Supreme Court Upholds Conviction Under NDPS Act Despite Non-Examination of Independent Witnesses: Surinder Kumar vs. State of Punjab (2020)

Date of the Judgment: January 6, 2020
Citation: (2020) INSC 1
Judges: N.V. Ramana, J., R. Subhash Reddy, J., B.R. Gavai, J.

Can a conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) be sustained solely on the testimony of official witnesses, even if independent witnesses were not examined? The Supreme Court of India recently addressed this question in the case of Surinder Kumar vs. State of Punjab. The Court upheld the conviction, emphasizing that the evidence of official witnesses cannot be distrusted merely due to their official status. This judgment clarifies the evidentiary standards in NDPS cases and reinforces the principle that the absence of independent witnesses does not automatically invalidate a prosecution’s case.

Case Background

On September 12, 1996, a police patrol party, including Devi Lal, HC (PW-1), and Darbara Singh, S.I. (PW-2), was traveling from Dalbir Khera towards Waryam Khera. Near a canal bridge, they encountered the appellant, Surinder Kumar, carrying a bag. Upon seeing the police, Surinder Kumar turned towards the canal bank, raising suspicion. The police apprehended him and, after summoning the ASP, Abohar, searched his bag, recovering 1 kg 750 grams of opium. Two 10-gram samples were taken, sealed, and the remaining opium was resealed. An FIR was registered, and Surinder Kumar was arrested.

Timeline:

Course of Proceedings

The Special Judge, Ferozepur, convicted Surinder Kumar on May 20, 1999, under Section 18 of the NDPS Act, sentencing him to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000. Aggrieved, Surinder Kumar appealed to the High Court of Punjab and Haryana at Chandigarh. The High Court dismissed the appeal on April 22, 2008, affirming the trial court’s decision. Subsequently, Surinder Kumar appealed to the Supreme Court.

Legal Framework

The case primarily concerns Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which deals with offenses related to the possession of opium. The relevant part of Section 18 of the NDPS Act, 1985 is:
“18. Punishment for contravention in relation to opium poppy and opium.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,—
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

The judgment also touches upon Section 50 of the NDPS Act, 1985, which relates to the conditions under which searches of persons are to be conducted.

Arguments

The appellant’s counsel argued that:

• The prosecution failed to examine Joginder Singh, ASI, who handled the case property, thus creating a break in the chain of evidence.
• The prosecution did not examine independent witnesses, even though they were available.
• S.K. Asthana, ASP, who was allegedly present during the search and seizure, was not examined, violating Section 50 of the NDPS Act, 1985.

The respondent-state argued that:

• The prosecution had proven the case beyond reasonable doubt with cogent evidence.
• The non-examination of independent witnesses did not invalidate the prosecution’s case.
• The evidence of official witnesses was credible and sufficient.

Issues Framed by the Supreme Court

The Supreme Court addressed the following issues:

1. Whether the non-examination of Joginder Singh, ASI, who handled the case property, affected the chain of evidence.
2. Whether the non-examination of independent witnesses was fatal to the prosecution’s case.
3. Whether the non-examination of S.K. Asthana, ASP, violated Section 50 of the NDPS Act, 1985.

Treatment of the Issue by the Court:

Authorities

The Court considered the following authorities:

The Court also considered Section 18 and Section 50 of the NDPS Act, 1985.

Judgment

Authorities:

✓ Trimukh Maroti Kirkan v. State of Maharashtra [2006] 10 SCC 681: The Court distinguished this case, stating that the facts were different and did not apply to the present case.
✓ Noor Aga v. State of Punjab & Anr [2008] 16 SCC 417: The Court distinguished this case stating that the facts were different and did not apply to the present case.
✓ Mohan Lal v. State of Punjab [2018] 17 SCC 627: The Court noted the ruling that the informant and investigator should not be the same person but clarified that this principle does not apply retrospectively to cases prior to this judgment.
✓ Jarnail Singh v. State of Punjab [2011] 3 SCC 521: The Court relied on this case to reiterate that the non-examination of independent witnesses does not automatically invalidate the prosecution’s case.
✓ Varinder Kumar v. State of Himachal Pradesh [2019] SCC Online SC 170: The Court relied on this case to clarify that the law laid down in Mohan Lal would not apply retrospectively.
✓ State, Govt. of NCT of Delhi v. Sunil & Anr. [2001] 1 SCC 652: The Court relied on this case to support the view that actions of police officers should be approached with initial trust, and the presumption should be that official acts have been regularly performed.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the credibility of the official witnesses and the lack of evidence to suggest any mala fide intent or tampering with evidence. The Court emphasized that the non-examination of independent witnesses does not automatically invalidate the prosecution’s case, especially when the official witnesses’ testimonies are consistent and reliable. The Court also considered the fact that the ASP, S.K. Asthana, was summoned multiple times and could not be examined due to valid reasons. The Court relied on the chemical examiner’s report to confirm that the seals were intact. The Court was also influenced by the fact that the law laid down in Mohan Lal was not retrospective.

The Court’s reasoning can be summarized in the following flowchart:

The Court’s decision was based on the following reasons:

• The non-examination of Joginder Singh, ASI, did not affect the chain of evidence as he was not in possession of the seals, and the case property was returned with seals intact.
• The non-examination of independent witnesses was not fatal to the prosecution’s case, as efforts were made to join them, but none were available, and the official witnesses’ testimonies were credible.
• The non-examination of S.K. Asthana, ASP, did not violate Section 50 of the NDPS Act, as he was summoned multiple times but could not be examined due to valid reasons, and the search and seizure were conducted in his presence.
• The Court relied on the chemical examiner’s report to confirm that the seals were intact.
• The Court clarified that the law laid down in Mohan Lal was not retrospective.

The Court stated:
“It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police.”

The Court also observed:
“The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.”

The Court further noted:
“From the evidence on record in this case the prosecution has proved the guilt of the appellant beyond reasonable doubt.”

Key Takeaways

• The testimony of official witnesses is credible and sufficient in NDPS cases, even if independent witnesses are not examined.
• Non-examination of a witness who handled the case property does not affect the chain of evidence if the seals were intact.
• The non-examination of a witness due to valid reasons does not invalidate the search and seizure if it was conducted in their presence.
• The principle that the informant and investigator should not be the same person does not apply retrospectively.

Directions

The Court directed the appellant, who was on bail, to surrender within four weeks to serve the remaining period of his sentence.

Development of Law

The ratio decidendi of this case is that the evidence of official witnesses is credible and sufficient in NDPS cases, and the non-examination of independent witnesses does not automatically invalidate the prosecution’s case. This judgment reinforces the principle that the absence of independent witnesses does not automatically invalidate a prosecution’s case. This case also clarifies that the law laid down in Mohan Lal is not retrospective.

Conclusion

The Supreme Court upheld the conviction of Surinder Kumar under the NDPS Act, emphasizing that the testimony of official witnesses is credible and sufficient, even in the absence of independent witnesses. The Court clarified that the non-examination of Joginder Singh, ASI, and S.K. Asthana, ASP, did not invalidate the prosecution’s case. This judgment reinforces the principle that the absence of independent witnesses does not automatically invalidate a prosecution’s case and also clarifies the retrospective application of the law laid down in Mohan Lal.