RIZWAN KHAN versus THE STATE OF CHHATTISGARH

[2020] 7 S.C.R.

RIZWAN KHAN

THE STATE OF CHHATTISGARH

(Criminal Appeal No. 580 of 2020)

BSEPTEMBER 10, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Narcotic Drugs & Psychotropic Substances Act, 1985 –ss.20(b)(ii)(B), 20(b)(ii)(C), 42, 50, 55 – Appellant-accused alongCwith others was found with contraband articles in the vehicle –Convicted u/s.20(b)(ii)(B) – Held: No error committed by both thecourts below in convicting the accused relying upon the depositionof the police officials which is reliable and trustworthy – Complianceof the procedure prescribed u/ss.42, 55 has also been establishedDand proved – It was established and proved that the samples whichwere seized and sealed from the appellant were sent to FSL – Further,to prove the case under NDPS Act, ownership of the vehicle is notrequired to be established and proved – It is enough to establishand prove that the contraband articles were found from the accusedfrom the vehicle purchased by the accused – Prosecution successfulEin proving the case against the appellant – Evidence – Code ofCriminal Procedure, 1973 – s.313.

Evidence – Of police officials/police witnesses – Convictionbased thereon – Non-examination of independent witnesses – Effectof – Discussed – Narcotic Drugs & Psychotropic Substances Act,F1985.

Dismissing the appeal, the Court

HELD: 1.1 The prosecution has been successful in provingthe case against the accused by examining the witnesses PW3,GPW4, PW5, PW7 and PW8. All the said witnesses are policeofficials and two independent witnesses who were panchnamawitnesses had turned hostile. However, all the aforesaid policewitnesses are found to be reliable and trustworthy. All of themwere thoroughly cross-examined by the defence. There is noallegation of any enmity between the police witnesses and theH

accused. No such defence has been taken in the statement underSection 313, Cr.P.C. There is no law that the evidence of policeofficials, unless supported by independent evidence, is to bediscarded and/or unworthy of acceptance. Examination ofindependent witnesses is not an indispensable requirement andsuch non-examination is not necessarily fatal to the prosecutioncase. No error was committed by both the courts below inconvicting the accused relying upon the deposition of the policeofficials. [Para 8.2][554-C-D]

Surinder Kumar v. State of Punjab (2020) 2 SCC 563– relied on.

1.2 Compliance of the procedure prescribed under Section42 and 55 of the NDPS Act has been established and proved.[Paras 9, 9.1][555-E-F]

1.3 To prove the case under the NDPS Act, the ownershipof the vehicle is not required to be established and proved. It isenough to establish and prove that the contraband articles werefound from the accused from the vehicle purchased by theaccused. Ownership of the vehicle is immaterial. What is requiredto be established and proved is the recovery of the contrabandarticles and the commission of an offence under the NDPS Act.Merely because the ownership of the vehicle is not establishedand proved and/or the vehicle is not recovered subsequently,trial is not vitiated, while the prosecution has been successful inproving and establishing the recovery of the contraband articlesfrom the accused on the spot. [Para 11][556-E-F]

Mohan Lal v. State of Punjab (2018) 17 SCC 627 :[2018] 9 SCR 1006; P.P. Fathima v. State of Kerala(2003) 8 SCC 726; Baldev Singh v. State of Haryana(2015) 17 SCC 554 : [2015] 12 SCR 969; State ofHimachal Pradesh v. Pradeep Kumar (2018) 13 SCC808 : [2018] 2 SCR 656; Mukesh Singh v. State(Narcotic Branch) Decision of Supreme Court dated31.08.2020 in SLP (Criminal) Diary No. 39528/2018

– referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.580 of 2020.

From the Judgment and Order dated 01.10.2018 of the High Courtof Chhattisgarh at Bilaspur in CRA No. 881 of 2012.C

Ms. Prachi Mishra, AAG, Raj Kishor Choudhary, Shakeel Ahmed,Anupam Bhati, Nakul Chaudhary, Ms. Malvika Raghawan, SumeerSodhi, Ms. Simran Agrawal, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.D

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned Judgmentand Order dated 01.10.2018 passed by the High Court of Chhattisgarhat Bilaspur in Criminal Appeal No. 881/2012, by which the High Courthas dismissed the said appeal preferred by the appellant herein – originalEaccused No.1 and has confirmed the Judgment and Order of Convictionand Sentence passed by the learned Special Court convicting the accused– appellant no.1 for the offence under Section 20(b)(ii)(B) of NarcoticDrugs & Psychotropic Substances Act, 1985 (hereinafter referred to asthe ‘NDPS Act’) and sentencing him to undergo five years rigorousFimprisonment and fine of Rs.25,000/-, in default, to undergo further oneyear’s rigorous imprisonment, original accused no.1 has preferred thepresent appeal.

