Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 580 OF 2020
(Arising out of S.L.P.(Criminal) No.4422/2019)
Rizwan Khan …Appellant
Versus
The State of Chhattisgarh …Respondent
J U D G M E N T
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order dated 01.10.2018 passed by the High Court
of Chhattisgarh at Bilaspur in Criminal Appeal No. 881/2012, by
which the High Court has dismissed the said appeal preferred by
the appellant herein – original accused No.1 and has confirmed
the Judgment and Order of Conviction and Sentence passed by
Signature Not Verified
the learned Special Court convicting the accused – appellant no.1
Digitally signed by
MEENAKSHI KOHLI
Date: 2020.09.10
13:29:35 IST
Reason:
for the offence under Section 20(b)(ii)(B) of Narcotic Drugs &
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Psychotropic Substances Act, 1985 (hereinafter referred to as the
‘NDPS Act’) and sentencing him to undergo five years rigorous
imprisonment and fine of Rs.25,000/, in default, to undergo
further one year’s rigorous imprisonment, original accused no.1
has preferred the present appeal.
3. The facts leading to the present appeal are, that the
appellant – accused no.1 and one another – Pukhraj were
charged for the offence under Section 20(b)(ii)(B) of the NDPS Act,
having in their possession 20 kg each prohibited Narcotic
Substance – Ganja. As per the case of the prosecution, 20 kg of
Ganja was recovered from the possession of the appellant from
the motor cycle. Nothing objectionable was found from the
person of the accused. Accused were informed about Section 50
of the NDPS Act through a notice and were also told about their
legal rights that if they want their search was to be done either by
a Gazetted Officer or Judicial Magistrate of First Class or any
other investigating officer. After giving permission that the
search can be conducted by any investigating officer, accused
was asked to open the sack kept on his motor cycle and on
opening the same, a bag of Ganja weighing 20kg was found.
Panchnama was made of seizure. Samples of narcotics recovered
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from the accused were tested by smelling, burning and tasting it
and was found to be Ganja. An identification panchnama was
prepared. The Ganja recovered from the accused was about 20
kg, out of which two packets each of about 100 gm were made for
sampling and then the weight panchnama was made. The
samples were sealed and an entry was made in the seizure list on
which sample seal was marked. Samples were marked as ‘B1’
and ‘B2’ and rest of the seized substance was marked as ‘B’.
The accused was arrested along with the other accused from
whom also the contraband narcotic substance was found. At this
stage, it is required to be noted that ASI J.K. Sen (PW4) received
the information and it was recorded by him in Dehati Nalsi and
FIR in the police station. However, subsequently, all further
investigation was carried out by Police Inspector Ashish Shukla –
PW5, who investigated the matter after registration of the FIR and
recorded statement of witnesses. The information of the complete
investigation was given to Special Judge, NDPS and also the
Municipal Police Officer. The packets of the narcotic substance
made were sent to the laboratory for testing through constable.
The substance seized was found to be Ganja. On completion of
the investigation against the accused under the NDPS Act,
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appellant and one another – Pukhraj were chargesheeted for the
offence under Section 20(b)(ii)(B) of the NDPS Act and another co
accused Rakesh Kumar was charged for the offence under
Section 20(b)(ii)(C) of the NDPS Act. All the accused pleaded not
guilty and therefore they came to be tried for the aforesaid
offences. In the present case, we are concerned with original
accused no.1 – Rizwan Khan and therefore we shall consider the
case against Rizwan Khan only;
3.1 To prove the case against the accused, the prosecution
examined eight witnesses, out of which PW1 – Bholu and PW6 –
Kanhaiya are the independent witnesses. PW3 – Sudeep Prasad
Mishra is the constable who had taken the samples to FSL. PW4
was the police officer who recorded the information and
thereafter the FIR. PW5 – Ashish Shukla investigated the case
after registration of the FIR by J.K. Sen, PW4. The prosecution
also produced on record the documentary evidence, such as,
seizure memo, FSL report, etc. After closure of the evidence on
behalf of the prosecution, further statement of the accused under
Section 313, Cr.P.C. was recorded. The case on behalf of the
appellant – original accused no.1 was of total denial.
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4. After conclusion of the trial and on appreciation of the
evidence on record, the learned Special Judge held the accused
guilty for the offence under Section 20(b)(ii)(B) of the NDPS Act
and sentenced him to undergo five years rigorous imprisonment
with fine of Rs.25,000/, in default, to undergo further one year’s
rigorous imprisonment.
