Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 351
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 2044 OF 2010
FIRDOSKHAN KHURSHIDKHAN .…APPELLANT(S)
VERSUS
THE STATE OF GUJARAT & ANR. ….RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). 2045 OF 2010
J U D G M E N T
Mehta, J.
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1. These two appeals arise out of a common judgment dated 30
November, 2009 rendered by the Division Bench of the High Court
of Gujarat whereby Criminal Appeal Nos. 1865 of 2006 and 1866
of 2006 preferred by the appellants herein i.e. Anwarkhan
Jahilkhan Pathan and Firdoskhan Khurshidkhan Pathan,
respectively were dismissed. By way of the said appeals, the
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appellants herein had assailed the judgment dated 6 June, 2006
Signature Not Verified
passed by the learned Additional Sessions Judge, Fast Track
Digitally signed by
Narendra Prasad
Date: 2024.04.30
15:26:33 IST
Reason:
Court, Nadiad(hereinafter being referred to as the ‘trial Court’) in
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Special Case(NDPS) No. 5 of 2003 convicting the appellants for the
offences punishable under Section 21 read with Section 8(c) and
Section 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985(hereinafter being referred to as ‘NDPS Act’) and sentencing
them to undergo rigorous imprisonment for ten years and fine of
Rs. 1 lakh each in default of payment of fine to undergo simple
imprisonment for two years.
Brief facts: -
2. Shri Deepak Pareek(PW-2) posted as Intelligence Officer in
the Narcotic Control Bureau(hereinafter being referred to as ‘NCB’),
Ahmedabad received a secret information at his office in the
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morning of 30 January, 2003. The informer divulged that two
persons would be delivering contraband/illicit substance at the ST
Bus Stand, Kheda between 4:30 pm and 5:00 pm. The secret
information also contained the description of features of the
suspects and the clothes which they would be probably wearing.
The information also provided that the contraband substance had
been received from one Adilkhan and that the miscreants would
be delivering it to a third person. Deepak Pareek(PW-2) jotted down
the secret information, translated and converted it into a
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typewritten script and forwarded a copy thereof to his immediate
superior officer.
3. Two panchas i.e. Manubhai(PW-1) and Amit R. Dantani were
summoned to the NCB office, Ahmedabad where a preliminary
panchnama taking their consent to participate in the proceedings
was drawn. Deepak Pareek(PW-2) accompanied with other NCB
officials and the panchas proceeded to ST Bus Stand, Kheda. The
raiding party was divided into two groups. Upon reaching the bus
stand at around 4:30 pm, they saw two persons, whose description
was matching with the secret information, sitting near the public
urinals of the bus stand. The officials observed that a bag was
being held by one of the two suspects who handed the same over
to the other and proceeded towards the exit gate of the bus stand.
One group of the raiding team cornered the person who was
holding the bag whereas, the second group followed the other
person who was seen proceeding towards the exit gate of the bus
stand. The first group after disclosing their identity to the suspect
who was holding the bag, made enquiry about his identity and he
gave out his name to be Anwarkhan(A-1). The second suspect,
however, escaped from the spot and could not be apprehended by
the group of officials who went in his pursuit. The bag held by
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Anwarkhan(A-1) was opened and two polythene bags containing
suspected contraband material were found therein. The
contraband substance was weighed at the bus stand and gross
weight of the two polythene bags came out to be 2kg and 30 grams.
As the spot where the suspect and the contraband were found was
a busy public place, the NCB officers in order to avoid security
issues thought it fit to move to the PWD Guest House adjacent to
the bus stand for carrying out the seizure, sampling and sealing
procedure. Accordingly, the team members along with the
panchas , the suspect and the packet of contraband, moved to the
PWD Guest House. Three samples were collected from each
polythene bag and were sealed under the signatures of the
panchas and the Intelligence Officer(PW-2) of the NCB. The
second/final part of the panchnama was drawn up and completed
at the PWD Guest House, Kheda. Summon under Section 67 of
the NDPS Act was issued to Anwarkhan(A-1) by Deepak
Pareek(PW-2) which was duly received by him. Statement of
Anwarkhan(A-1) was recorded under Section 67 of the NDPS Act
by Deepak Pareek(PW-2) and thereafter, he was arrested.