3. The facts leading to the present appeal are, that the appellant –accused no.1 and one another – Pukhraj were charged for the offenceGunder Section 20(b)(ii)(B) of the NDPS Act, having in their possession20 kg each prohibited Narcotic Substance – Ganja. As per the case ofthe prosecution, 20 kg of Ganja was recovered from the possession ofthe appellant from the motor cycle. Nothing objectionable was foundfrom the person of the accused. Accused were informed about Section50 of the NDPS Act through notice and were also told about their legal

rights that if they want their search was to be done either by GazettedOfficer or Judicial Magistrate of First Class or any other investigatingofficer. After giving permission that the search can be conducted by anyinvestigating officer, accused was asked to open the sack kept on hismotor cycle and on opening the same, bag of Ganja weighing 20kgwas found. Panchnama was made of seizure. Samples of narcoticsrecovered from the accused were tested by smelling, burning and tastingit and was found to be Ganja. An identification panchnama was prepared.The Ganja recovered from the accused was about 20 kg, out of whichtwo packets each of about 100 gm were made for sampling and then theweight panchnama was made. The samples were sealed and an entrywas made in the seizure list on which sample seal was marked. Sampleswere marked as ‘B1’ and ‘B2’ and rest of the seized substance wasmarked as ‘B’. The accused was arrested along with the other accusedfrom whom also the contraband narcotic substance was found. At thisstage, it is required to be noted that ASI J.K. Sen (PW4) received theinformation and it was recorded by him in Dehati Nalsi and FIR in thepolice station. However, subsequently, all further investigation was carriedout by Police Inspector Ashish Shukla – PW5, who investigated thematter 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 narcoticsubstance made were sent to the laboratory for testing through constable.The substance seized was found to be Ganja. On completion of theinvestigation against the accused under the NDPS Act, appellant andone another – Pukhraj were chargesheeted for the offence under Section20(b)(ii)(B) of the NDPS Act and another co-accused Rakesh Kumarwas charged for the offence under Section 20(b)(ii)(C) of the NDPSAct. All the accused pleaded not guilty and therefore they came to betried for the aforesaid offences. In the present case, we are concernedwith original accused no.1 – Rizwan Khan and therefore we shall considerthe case against Rizwan Khan only;3.1 To prove the case against the accused, the prosecutionexamined eight witnesses, out of which PW1 – Bholu and PW6 –Kanhaiya are the independent witnesses. PW3 – Sudeep Prasad Mishrais the constable who had taken the samples to FSL. PW4 was the policeofficer 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

Aevidence, such as, seizure memo, FSL report, etc. After closure of theevidence on behalf of the prosecution, further statement of the accusedunder Section 313, Cr.P.C. was recorded. The case on behalf of theappellant – original accused no.1 was of total denial.

4. After conclusion of the trial and on appreciation of the evidenceBon record, the learned Special Judge held the accused guilty for theoffence under Section 20(b)(ii)(B) of the NDPS Act and sentenced himto undergo five years rigorous imprisonment with fine of Rs.25,000/-, indefault, to undergo further one year’s rigorous imprisonment.

5. Feeling aggrieved and dissatisfied with the impugned judgmentCand order of conviction and sentence passed by the learned SpecialJudge, the appellant herein preferred an appeal before the High Court.Before the High Court, one of the main submissions on behalf of theappellant was that as ASI J.K.Sen (PW4), who seized the articles andlodged FIR also participated in investigation and therefore the complainantand the investigator being the same, in view of the decision of this CourtDin the case of Mohan Lal v. State of Punjab reported in (2018) 17SCC 627, the accused is entitled to acquittal. Number of other submissionswere also made before the High Court on behalf of the accused, asmentioned in paragraph 4 of the impugned judgment and order passedby the High Court.E5.1 After having noted that ASI J.K. Sen (PW4) only seized thearticles and lodged the FIR and thereafter no further investigation wascarried 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 madeFon behalf of the respective parties, by the impugned judgment and order,the High Court has dismissed the said appeal preferred by accused no.1and has confirmed the judgment and order of conviction and sentencepassed by the learned Special Judge. Hence, the present appeal.