5. Feeling aggrieved and dissatisfied with the impugned
judgment and order of conviction and sentence passed by the
learned Special Judge, the appellant herein preferred an appeal
before the High Court. Before the High Court, one of the main
submissions on behalf of the appellant was that as ASI J.K.Sen
(PW4), who seized the articles and lodged FIR also participated in
investigation and therefore the complainant and the investigator
being the same, in view of the decision of this Court in the case of
Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627, the
accused is entitled to acquittal. Number of other submissions
were also made before the High Court on behalf of the accused,
as mentioned in paragraph 4 of the impugned judgment and
order passed by the High Court.
5.1 After having noted that ASI J.K. Sen (PW4) only seized the
articles and lodged the FIR and thereafter no further investigation
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was carried out by him and the further investigation was carried
out by PW5 – Ashish Shukla, the decision of this Court in the
case of Mohan Lal (supra) shall not be applicable. After
considering the submissions made on behalf of the respective
parties, by the impugned judgment and order, the High Court
has dismissed the said appeal preferred by accused no.1 and has
confirmed the judgment and order of conviction and sentence
passed by the learned Special Judge. Hence, the present appeal.
6. Learned counsel appearing for the appellant – original
accused no.1 has made the following submissions:
i) that mandatory provisions of Section 42 of the NDPS
Act has not been complied with;
ii) that both the learned Special Court and the High
Court have committed a grave error in convicting the
appellant on the sole testimony of the police officers;
iii) that panchnama witnesses have not supported the
version of the prosecution and the person who weighed the
quantity of Ganja is also not supported the case of the
prosecution;
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iv) that out of the eight witnesses examined, the
independent witnesses have not supported the prosecution
story and were declared hostile;
v) that alleged seizure of contraband from the
appellant/accused from his motor cycle is also doubtful as
its number on the different documents is not same; that in
Ex. P/10 its number is mentioned as 8499 while in Ex. P/16
and P/37 its number is mentioned as 4489; that samples
seized from the appellant/accused were marked as ‘B1’ and
‘B2’, whereas the letter sent to Senior Superintendent of
Police as per Ex. P/33 shows article ‘A1’ was seized from the
accused and therefore it is not proved that the contraband
which is seized from the appellant/accused was sent for
examination; that the sample was not deposited in safe
custody and it is not mentioned in malkhana register;
vi) that nonrecovery of the motor cycle is also fatal to the
case of the prosecution;
vii) that the seal was not kept in safe custody as PW7 has
stated that he did not made any entry of seal in the register
of malkhana;
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vii) that no sample of the seal was sent along with the
samples to the FSL for the purpose of comparing with the
seal appearing on the samples of contraband allegedly
recovered from the appellant/accused;
viii) that nonexamination of constables who accompanied
PW4 at the time of recovery also creates serious doubt on the
prosecution case.
6.1 Learned counsel appearing for the appellant/accused
has further submitted that there are such a large number of
discrepancies, if a cumulative effect thereto is taken into
consideration on the basis of the permissive inference would be
that serious doubts are created with respect to the prosecution’s
endeavour to prove the fact of possession of contraband by the
appellant/accused;
6.2 Learned counsel appearing for the appellant/accused
has further submitted that by now the appellant/accused has
already undergone three years of sentence out of five years
awarded to him. It is prayed that as Section 20(b)(ii)(B) of the
NDPS Act does not provide for any minimum sentence and if this
Court is not satisfied with the submissions of the appellant on
merits, then in that case, a lenient view may be taken and
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sentence of five years may be reduced to the period already
undergone by the appellant/accused.
7. The present appeal is vehemently opposed by the learned
counsel appearing on behalf of the respondent – State of
Chhattisgarh. It is vehemently submitted by the learned counsel
appearing on behalf of the respondent – State that in the present
case on appreciation of evidence and after considering the fact
that the investigating officer has taken all precautions and
measures which are required to be taken under the provisions of
the NDPS Act, both the courts below have rightly convicted the
accused for the offence under Section 20(b)(ii)(B) of the NDPS Act;
7.1 It is further submitted that in the present case the
prosecution has established and proved beyond doubt,
compliance of the procedure prescribed under the NDPS Act,
more particularly, Sections 42, 50 and 55 of the NDPS Act. It is
submitted that the compliance of the aforesaid provisions has
been established and proved by the prosecution by examining the
witnesses, PW3, PW4, PW5, PW7 and PW8;
7.2 It is further submitted that though in the present case the
independent witnesses (Panchnama witnesses) have turned
hostile, that does not adversely affect the case of the prosecution.