4. Further, investigation was assigned to Intelligence Officer
Vikram Ratnu(PW-3). During investigation, information was
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received that the second suspect who had escaped from the ST Bus
Stand had been tracked down by the Madya Pradesh Police. The
Intelligence Officer Deepak Pareek(PW-2) claims to have proceeded
to Shah Jahan Pur Police Station, Madhya Pradesh where the
second suspect was found and identified to be Firdoskhan(A-2)
who volunteered to come down to the Office of NCB, Ahmedabad
for participating in investigation. Accordingly, Firdoskhan(A-2)
was brought to NCB Office, Ahmedabad by Deepak Pareek(PW-2)
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on 9 February, 2003 where summon under Section 67 of the
NDPS Act was served to him. Deepak Pareek(PW-2) recorded the
statement of Firdoskhan(A-2) under Section 67 of the NDPS Act
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during the intervening night of 9 and 10 February, 2003
whereafter, Firdoskhan(A-2) was also arrested in the present case.
5. One part of samples was forwarded to the FSL and second
part of samples was forwarded to the Central Revenues Control
Laboratory, New Delhi(hereinafter being referred to ‘CRCL’). After
analysis, a report was received to the effect that the samples gave
positive test for presence of ingredients of brown sugar/heroin and
Diacetyl Morphine contents were found therein.
6. A complaint came to be filed by Intelligence Officer, Vikram
Ratnu(PW-3) against both the accused in the Court of learned
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Sessions Judge, Nadiad. The case was transferred to the Court of
learned Additional Sessions Judge, Fast Track Court, Nadiad for
trial.
7. Charges were framed against both the accused for the
offences mentioned above who abjured their guilt and claimed
trial. The prosecution examined 4 witnesses and exhibited 38
documents to prove its case. The accused were questioned under
Section 313 of the Code of Criminal Procedure, 1973(hereinafter
being referred to as ‘CrPC’) upon which, they denied the allegations
as appearing against them in the prosecution evidence and
claimed to be innocent. After deliberating upon the submissions
advanced on behalf of the parties and upon analysing the evidence
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available on record, the trial Court vide judgment dated 6 June,
2006 proceeded to convict and sentence the appellants in the
manner stated above.
8. The appeals preferred by the appellants were rejected by the
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High Court of Gujarat vide impugned judgment dated 30
November, 2009.
9. Since both the appeals arise out of a common judgment, they
have been heard analogously and are being decided together.
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Submissions on behalf of the appellants: -
10. Shri. T.N. Singh, learned counsel representing the appellants
vehemently contended that the conviction of the appellants as
recorded by the trial Court and affirmed by the High Court is totally
unjustified and contrary to facts and law. He advanced the
following pertinent submissions craving acquittal for both the
appellants: -
(i) That the requirements of mandatory procedure contained
in Section 42 of the NDPS Act were not complied with by
the Seizure Officer because copy of the secret information
was not forwarded to the superior officer as mandated by
Section 42(2) of the NDPS Act.
(ii) That the option to be searched before a Magistrate or a
Gazetted Officer was also not given to Anwarkhan(A-1) and
hence, it is a clear case of violation of the mandate of
Section 50 of the NDPS Act which vitiates the conviction of
the appellants.
(iii) That no independent panch witness was associated in the
search and seizure proceedings and hence, the entire case
of the prosecution regarding the seizure becomes doubtful.
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(iv) That the panch witness Manubhai(PW-1) was serving in
the Income Tax Department and one of the NCB officials
being a part of raiding team was previously serving in the
same Department and hence, it is clearly established that
the panch witness Manubhai(PW-1) was an interested
witness.
(v) That Firdoskhan(A-2) was neither arrested at the spot nor
his name was recorded in the seizure memo. The witness
Vikram Ratnu(PW-3) identified the accused Firdoskhan(A-
2) for the first time in the Court without any Test
Identification Parade being held and thus, the
identification of Firdoskhan in the Court by PW-3 cannot
be treated to be reliable.
