Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1605 OF 2021
ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. OF 8425 OF 2021) (
Kallu Khan …Appellant
Versus
State of Rajasthan ...Respondent
JUDGMENT
J.K. Maheshwari, J.
Leave granted.
2. This appeal has been filed arising out of the judgment
dated 25.11.2017, passed by High Court of Judicature of
Rajasthan Bench at Jaipur, in Criminal Appeal No. 491 of 2012,
whereby, the order dated 21.04.2012 passed by Special Judge
(N.D.P.S.), Jhalawar, Rajasthan in Sessions Case No. 49 of
2011 convicting the appellant under Sections 8 & 21 of Narcotic
Drugs and Psychotropic Substance Act (hereinafter referred to
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2021.12.11
15:04:41 IST
Reason:
as "NDPS Act") and sentenced to undergo rigorous
imprisonment for 10 years along with fine of Rs. 1,00,000/
1
(One Lakh) has been affirmed. While confirming the conviction
and sentence, the High Court reduced the default sentence from
2 years to 1 year.
3. The facts briefly put, as per prosecution allegations, on
the date of incident i.e. 24.04.2011, S.I. Pranveer Singh (P.W. 6)
Station Incharge of Bhawani Mandi Police Station alongwith
constables Preetam Singh (P.W. 1), Sardar Singh (P.W. 2) and
Rajendra Prasad (P.W. 8), was on routine patrolling at around
6:05 a.m. from Sulia Chowki to Sunel and reached Jhokadia.
While returning from Jhokadia to Bhawani Mandi, they saw the
accused Kallu Khan riding an unnumbered motorcycle and
coming from opposite direction. On seeing the police patrolling
vehicle, Kallu Khan turned back and tried to ran away.
Suspecting his conduct, the police party apprehended and
questioned him. In enquiry about his behaviour, accused Kallu
Khan did not give satisfactory reply. On having doubt, S.I.
Pranveer Singh (P.W. 6) ordered constable Preetam Singh (P.W.
1) to arrange independent witness for search of accused Kallu
Khan and also of the motorcycle which he was riding.
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Constable Preetam Singh (P.W.1) submitted a report to him that
independent witness could not be found immediately for
search. Thereon, looking to the conduct of accused, S.I.
Pranveer Singh (P.W. 6) obtained consent from Constable
Sardar Singh (P.W. 2) & Constable Rajendra Prasad (P.W. 8)
and made them witness for the search of the vehicle.
4. Thereafter, the accused Kallu Khan was given notice
under Section 50 of NDPS Act informing that he could be
searched before a Gazette Officer or Magistrate, on which, he
gave his consent for search by S.H.O.. After consent, the
search of his body as well as of motorcycle was conducted.
During the personal search, no incriminating substance was
recovered from him, whereas, in search of motorcycle, a
polythene bag beneath the seat of motorcycle was found,
containing brown substance resembling smack which was
burnt on a paper and, from its smell, it was confirmed to be
smack. The substance weighed 900gms, out of which, two
samples were prepared, sealed and marked as ‘A’ & ‘B’
respectively. The remaining substance was put in another bag
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marked as ‘C’ and sealed, whereafter, accused Kallu Khan was
taken to Police Station and an offence under Sections 8 & 21
was registered as Crime No. 130/2011 against him and the
investigation was conducted. On completion of investigation,
chargesheet was filed against accused Kallu Khan before the
Court of Special Judge, where charges under Sections 8 & 21 of
NDPS Act were framed. The accused abjured his guilt and
demanded trial taking defence of false implication.
5. The Trial Court after recording the evidence, found
strength in the testimony of Constable Preetam Singh (PW1),
Constable Sardar Singh (PW2), S.I. Pranveer Singh (PW6) and
Constable Rajendra Prasad (PW8) and held that the
prosecution has proved its case beyond reasonable doubt. The
Trial Court further noted that, the place of incident is on public
road which leads from Bhawani Mandi to Sunel. It is said
despite efforts, due to nonavailability of independent
witnesses, S.I. Pranveer Singh (P.W.6) conducted proceedings
of search after consent and seizure being temporarily posted as
Incharge of Bhawani Mandi Police Station and completed the
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same. It is observed that though the search appears to have
been done superficially, but evidence of police personnel cannot
be discarded merely because they are departmental witnesses.