6. Learned counsel appearing for the appellant – original accusedno.1 has made the following submissions:G

i) that mandatory provisions of Section 42 of the NDPS Act hasnot been complied with;

ii) that both the learned Special Court and the High Court havecommitted grave error in convicting the appellant on the sole testimonyHof the police officers;

iii) that panchnama witnesses have not supported the version ofthe prosecution and the person who weighed the quantity of Ganja isalso not supported the case of the prosecution;

iv) that out of the eight witnesses examined, the independentwitnesses have not supported the prosecution story and were declaredhostile;

v) that alleged seizure of contraband from the appellant/accusedfrom his motor cycle is also doubtful as its number on the differentdocuments is not same; that in Ex. P/10 its number is mentioned as 8499while in Ex. P/16 and P/37 its number is mentioned as 4489; that samplesseized from the appellant/accused were marked as ‘B1’ and ‘B2’, whereasthe letter sent to Senior Superintendent of Police as per Ex. P/33 showsarticle ‘A1’ was seized from the accused and therefore it is not provedthat the contraband which is seized from the appellant/accused wassent for examination; that the sample was not deposited in safe custodyand it is not mentioned in malkhana register;

vi) that non-recovery of the motor cycle is also fatal to the caseof the prosecution;

vii) that the seal was not kept in safe custody as PW7 has statedthat he did not made any entry of seal in the register of malkhana;

vii) that no sample of the seal was sent along with the samples tothe FSL for the purpose of comparing with the seal appearing on thesamples of contraband allegedly recovered from the appellant/accused;

viii) that non-examination of constables who accompanied PW4at the time of recovery also creates serious doubt on the prosecutioncase.

6.1 Learned counsel appearing for the appellant/accused hasfurther submitted that there are such large number of discrepancies, ifa cumulative effect thereto is taken into consideration on the basis of thepermissive inference would be that serious doubts are created withrespect to the prosecution’s endeavour to prove the fact of possessionof contraband by the appellant/accused;

6.2 Learned counsel appearing for the appellant/accused hasfurther submitted that by now the appellant/accused has alreadyundergone three years of sentence out of five years awarded to him. It

Ais prayed that as Section 20(b)(ii)(B) of the NDPS Act does not providefor any minimum sentence and if this Court is not satisfied with thesubmissions of the appellant on merits, then in that case, lenient viewmay be taken and sentence of five years may be reduced to the periodalready undergone by the appellant/accused.

B7. The present appeal is vehemently opposed by the learned counselappearing on behalf of the respondent – State of Chhattisgarh. It isvehemently submitted by the learned counsel appearing on behalf of therespondent – State that in the present case on appreciation of evidenceand after considering the fact that the investigating officer has taken allprecautions and measures which are required to be taken under theCprovisions of the NDPS Act, both the courts below have rightly convictedthe accused for the offence under Section 20(b)(ii)(B) of the NDPSAct;

7.1 It is further submitted that in the present case the prosecutionhas established and proved beyond doubt, compliance of the procedureDprescribed under the NDPS Act, more particularly, Sections 42, 50 and55 of the NDPS Act. It is submitted that the compliance of the aforesaidprovisions has been established and proved by the prosecution byexamining the witnesses, PW3, PW4, PW5, PW7 and PW8;

7.2 It is further submitted that though in the present case theEindependent witnesses (Panchnama witnesses) have turned hostile, thatdoes not adversely affect the case of the prosecution. It is submittedthat the prosecution has been successful in proving the case against theaccused by examining the reliable witnesses, i.e., PW3, PW4, PW5,PW7 and PW8. It is submitted that merely because the independentFwitnesses who have signed the seizure documents turned hostile, theevidence of other witnesses, may be police officials, cannot be discarded.It is submitted that only on the independent witnesses turning hostile, theentire case of the prosecution cannot be disregarded;