(vi) That the witness Vikram Ratnu(PW-3) at para 20 of the
deposition admitted that the contraband articles were
found in Ahmedabad unattended and hence it is clearly a
case of the narcotic drugs being planted upon the accused.
(vii) That the statements of the accused appellants recorded by
NCB officials under Section 67 of the NDPS Act which have
been heavily relied upon as incriminating evidence by the
trial Court as well as the High Court have to be omitted
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from consideration. In this regard, he placed reliance on
the judgment rendered by this Court in the case of Tofan
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Singh v. State of Tamil Nadu .
11. On these counts, learned counsel for the appellants urged
that the appellants deserve to be acquitted of all the charges.
Submissions on behalf of Respondents: -
12. Per contra , learned counsel appearing for the respondent NCB
fervently opposed the submissions advanced by the learned
counsel for the appellants. It was contended that the panch
witness Manubhai(PW-1) was serving in the Income Tax
Department and hence, he cannot be termed to be a partisan or a
stock witness. Manubhai(PW-1) has fully supported the
prosecution case in his testimony. The evidence of the Intelligence
Officers, namely, Deepak Pareek(PW-2) and Vikram Ratnu(PW-3)
is also trustworthy and reliable. They had no cause or motive to
falsely implicate the accused appellants in a case involving
recovery of huge quantity of narcotic drug heroin. The evidence of
Deepak Pareek(PW-2) and Vikram Ratnu(PW-3) is unimpeachable.
They identified the accused Anwarkhan(A-1) and proved the
seizure of the contraband narcotic drug from the bag being held by
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(2021) 4 SCC 1
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him. Vikram Ratnu(PW-3) also identified Firdoskhan(A-2) as the
second man who had escaped from the spot.
13. Learned counsel for the respondents further contended that
the discrepancy sought to be exploited by the learned counsel for
the appellant in the statement of Vikram Ratnu(PW-3) wherein it
is mentioned that the contraband articles were found in
Ahmedabad unattended, was explained by the witness in his
further examination wherein, he stated that it was not true that
the mudammal was found lying abandoned. Thus, as per the
learned counsel, the prosecution has proved its case against both
the accused beyond all manner of doubt and that the conviction of
the accused as recorded by the trial Court and affirmed by the High
Court does not warrant any interference by this Court.
14. On these grounds, learned counsel for the respondents
implored the Court to dismiss both the appeals.
15. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned judgment. We have also thoroughly re-appreciated the
evidence available on record.
16. At the outset, we may note that the contention of learned
counsel for the appellants that the search and seizure was
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undertaken without associating an independent witness is
untenable on the face of record. Manubhai(PW-1), the panch
witness associated in the search and seizure proceedings was
serving in the Income Tax Department and hence by no stretch of
imagination, can it be accepted that the witness was a stock
witness of the NCB or was an interested witness. Manubhai(PW-
1) in his sworn testimony proved the recovery panchnama (Exhibit
P-30) and also fully supported the prosecution case regarding the
search and seizure of contraband effected from Anwarkhan(A-1).
Nothing significant could be elicited by the defence in the
prolonged cross-examination undertaken from Manubhai(PW-1)
and hence, we have no hesitation in holding that the evidence of
Manubhai(PW-1) being the panch witness associated in the search
and seizure effected from Anwarkhan(A-1) is reliable and
trustworthy. Thus, it is well established that independent panch
witness was associated in the search and seizure procedure.
17. It was the fervent contention of learned counsel for the
appellants that the search and seizure proceedings are vitiated on
account of non-compliance of the mandatory procedure provided
under Section 42 of the NDPS Act. The said contention is on the
face of record, misplaced. The secret information which was
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received by Deepak Pareek(PW-2) was to the effect that two
suspects would be bringing contraband substance at the ST Bus
Stand, Kheda which is a public place.
18. Section 42 of the NDPS Act deals with search and seizure
from a building, conveyance or enclosed place. When the search
and seizure is effected from a public place, the provisions of
Section 43 of the NDPS Act would apply and hence, there is no
merit in the contention of learned counsel for the appellants that
non-compliance of the requirement of Section 42(2) vitiates the
search and seizure. Hence, the said contention is noted to be
rejected.
