71
[DR. ARIJIT PASAYAT, J.]
consent statements and the accused put their signatures on the A
statements. In the meanwhile, D.S.P. Kulshinder Singh (PW.1)
~·
also reached the spot in a police Gypsy. In the presence of the
witnesses and the D.S.P., the Investigator checked the seven
bags which were lying on the ground and from each bag poppy
husk was recovered. The bags were numbered 1 to 7. Two B
samples of 250 grams each of the contraband article were
taken out from the bags and put in separate parcels. The
·~ remaining poppy husk was weighed and ea:::h was found to
have contained 34.5 kgs. of poppy husk. Fourteen sample
parcels and the seven bags of poppy husk were sealed. The c
. seal after use was handed over to Assistant Sub-Inspector
Mohinder Singh (PW.4). Since Leela and Pritam Singh @ Billu
;
had committed an offence punishable under Section 15 of the
NDPS Act report was sent to Police Station, Sadar, Patiala at
9.30 a.m. and on its basis formal F.l.R. was registered at the
D
Police Station at 10.40 a.m. on February 20, 1999. Report of
the case was received by Additional Chief Judicial Magistrate
at 5.35 p.m. on the same day.

5. In the meanwhile, the Investigator arrested the accused
and took into possession the case property. On the personal E
search of the accused some cash was recovered, Rs.65/- from
Leela and Rs.95/- from Pritam Singh @ Billu. Cash was also
taken into possession. The accused were informed of the
,.
,. grounds of their arrest vide memo signed by Assistant Sub-
Inspector Mohinder Singh (PW.4) and Joga Singh. Site plan F
of the place of the occurrence was prepared.

6. On return to the police station, case property and the
accused were produced before S.H.O. Gurchain Singh (PW.6)
who verified the facts and directed the Investigator to deposit
G
the case property with the M.H.C .
•
7. On the following day the accused as well as the case
property were produced before the Area Magistrate. The
sample of the recovered contraband was examined by the
~ Chemical Examiner who reported that the sample was of poppy H
~·
72 SUPREME COURT REPORTS [2009] 8 S.C.R.

A husk. After completion of the investigation the accused were
sent up for trial. At some stage Pritam Singh was released on
bail and he jumped bail. The record is unclear regarding the
date of his release and the order on the basis of which he was
released. Be that as it may, efforts were made to procure
B Pritam Singh's presence by the Court but without success.
Consequently, Pritam Singh @ Billu was declared a proclaimed
offender by the learned Special Judge on September 1, 2001.

8. Charges were framed against Leela on September 6,
2001 to which he pleaded not guilty and claimed to be tried.
c
9. Prosecution examined the DSP-Kulshinder Singh
(PW.1), C. Faquir Chand (PW-2), MHC Sahib Singh (PW.3),
ASl-Mohinder Singh (PW.4) and Sl-Ajmer Singh (PW.5) and
Gurchain Singh (PW.6), SHO, Patiala police station. The
D accused denied various items of prosecution evidence which
appeared against them and pleaded false implication.

10. The accused examined AS.I. Devinder Singh (DW.1),
Joga Singh (DW.2). The trial Court came to the conclusion that
E the accused was believed to be in possession of seven bags
of contraband therefore he was convicted and sentenced to
undergo 11 years R.I. and to pay a fine of Rs.1,00,000. In
appeal two stands were basically taken. First was that there
was no independent witness examined and secondly there was
violation of the provisions of Sec.50. It was found that two bags
F were torn and so far as the other five bags are concerned the
seals were smudged. The High Court accepted the stand of
the accused and directed acquittal.

11. In support of the appeal, learned counsel submitted that
G the fact that no independent witness was examined on account
of that one Joga Singh who was called to be a witness of the
recovery was non-available and was not examined. There is no
legal bar on conviction being recorded solely on the evidence
of the witnesses. Additionally, the seized articles in questions
H were put by the Deputy Superintendent of Police (PW 1) who
STATE OF PUNJAB v. LEELA 73
[DR. ARIJIT PASAYAT, J.]
..;
was higher in rank to the officer who was the SHO at the relevant A
point of time. In any event as noted in the High Court's judgment
..
the SHO was one Gurchain Singh who is stated in the High
Court judgment as DSP. It is to be noted that there is perverse
for which seals of two officers is required to be given under
· Sec.55. The investigator has ensured that there is more than B
transparency in the action taken and there is no apprehension
or any imperfect procedure being adopted .
....
12. Learned counsel for the respondent on the other hand
submitted that there has been clear violation of Sec.55 of the
Act and no serious effort was made to involve any independent
c
witness and on the other hand Joga Singh who was made a
member of the party did not support the prosecution version.

13. It is not in dispute that provision of Sec. 55 are directory
l- in nature. In the instant case, the DSP who was examined as D
PW.1 is an officer and was higher in rank or of the same rank
as the SHO in the instant case. There is no reason indicated
as to how the accused has been prejudiced by PW.1 putting
his seal instead of the SHO. The provisions are directory and
as there is no doubt about the authenticity of the official act, E
the High Court ought not to have held that there was non-
compliance of requirement of Sec. 50. Coming to the plea as
confined to the conclusion that official witnesses were examined
~
in the Court the conviction could not be maintained. Firstly
Sec.50 of the Act has no application as there was a personal F
search. The issue has been examined in several cases and it
has been held that clearly shows that the official witnesses have
been examined. It is not sufficient to doubt the evidence of the
official witnesses. The elementary question is whether the
evidence of official witness suffers from any infirmity. In the
G
J instant case there is no finding in that regard. Coming to the
~
plea of the respondent accused that the seals were found
smudged, it is to be noted that the ttial Court has noticed this
aspect and held that they were produced before the Court after
one year and by the time of production there is likelihood the
H
74 SUPREME COURT REPORTS [2009) 8 S.C.R.

A seal getting protection or get smudged.

14. Above being the position, the acquittal of the
respondent by the High Court is clearly unsustainable. The
judgment of the High Court is set aside and that of the trial court
8 is restored. The respondent shall surrender to custody to serve
out the remainder of sentence.

15. The appeal is disposed of.

R.P. Appeal disposed of.