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It is submitted that the prosecution has been successful in
proving the case against the accused by examining the reliable
witnesses, i.e., PW3, PW4, PW5, PW7 and PW8. It is submitted
that merely because the independent witnesses who have signed
the seizure documents turned hostile, the evidence of other
witnesses, may be police officials, cannot be discarded. It is
submitted that only on the independent witnesses turning
hostile, the entire case of the prosecution cannot be disregarded;
7.3 It is further submitted that in the present case the
prosecution witnesses fully supported the case of the prosecution
and they are found to be trustworthy and no question of enmity
came up between them and the accused persons. Reliance is
placed upon the decision of this Court in the case of P.P. Fathima
v. State of Kerala, (2003) 8 SCC 726; Baldev Singh v. State of
Haryana, (2015) 17 SCC 554; and State of Himachal Pradesh v.
Pradeep Kumar, (2018) 13 SCC 808 ;
7.4 Now so far as the submission on behalf of the accused that
the complainant and the investigating officer was the same and
therefore the trial is vitiated is concerned, it is submitted that in
the present case, as such, the said question does not arise as in
the present case the investigation has been carried out by police
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inspector Ashish Shukla, PW5 and Shri J.K. Sen, PW4 only
recorded the FIR. It is submitted that even otherwise in view of
the recent decision of this Court in the case of Mukesh Singh v.
State (Narcotic Branch) (Special Leave Petition (Criminal) Diary
under the NDPS Act, the
No.39528/2018, decided on 31.08.2020)
decision of this Court in the case of Mohan Lal (supra) is not a
good law;
7.5 It is further submitted that in the present case finding of
guilt of the accused is based upon corroborative statements of
PW4 (J.K. Sen) with PW3(Sudeep Prasad Mishra), PW5 (Ashish
Shukla), PW7 (Nagender Singh), PW8 (Ishwar Prasad Verma)
coupled with the forensic report. It is submitted that in the
present case the prosecution case does not rest solely on the
testimony of PW4 as is submitted on behalf of the accused;
7.6 Now so far as the submission on behalf of the accused that
as in the memorandum of Superintendent of Police the sample is
written as ‘A1’, whereas recovery from the appellant – Rizwan
Khan was marked as ‘B1’ and ‘B2’ and therefore there are
material contradictions and therefore it is doubtful whether the
samples which were seized from the appellant – accused were
sent to the FSL, it is vehemently submitted that in fact there was
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a clerical error in numbering of sample in memorandum of
Superintendent of Police. It is submitted that otherwise the
records clearly established that recovery from Rizwan Khan was
marked as ‘B1’ and ‘B2’ and the treasury record also established
that narcotic substances recovered from Rizwan Khan were ‘B1’
and ‘B2’ and the said samples were sent to the FSL;
7.7 It is further submitted that the prosecution having failed to
prove the ownership of the motor cycle (vehicle) and/or failed to
recover the motor cycle subsequently, does not vitiate the
prosecution case as the accused persons were found on the spot
with the contraband articles in the vehicle. It is submitted that
therefore the commission of an offence under the NDPS Act is
proved against them. It is submitted that it is not a case where
ownership of the vehicle is to be determined but commission of
an offence under the NDPS Act was to be ascertained;
7.8 Making the above submissions and relying upon the
aforesaid decisions of this Court, it is prayed to dismiss the
present appeal.
8. We have heard the learned counsel for the respective parties
at length.
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8.1 We have scanned and reappreciated the entire evidence on
record. We have also considered the findings recorded by the
learned Special Court, confirmed by the High Court.
8.2 Having gone through the entire evidence on record and the
findings recorded by the courts below, we are of the opinion that
in the present case the prosecution has been successful in
proving the case against the accused by examining the witnesses
PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid
witnesses are police officials and two independent witnesses who
were panchnama witnesses had turned hostile. However, all the
aforesaid police witnesses are found to be reliable and
trustworthy. All of them have been thoroughly crossexamined
by the defence. There is no allegation of any enmity between the
police witnesses and the accused. No such defence has been
taken in the statement under Section 313, Cr.P.C. There is no
law that the evidence of police officials, unless supported by
independent evidence, is to be discarded and/or unworthy of
acceptance.
It is settled law that the testimony of the official witnesses
cannot be rejected on the ground of noncorroboration by
independent witness. As observed and held by this Court in
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catena of decisions, examination of independent witnesses is not
an indispensable requirement and such nonexamination is not
necessarily fatal to the prosecution case, [see Pardeep Kumar
(supra)].
In the recent decision in the case of
Surinder Kumar v. State
of Punjab, (2020) 2 SCC 563 , while considering somewhat similar
submission of nonexamination of independent witnesses, while
dealing with the offence under the NDPS Act, in paragraphs 15
and 16, this Court observed and held as under:
“15. The judgment in Jarnail Singh v. State of Punjab (2011) 3
SCC 521, relied on by the counsel for the respondent State also
supports the case of the prosecution. In the aforesaid judgment,
this Court has held that merely because prosecution did not
examine any independent witness, would not necessarily lead to
conclusion that the accused was falsely implicated. The evidence
of official witnesses cannot be distrusted and disbelieved, merely
on account of their official status.