19. So far as the contention of learned counsel for the appellants
that the search and seizure proceedings are vitiated on account of
the non-compliance of Section 50 of the NDPS Act is concerned,
the same is also noted to be rejected because admittedly, the
seizure in this case was not effected during personal search of the
appellant Anwar Khan(A-1). Admittedly, the contraband was being
carried in a polythene bag held by the appellant Anwar Khan(A-1)
in his hand and hence, there was no requirement for the Seizure
Officer to have acted under the provisions of Section 50 of the
NDPS Act before conducting the search and seizure proceedings.
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20. We have minutely gone through the testimony of four
prosecution witnesses and find that the seizure of contraband
narcotic drug, i.e., heroin/brown sugar weighing 2 kg and 30
grams from the bag being held by Firdoskhan(A-2) has been well
established by these witnesses in their sworn testimony and is
corroborated by contemporaneous documents which were
exhibited by them and so also the material exhibits. The witnesses
Deepak Pareek(PW-2), Vikram Ratnu(PW-3) and Jan
Mohammed(PW-4) have faithfully deposed about the whole process
beginning from the receipt of the secret information, summoning
of the panchas , raid at the ST Bus Stand, Kheda followed by the
search of Anwarkhan(A-1), the seizure effected from him and the
panchnama proceedings at the PWD Guest House followed by the
transmission of the sample packets to the FSL and CRCL in sealed
condition. The complete chain of evidence required to prove the
safe custody of the samples in a sealed condition has been proved
in the testimony of the three officials of NCB. The CRCL
report(Exhibit-62) admissible under Section 293 CrPC concludes
that sample packets A2 and B2 gave positive tests for presence of
8.4% and 7.9% of Diacetyl Morphine, respectively. Thus, the fact
regarding the seizure of contraband narcotic drug, i.e.,
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heroin/brown sugar weighing 2 kgs and 30 grams from the
possession of Anwarkhan(A-1) has been duly established by the
prosecution beyond all manner of doubt. The link evidence
required to prove the sanctity of the sampling and transmission of
the samples to the Chemical Analyst is also sacrosanct. The search
and seizure procedure is free from all doubts.
21. Learned counsel for the appellants harped upon a
discrepancy as appearing in the statement of Vikram Ratnu(PW-3)
wherein he stated that the contraband was found lying abandoned
at Ahmedabad. This discrepancy was explained by the witness in
his examination-in-chief at a later point of time. The witness
clearly stated that the mudammal was not found in an abandoned
condition and we have no reason to disbelieve the explanation so
offered by the witness.
22. In these circumstances, we are of the view that the
prosecution has duly proved the guilt of Anwarkhan(A-1) beyond
all manner of doubt by leading convincing and satisfactory
evidence.
23. Now, coming to the case of appellant Firdoskhan(A-2) in
Criminal Appeal No. 2044 of 2010.
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24. It is not in dispute that the appellant Firdoskhan(A-2) was
not apprehended on the spot or at the time of seizure. On a perusal
of the panchnama (Exhibit-30), it is evident that Firdoskhan is not
named therein. We find that even though Anwarkhan(A-1) was
present with the raiding team from 4.30 p.m onwards, no effort
was made by any of the NCB officials to make an inquiry from him
regarding the identity of his companion who allegedly fled away
from the spot.
25. The name of Firdoskhan(A-2) cropped up for the first time in
the statement of Anwarkhan(A-1) recorded under Section 67 of the
NDPS Act. However, we are duly satisfied that the sequence in
which the said statement came to be recorded completely
discredits the reliability thereof. Anwarkhan(A-1) was
apprehended at the bus stand with the packet of narcotic drug at
around 4:30 p.m. His signatures had been taken on the
panchnama (Exhibit-30) prepared at 9:00 p.m. and thus, it does
not stand to reason that the Intelligence Officer would defer
arresting Anwarkhan(A-1) to a later point of time because, as per
the arrest memo(Exhibit-43) his arrest is shown at 11:45 p.m. It
seems that this deferment in formal arrest of Anwarkhan(A-1) was
only shown in papers so that the Intelligence Officer could record
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the statement of Anwarkhan(A-1) under Section 67 of the NDPS
Act and avoid the same being hit by the rigours of Article 20(3) of
the Constitution of India.
