Facts
The case of the prosecution is that, on 12-9-1996, Devi Lal, Darbara Singh along with other police officials were going to Waryam Khera from Dalbir Khera in a private jeep, on a patrol duty, when they reached near the bridge, the appellant-accused was seen coming from the opposite direction carrying a bag in his hand. After seeing the police party, the appellant-accused turned in another direction but was apprehended on suspicion. In the presence of ASP Abohar, the search of the bag was conducted while keeping the provisions of the law in accordance. This led to recovery of 1kg 750 g of opium. 2 samples of 10g were separated and sealed for taking into possession. Thereafter, FIR was registered, and the accused was arrested. On appearance in the court, a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was framed against him to which he pleaded not guilty and claimed the trial.
4 witnesses were examined, upon closure of all the evidence, the statement of the accused was recorded under Section 313 CrPC was recorded, and it was informed to him that all the incriminating circumstances appeared against him. He pleaded false implication but did not have any evidence to prove his contention. Ultimately, he was accused of possession of 1kg 750g of opium and was sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 100,000 defaults in payment would lead to rigorous imprisonment of 1 year. Aggrieved by this judgment, the appellant filed a criminal appeal (No.706-SB of 1999) to the High Court of Punjab and Haryana at Chandigarh. The judgment of 2008 dismissed the appeal and confirmed the judgment and order of sentence dated 20.05.1999, passed by the Special Judge, Ferozepur.
Issues Raised
- The issue raised in the above case was whether the evidence presented was enough for the conviction of Surinder Kumar under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 as only the official witnesses were considered and other witnesses like ASP and independent witnesses were not questioned?
- Whether the chain of custody of the seized opium kept intact and reliable?
- Was there a violation of Sec 50 of the NDPS Act?
Contention
Appellant’s Contention:
- The appellant contented that the chain of custody was not maintained as it was broken by ASI Joginder Singh, who carried the samples which raised doubts about the authenticity of the evidence.
- They contested that there was a violation of Sec 50 of the NDPS Act as the investigation was not properly witnessed and the accused was not informed about his right to be searched in front of a Magistrate.
- They also contented that important witnesses were not questioned and only the official witnesses were questioned. Critical witnesses like ASP Asthana, Joginder Singh, Independent were not questioned.
Prosecution’s Contention:
- Despite Joginder Singh not being present, the chain of custody of the seized opium was intact which was proved by the reports confirming that the bags were sealed.
- A reasonable effort was made to question the independent witnesses.
- There was no violation of sec 50 NDPS Act as search was conducted in his presence and seizure was done in front of ASP Asthana.
- According to the prosecution, the guilt was proven beyond reasonable doubt and the appeal was to be dismissed.
Rationale
The rationale was based on the fact that the chain of custody was not broken and put in jeopardy, which is proved by the reports of the chemical examiner proving that the bags were sealed, and chain of custody was not compromised. The official witnesses were enough, and their testimonies were credible and reliable; non-examination of the independent witnesses hence was not fatal as official witnesses were trustworthy and truthful. It was also held that the search and seizure was indeed done in front of ASP Asthana who was a gazette officer which removes the question of violation of Sec 50 of NDPS Act. Non-examination of ASP was not fatal as testimonies of other officers were consistent and detailed and served the purpose. The guilt was beyond reasonable doubt proven by the prosecution and to prove innocence, it was on the appellant which they failed to do so.
Defects of the Law
There is over-reliance on the official witnesses as other witnesses were not questioned properly, this could easily lead to the misuse of power and authority which is an inherent issue in the criminal domain. The procedural requirements of the NDPS Act can create practical problems like following the chain of custody without any discrepancies in between, moreover non-examination of ASI or ASP can create grounds for defense. Even at the time of seizure of evidence, there should be a proper mechanism which could maintain the authenticity of the whole process and be used as proof regarding any loophole that can be created in the procedure. There should be technological advancements while collecting evidence, this will prevent miscarriage of justice and prevent delay in justice by creating a more reliable platform to verify procedures. In the judgement it is stated that official testimonies can be treated as sufficient evidence if independent witnesses weren’t present but here despite independent witnesses being present, their testimonies were not taken which shows the poor working of the judicial system.
Inference
Finally, the Supreme Court dismissed the appeal and upheld the conviction of Surinder Kumar, reaffirming the imprisonment of 10 years and the fine of Rs. 100,000 and an additional 1 year upon default in payment of fine awarded by the High Court. The court also stated that minor lapses do not affect the root of the case and should not be made a ground for acquittal of heinous crimes under the NDPS Act, but enforcement of procedural safeguards is crucial and should be carried out cautiously. The judgement also sets a precedent making credible official testimonies, proper documentation, scientific evidence like chemical reports sufficient grounds for conviction when independent witnesses are not present or available.
Name: Honey Soni; First Year student
College: NMIMS Kirit P. Mehta School of Law, Mumbai
Course: BA.LLB.
Links referred:
J U D G M E N TSupreme Court of Indiahttps://api.sci.gov.in › supremecourt › 60342_200…
Surinder Kumar vs The State Of Punjab on 6 January, 2020Indian Kanoonhttps://indiankanoon.org › doc