7.3 It is further submitted that in the present case the prosecutionGwitnesses fully supported the case of the prosecution and they are foundto be trustworthy and no question of enmity came up between them andthe accused persons. Reliance is placed upon the decision of this Courtin 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 ofHimachal Pradesh v. Pradeep Kumar, (2018) 13 SCC 808;H

7.4 Now so far as the submission on behalf of the accused thatthe complainant and the investigating officer was the same and thereforethe 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 theinvestigation has been carried out by police inspector Ashish Shukla,PW5 and Shri J.K. Sen, PW4 only recorded the FIR. It is submitted thateven otherwise in view of the recent decision of this Court in the case ofMukesh Singh v. State (Narcotic Branch) (Special Leave Petition(Criminal) Diary No.39528/2018, decided on 31.08.2020) under theNDPS Act, the decision of this Court in the case of Mohan Lal (supra)is not good law;

7.5 It is further submitted that in the present case finding of guiltof 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 forensicreport. It is submitted that in the present case the prosecution case doesnot rest solely on the testimony of PW4 as is submitted on behalf of theaccused;

7.6 Now so far as the submission on behalf of the accused thatas in the memorandum of Superintendent of Police the sample is writtenas ‘A1’, whereas recovery from the appellant – Rizwan Khan wasmarked as ‘B1’ and ‘B2’ and therefore there are material contradictionsand therefore it is doubtful whether the samples which were seized fromthe appellant – accused were sent to the FSL, it is vehemently submittedthat in fact there was clerical error in numbering of sample inmemorandum of Superintendent of Police. It is submitted that otherwisethe records clearly established that recovery from Rizwan Khan wasmarked as ‘B1’ and ‘B2’ and the treasury record also established thatnarcotic 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 toprove the ownership of the motor cycle (vehicle) and/or failed to recoverthe motor cycle subsequently, does not vitiate the prosecution case asthe accused persons were found on the spot with the contraband articlesin the vehicle. It is submitted that therefore the commission of an offenceunder the NDPS Act is proved against them. It is submitted that it is nota case where ownership of the vehicle is to be determined but commissionof an offence under the NDPS Act was to be ascertained;

A7.8 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to dismiss the present appeal.

8. We have heard the learned counsel for the respective partiesat length.

8.1 We have scanned and re-appreciated the entire evidence onBrecord. We have also considered the findings recorded by the learnedSpecial Court, confirmed by the High Court.

8.2 Having gone through the entire evidence on record and thefindings recorded by the courts below, we are of the opinion that in thepresent case the prosecution has been successful in proving the caseCagainst the accused by examining the witnesses PW3, PW4, PW5, PW7and PW8. It is true that all the aforesaid witnesses are police officialsand two independent witnesses who were panchnama witnesses hadturned hostile. However, all the aforesaid police witnesses are found tobe reliable and trustworthy. All of them have been thoroughly cross-examined by the defence. There is no allegation of any enmity betweenDthe police witnesses and the accused. No such defence has been takenin the statement under Section 313, Cr.P.C. There is no law that theevidence 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 cannotEbe rejected on the ground of non-corroboration by independent witness.As observed and held by this Court in catena of decisions, examinationof independent witnesses is not an indispensable requirement and suchnon-examination is not necessarily fatal to the prosecution case, [seePardeep Kumar (supra)].

FIn the recent decision in the case of Surinder Kumar v. State ofPunjab, (2020) 2 SCC 563, while considering somewhat similarsubmission of non-examination of independent witnesses, while dealingwith the offence under the NDPS Act, in paragraphs 15 and 16, thisCourt observed and held as under:G“15. The judgment in Jarnail Singh v. State of Punjab (2011)3 SCC 521, relied on by the counsel for the respondent Statealso supports the case of the prosecution. In the aforesaidjudgment, this Court has held that merely because prosecutiondid not examine any independent witness, would notnecessarily lead to conclusion that the accused was falselyHimplicated. The evidence of official witnesses cannot be

distrusted and disbelieved, merely on account of their officialstatus.

16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it washeld as under: (SCC p. 655)

“It is an archaic notion that actions of the police officer should beapproached with initial distrust. It is time now to start placing atleast initial trust on the actions and the documents made by thepolice. At any rate, the court cannot start with the presumptionthat the police records are untrustworthy. As proposition of law,the presumption should be the other way round. That official actsof the police have been regularly performed is wise principle ofpresumption and recognised even by the legislature.”