26. The admissibility of a confessional statement of the accused
recorded under Section 67 of the NDPS Act was examined by this
Court in the case of Tofan Singh (supra) and it was laid down that
such confessional statements are not admissible in evidence.
27. Hence, the statement(Exhibit-42) of Anwarkhan(A-1) wherein
he allegedly identified the appellant Firdoskhan(A-2) as the person
who had escaped from the spot cannot be read in evidence against
the appellant Firdoskhan(A-2) because the manner in which the
said statement was recorded leaves much to be desired and creates
a grave doubt on the sanctity thereof, in addition to the same
having rendered inadmissible by virtue of Tofan Singh (supra) .
28. The prosecution witness Deepak Pareek(PW-2) claimed that
Firdoskhan(A-2) was apprehended from Shah Jahan Pur Police
Station, Madhya Pradesh. However, no document pertaining to
the apprehension/detention of appellant Firdoskhan(A-2) at the
Shah Jahan Pur Police Station was placed on record by the
prosecution. Thus, the very manner in which the said accused
was apprehended and brought to the NCB Office at Ahmedabad in
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the purported exercise of recording his statement under Section
67 of the NDPS Act is full of doubt and creates grave suspicion.
Even otherwise, the confession of the accused recorded under
Section 67 of the NDPS Act cannot be admitted in evidence as a
confession as had been held in the case of Tofan Singh (supra) .
Hence the confessional statement(Exhibit-42) does not lend any
succour to the prosecution in its quest to prove the charges against
the accused Firdoskhan(A-2).
29. The witness Vikram Ratnu(PW-3) identified Firdoskhan(A-2)
as the person who had escaped from the spot, when he testified on
oath. However, we feel that the first time identification of
Firdoskhan(A-2) by Vikram Ratnu(PW-3) is not trustworthy and
reliable.
30. We may observe that as per the case set out in the complaint
and the evidence of the NCB officials, the team of narcotic
officers/officials was divided into two groups. However, it is not
clear from the evidence of any of the four prosecution witnesses as
to what was the composition of these two groups. Neither the
panch witness Manubhai(PW-1) nor the Intelligence Officer Deepak
Pareek(PW-2) identified Firdoskhan(A-2) as the accused who had
escaped from the bus stand. In this background, we feel that the
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first time identification of Firdoskhan(A-2) by Vikram Ratnu(PW-3)
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during his evidence in the Court recorded on 14 February, 2005
i.e. more than two years from the date of incident, is dubitable.
The evidence of Vikram Ratnu(PW-3) to the extent he claimed to
have identified Firdoskhan(A-2) is neither reliable nor it gets
corroborated by any other independent evidence and hence, his
evidence deserves to be discarded to this extent.
31. There is no dispute that no contraband substance was
recovered from the possession of appellant Firdoskhan(A-2).
32. Resultantly, the conviction of Firdoskhan(A-2) as recorded by
the trial Court and affirmed by the High Court cannot be sustained
and he deserves to be acquitted by giving him the benefit of doubt.
33. As a consequence of the above discussion, the following order
is passed: -
(a) Criminal Appeal No. 2045 of 2010 filed by appellant
Anwarkhan(A-1) lacks merit and is hereby dismissed. He is on
bail. His bail bonds are cancelled. He shall surrender before the
trial Court within 30 days to serve the remaining part of sentence
failing which the trial Court shall take steps to apprehend the
accused and make him serve out the remaining sentence.
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(b) Criminal Appeal No. 2044 of 2010 preferred by appellant
Firdoskhan(A-2) is allowed. His conviction as recorded by the trial
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Court vide judgment dated 6 June, 2006 and affirmed by the High
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Court vide judgment dated 30 November, 2009 is quashed and
set aside. He is acquitted of all the charges. He is on bail and
need not surrender. His bail bonds stand discharged.
34. Pending application(s), if any, shall stand disposed of.
………………………….J.
(SANDEEP MEHTA)
……………..…….………………….……….J.
(PRASANNA BHALACHANDRA VARALE)
New Delhi;
April 30, 2024
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