There was no enmity of police personnel with accused and no
interest of any witness was shown in the matter. Thus, the
Trial Court with those findings convicted accused Kallu Khan
for the offences under Sections 8 & 21 of NDPS Act and
directed to undergo rigorous imprisonment for ten years with
fine of Rs. 1,00,000/ and in default, to undergo simple
imprisonment for two years.
6. The appellant preferred appeal before High Court and
primarily rest his challenge on the grounds; firstly, S.I.
Pranveer Singh (PW6) was not posted as Station Incharge of
the concerned police station, as such he was not authorized to
conduct search & seizure. Secondly, no independent witnesses
were associated in the search and seizure proceedings, however
the said recovery is vitiated. Thirdly, there are glaring
contradictions in the testimonies of prosecution witnesses.
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7. Upon hearing, the High Court was unimpressed of the
pleas raised by the accused/appellant and even on reappraisal
of evidence, concurred with the findings of Trial Court. The
High Court said, it was a case of chance recovery while the
accused in transit was suspected by the police patrolling party
on a public road, hence, recovery proceedings would be
governed by Section 43 of NDPS Act. Nonetheless, the High
Court reduced the default sentence from two years without
disturbing the findings of conviction and main sentence.
8. On perusal of the proceedings of this case, it reveals that
on 29.10.2021, looking to the surrender certificate, it was
observed the appellant had already served the sentence of 10
years. As the appellant had already served the main sentence,
however directed to be released on interim bail. The report
further indicate that the appellant had been released on bail
on 24.04.2021 on depositing the amount of fine of Rs. 1 lakh.
Thus, the sentence, as awarded, by the Trial Court and
confirmed by the High Court, had already been served by the
appellant, depositing the amount of fine.
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9. Mr. C.N. Srieekumar, learned senior counsel
representing the appellant has strenuously urged that in the
present case, the search and seizure was conducted by an
unauthorized officer with the help of the police witnesses
without independent witnesses. He has placed reliance on the
judgment of this Court in Union of India vs. Mohanlal and
(2016)3 SCC 379 and contends that in absence of
another
handling and disposal of seized narcotic drags/psychotropic
substances, the danger of recirculation of seized contraband
back into the system cannot be ruled out. Learned senior
counsel would further argue that in the present case, the
prosecution has not proved its case beyond reasonable doubt.
The procedure, as contemplated under Section 50(1) of NDPS
Act, has not been followed. The ownership of the vehicle is not
of the accused, however the link of the vehicle in commission
of the offence qua accused is missing. The contraband article
has not been produced in the court during evidence. With the
said contention, it is argued that the Trial Court and High
Court have committed error to prove the guilt of the
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appellant, and sentenced him for the charges under Sections 8
& 21 of NDPS Act.
10. On the other hand, learned counsel representing the
State contends that it is not a case based on recovery of
contraband from personal search of the accused, in fact,
recovery is from the motor cycle i.e. the vehicle used in
commission of offence. Therefore, the mandatory compliance
of Section 50 of NDPS Act do not attract in the case. Reliance
is placed on a Constitutional Bench judgment of this Court in
(2011) 1
Vijaysinh Chandubha Jadeja vs. State of Gujarat
SCC 609. Reliance has further been placed on the case of
State of Punjab vs. Baljinder Singh (2019) 10 SCC 473. It is
urged that the recovery is a chance recovery from the motor
cycle, used in the commission of offence, therefore, the
provisions of Section 43 of NDPS Act would attract. Reliance is
placed on the judgment of this Court in S.K. Raju vs. State of
(2018) 9 SCC 708. As per Section 43 of NDPS
West Bengal
Act, Pranveer SinghPW6 is competent for the search and
seizure and the High Court has rightly recorded the findings on
8
this issue. It is also contended that in case, the search and
seizure is otherwise proved, production of contraband article in
court is not required. It is urged that conviction based on the
police witnesses without having an independent witness is not
always fatal. In support of the said contention, reliance is
placed on the judgment of this Court in Surinder Kumar vs.