Applying the law laid down by this Court on the evidence of policeofficials/police witnesses to the facts of the case in hand, referred tohereinabove, we are of the opinion as the police witnesses are found tobe reliable and trustworthy, no error has been committed by both thecourts below in convicting the accused relying upon the deposition of thepolice officials.

9. Now so far as the submission on behalf of the accused withrespect to non-compliance of the procedure prescribed under Section42 of the NDPS Act is concerned, on considering the deposition of PW8(Ishwar Prasad Verma), compliance of the procedure prescribed underSection 42 of the NDPS Act has been established and proved.

9.1 Similarly, compliance under Section 55 of the NDPS Act hasalso been established and proved by the prosecution by examining PW3and PW7.

9.2 It has been established and proved that the samples whichwere seized and sealed were sent to the FSL. From the record, itestablishes that the recovery from Rizwan Khan was marked as ‘B1’and ‘B2’ and the treasury record also that the narcotic substancesrecovered from Rizwan Khan were shown as ‘B1’ and ‘B2’. Thereseems to be some clerical error in numbering of sample in memorandumof Superintendent of Police and the same was mentioned as ‘A1’.However, it has been established and proved that the samples whichwere seized and sealed from Rizwan were sent to the FSL. The aforesaidaspect has been dealt with by the learned Special Court in its judgmentin paragraphs 25 and 26.

A10. Now so far as the submission on behalf of the accused that asPW4 – J.K. Sen who recorded the FIR, he himself was the investigatingofficer and therefore the trial is vitiated is concerned, it is required to benoted that initially learned counsel appearing on behalf of the accusedmade the above submission relying upon the decision of this Court in thecase of Mohan Lal (supra). However, in view of the recent decision ofBthis Court in the case of Mukesh Singh (supra) overruling the decisionof this Court in the case of Mohan Lal (supra), learned counselappearing for the accused has not pressed the above ground. Evenotherwise, it is required to be noted that in the present case the aforesaidissue does not arise as after the FIR was recorded by Shri J.K. Sen,CPW4, thereafter the case was investigated by Ashish Shukla, PW5.Therefore, on facts, both the complainant and the investigating officerwere different.

11. Now so far as the submission on behalf of the accused thatthe ownership of the motor cycle (vehicle) has not been established andDproved and/or that the vehicle has not be recovered is concerned, it isrequired to be noted that in the present case the appellant and the otheraccused persons were found on the spot with the contraband articles inthe vehicle. To prove the case under the NDPS Act, the ownership ofthe vehicle is not required to be established and proved. It is enough toestablish and prove that the contraband articles were found from theEaccused from the vehicle purchased by the accused. Ownership of thevehicle is immaterial. What is required to be established and proved isthe recovery of the contraband articles and the commission of an offenceunder the NDPS Act? Therefore, merely because of the ownership ofthe vehicle is not established and proved and/or the vehicle is not recovered

Fsubsequently, trial is not vitiated, while the prosecution has been successfulin proving and establishing the recovery of the contraband articles fromthe accused on the spot.

12. Now so far as the prayer on behalf of the accused to take alenient view and to impose the lesser punishment than the sentenceGimposed by the learned Special Court, confirmed by the High Court, isconcerned, considering the object and purpose of the enactment of theNDPS Act and the fact that the sentence provided under the Act for theoffence in question is rigorous imprisonment for term which may extendto 10 years and with fine which may extend to one lakh rupees and theCourt has imposed sentence of five years rigorous imprisonment only,H

the prayer to take lenient view is rejected as the learned Special Courtitself has taken lenient view.

13. In view of the above and for the reasons stated above, we areof the firm view that both the courts below have rightly convicted theaccused for the offence under Section 20(b)(ii)(B) of the NDPS Act.We are in complete agreement with the findings recorded by the learnedSpecial Court and confirmed by the High Court and the convictionrecorded by both the courts below. We see no reason to interfere withthe conviction of the accused for the offence under Section 20(b)(ii)(B)of the NDPS Act. In the circumstances, the present appeal fails and thesame deserves to be dismissed and is accordingly dismissed.

Divya Pandey

Appeal dismissed.