16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was
held as under: (SCC p. 655)
“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. At any rate, the court cannot start with
the presumption that the police records are untrustworthy.
As a proposition of law, the presumption should be the other
way round. That official acts of the police have been regularly
performed is a wise principle of presumption and recognised
even by the legislature.”
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Applying the law laid down by this Court on the evidence of
police officials/police witnesses to the facts of the case in hand,
referred to hereinabove, we are of the opinion as the police
witnesses are found to be reliable and trustworthy, no error has
been committed by both the courts below in convicting the
accused relying upon the deposition of the police officials.
9. Now so far as the submission on behalf of the accused with
respect to noncompliance of the procedure prescribed under
Section 42 of the NDPS Act is concerned, on considering the
deposition of PW8 (Ishwar Prasad Verma), compliance of the
procedure prescribed under Section 42 of the NDPS Act has been
established and proved.
9.1 Similarly, compliance under Section 55 of the NDPS Act has
also been established and proved by the prosecution by
examining PW3 and PW7.
9.2 It has been established and proved that the samples which
were seized and sealed were sent to the FSL. From the record, it
establishes that the recovery from Rizwan Khan was marked as
‘B1’ and ‘B2’ and the treasury record also that the narcotic
substances recovered from Rizwan Khan were shown as ‘B1’ and
‘B2’. There seems to be some clerical error in numbering of
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sample in memorandum of Superintendent of Police and the
same was mentioned as ‘A1’. However, it has been established
and proved that the samples which were seized and sealed from
Rizwan were sent to the FSL. The aforesaid aspect has been
dealt with by the learned Special Court in its judgment in
paragraphs 25 and 26.
10. Now so far as the submission on behalf of the accused that
as PW4 – J.K. Sen who recorded the FIR, he himself was the
investigating officer and therefore the trial is vitiated is
concerned, it is required to be noted that initially learned counsel
appearing on behalf of the accused made the above submission
relying upon the decision of this Court in the case of Mohan Lal
(supra) . However, in view of the recent decision of this Court in
the case of Mukesh Singh (supra) overruling the decision of this
Court in the case of Mohan Lal (supra) , learned counsel appearing
for the accused has not pressed the above ground. Even
otherwise, it is required to be noted that in the present case the
aforesaid issue does not arise as after the FIR was recorded by
Shri J.K. Sen, PW4, thereafter the case was investigated by
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Ashish Shukla, PW5. Therefore, on facts, both the complainant
and the investigating officer were different.
11. Now so far as the submission on behalf of the accused that
the ownership of the motor cycle (vehicle) has not been
established and proved and/or that the vehicle has not be
recovered is concerned, it is required to be noted that in the
present case the appellant and the other accused persons were
found on the spot with the contraband articles in the vehicle. To
prove the case under the NDPS Act, the ownership of the vehicle
is not required to be established and proved. It is enough to
establish and prove that the contraband articles were found from
the accused from the vehicle purchased by the accused.
Ownership of the vehicle is immaterial. What is required to be
established and proved is the recovery of the contraband articles
and the commission of an offence under the NDPS Act?
Therefore, merely because of the ownership of the vehicle is not
established and proved and/or the vehicle is not recovered
subsequently, trial is not vitiated, while the prosecution has been
successful in proving and establishing the recovery of the
contraband articles from the accused on the spot.
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12. Now so far as the prayer on behalf of the accused to take a
lenient view and to impose the lesser punishment than the
sentence imposed by the learned Special Court, confirmed by the
High Court, is concerned, considering the object and purpose of
the enactment of the NDPS Act and the fact that the sentence
provided under the Act for the offence in question is rigorous
imprisonment for a term which may extend to 10 years and with
fine which may extend to one lakh rupees and the Court has
imposed sentence of five years rigorous imprisonment only, the
prayer to take a lenient view is rejected as the learned Special
Court itself has taken a lenient view.
13. In view of the above and for the reasons stated above, we
are of the firm view that both the courts below have rightly
convicted the accused for the offence under Section 20(b)(ii)(B) of
the NDPS Act. We are in complete agreement with the findings
recorded by the learned Special Court and confirmed by the High
Court and the conviction recorded by both the courts below. We
see no reason to interfere with the conviction of the accused for
the offence under Section 20(b)(ii)(B) of the NDPS Act. In the
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circumstances, the present appeal fails and the same deserves to
be dismissed and is accordingly dismissed.
……………………………….J.
[ASHOK BHUSHAN]
……………………………….J.
[R. SUBHASH REDDY]
NEW DELHI; ……………………………….J.
SEPTEMBER 10, 2020. [M.R. SHAH]
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