(2020) 2 SCC 563 to urge that merely because
State of Punjab
the prosecution did not examine any independent witness
would not necessarily lead to conclusion that accused was
falsely implicated. In the said judgment, law laid down in the
case of Jarnail Singh vs. State of Punjab (2011) 3 SCC 521
has been reaffirmed. It is lastly urged that the concurrent
findings are not normally required to be interfered with unless
there is a perversity. Reliance is placed on the judgments of
this Court in State of U.P. vs. Krishna Gopal (1988) 4 SCC
302, (2005) 6
Ganga Kumar Srivastava vs. State of Bihar
SCC 211, Jarnail Singh (supra) and S.K. Sakkar vs. State
(2021) 4 SCC 483. In reply to the contention
of West Bengal
of the appellant regarding not having any connection of the
9
vehicle with the accused to prove his guilt, reliance is placed
on a judgment of this Court in Rizwan Khan vs. State of
(2020) 9 SCC 627, however prayed for dismissal
Chhattisgarh
of appeal.
11. After hearing and on perusal of record and the evidence
brought, it is apparent that on apprehending the accused,
while making search of the motor cycle, 900 gm of smack was
seized to which seizure and sample memos were prepared, as
proved by the departmental witnesses. In the facts of the case at
hand, where the search and seizure was made from the vehicle
used, by way of chance recovery from public road, the
provisions of Section 43 of the NDPS Act would apply. In this
regard, the guidance may be taken from the judgments of this
Court in (supra) and (supra). However,
S. K. Raju S.K. Sakkar
the recovery made by Pranveer Singh (PW6) cannot be doubted
in the facts of this case.
12. Now reverting to the contention that the motor cycle
seized in commission of offence does not belong to accused,
10
however seizure of the contraband from the motor cycle cannot
be connected to prove the guilt of accused. The Trial Court on
appraisal of the testimony of witnesses, Constable Preetam
Singh (PW1), Constable Sardar Singh (PW2), S.I. Pranveer Singh
(PW6) and ConstableRajendra Prasad (PW8), who were members
of the patrolling team and the witnesses of the seizure, proved
beyond reasonable doubt, when they were on patrolling, the
appellant came driving the seized vehicle from opposite side. On
seeing the police vehicle, he had taken back the motor cycle
which he was riding. However, the police team apprehended and
intercepted the accused and made the search of vehicle, in
which the seized contraband smack was found beneath the seat
of the vehicle. However, while making search at public place,
the contraband was seized from the motor cycle driven by the
accused. Thus, recovery of the contraband from the motor
cycle of the appellant was a chance recovery on a public road.
As per Section 43 of NDPS Act, any officer of any of the
departments, specified in Section 42, is having power of seizure
and arrest of the accused from a public place, or in transit of
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any narcotic drug or psychotropic substance or controlled
substance. The said officer may detain in search any person
whom he has reason to believe that he has committed an
offence punishable under the provisions of the NDPS Act, in
case the possession of the narcotic drug or psychotropic
substance appears to be unlawful. Learned senior counsel
representing the appellant is unable to show any deficiency in
following the procedure or perversity to the findings recorded by
the Trial Court, affirmed by the High Court. The seizure of the
motor cycle from him is proved beyond reasonable doubt,
therefore, the question of ownership of vehicle is not relevant.
In the similar set of facts, in the case of Rizwan Khan (supra),
this Court observed the ownership of the vehicle is immaterial.
Therefore, the argument as advanced by learned senior counsel
is of no substance and meritless.
