SUPREME COURT OF INDIA

Before:- G.T. Nanavati and S.N. Phukan, JJ.

Criminal Appeal No. 985 of 1995. D/d. 2.12.1999.

Jal Singh - Appellant

Versus

State of Haryana - Respondent

A. Narcotic Drugs and Pschotropic Substances Act, 1985, Sections 42, 43 and 51 - No independent witnesses - Bedding which the accused was carrying searched and found to contain 10 kg of opium - Many independent witnesses had been requested to witness the search but all of them refused - Evidence of IO and the other witnesses on this point remaining unshaken despite cross-examination - Held that their evidence regarding the search, held, worthy of acceptance.

[Para 4]

B. Criminal Procedure Code, 1973, Section 100(4) - Independent witnesses - Non-availability of - If vitiative of the evidence regarding search.

[Para 4]

ORDER

G.T. Nanavati, J. - The petitioner has been convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 as he was found in possession of 10 kg opium.

2. The evidence led by the prosecution clearly establishes that 10 kg opium was found from a bedding which the appellant was carrying. What was contended by the learned counsel for the appellant was that no independent witnesses were kept present at the time of search and seizure, that the Head Constable who had searched the appellant had no authority to do so and, therefore, he ought to have reported the matter to his superior officer and only the higher authorised officer could have searched the appellant. As that was not done, the evidence regarding search and seizure should have been held as illegal and the appellant could not have been convicted on the basis of such illegal evidence.

3. It was also contended that the requirements of Sections 52, 53 and 57 were not complied with and therefore also the appellant's conviction must be regarded as illegal. Same contentions were raised before the High Court, but it did not find any force in them and in our opinion, rightly.

4. The opium was not found from the person of the appellant but from the bedding which he was carrying. The evidence of the investigating officer and other witnesses discloses that he had requested many independent witnesses to witness the search but they all refused and, therefore, he had to search the accused in the absence of any independent witness. Though they were cross-examined on this point, the evidence has remained unshaken and worthy of acceptance. In that view of the matter, the evidence regarding the search could not have been discarded by the courts below. As regards non-compliance with other provisions, the learned counsel was not able to point out what exactly was the breach.

5. This appeal is, therefore, dismissed.