13. At this state, the argument advanced by the appellant
regarding nonproduction of contraband in the court due to
which benefit of doubt ought to be given to accused, is required
to be adverted to. In the case of State of Rajasthan vs. Sahi
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Ram (2019) 10 SCC 649, this Court held that when the seizure
of material is proved on record and is not even disputed, the
entire contraband material need not be placed on record. It is
not a case in which the appellant has proved beyond reasonable
doubt that while sending the samples for forensic tests, seals
were not intact or the procedure has been materially not followed
by protecting the seized substance or was not stored properly,
as specified in the case of (supra) in which case the
Mohan Lal
directions were given to be followed on administrative side.
However, in the facts of the case, the said judgment is not of any
help to appellant.
14. Similarly, in the case of Than Kumar vs. State of
(2020) 5 SCC 260, this Court observed that if seizure
Haryana
is otherwise proved and the samples taken from and out of
contraband material were kept intact; the report of forensic
expert shows potency, nature and quality of contraband
material, essential ingredients constituting offence are made out
and the nonproduction of contraband in the Court is not fatal.
As discussed above, the appellant has failed to show that
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findings recorded by two Courts suffer from any perversity or
illegality on the said issue and warrant interference
15. Simultaneously, the arguments advanced by the
appellant regarding noncompliance of Section 50 of NDPS Act is
bereft of any merit because no recovery of contraband from the
person of the accused has been made to which compliance of
the provision of Section 50 NDPS Act has to follow mandatorily.
In the present case, in the search of motor cycle at public place,
the seizure of contraband was made, as revealed. Therefore,
compliance of Section 50 does not attract in the present case. It
is settled in the case of (supra) that in the case of
Vijaysinh
personal search only, the provisions of Section 50 of the Act is
required to be complied with but not in the case of vehicle as in
the present case, following the judgments of
Surinder Kumar
(supra) and Baljinder Singh (supra). Considering the facts of
this Court, the argument of noncompliance of Section 50 of
NDPS Act advanced by the counsel is hereby repelled.
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16. The issue raised regarding conviction solely relying upon
the testimony of police witnesses, without procuring any
independent witness, recorded by the two courts, has also been
dealt with by this Court in the case of (supra)
Surinder Kumar
holding that merely because independent witnesses were not
examined, the conclusion could not be drawn that accused was
falsely implicated. Therefore, the said issue is also wellsettled
and in particular, looking to the facts of the present case, when
the conduct of the accused was found suspicious and a chance
recovery from the vehicle used by him is made from public place
and proved beyond reasonable doubt, the appellant cannot
avail any benefit on this issue. . In our view, the concurrent
findings of the courts does not call for interference.
17. It is to observe that as per the judgment of Krishna
(supra), it is held that interference in exercise of the
Gopal
power under Article 136 of the Constitution of India can only be
called for when the judgment of the lower court is vitiated by
gross error. This Court is having an occasion to reconsider the
said issue in the case of (supra),
Ganga Kumar Srivastava
15
whereby it is settled that interference can be made when a
question of law of general public importance arises or a decision
shocks the conscience of the Court. It is held that in case, the
finding is vitiated by any error of law or procedure or found
contrary to the principles of natural justice, and misreading of
the evidence, or where the conclusions of the High Court are
manifestly perverse and unsupportable from the evidence on
record, interference under Article 136 can be called for. The said
principle has again been reiterated in the case of
Jarnail Singh
(supra), reaffirming the law as laid down in Ganga Kumar
Srivastava (supra). Recently also, in the case of S.K. Sakkar
(supra), this Court has reaffirmed the issue of scope of
interference in exercise of power by this Court under Article 136
of the Constitution of India .
18. In view of the foregoing discussion, looking to the facts
of the present case, in our considered opinion, the findings
concurrently recorded by the Courts holding the accused guilty
for the charges and to direct him to undergo sentence as
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prescribed, do not suffer from any perversity, illegality,
warranting interference by this Court.
19. Accordingly, we do not find any merit in this appeal.
Hence, it is dismissed. As the appellant has already served the
sentence so awarded and released after deposit of the amount of
fine, therefore, no further directions need be issued.
………………………….J.
[ INDIRA BANERJEE ]
……………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
DECEMBER 11, 2021.
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