KALLU KHAN versus STATE OF RAJASTHAN

[2021] 9 S.C.R. 700

[2021] 9 S.C.R.

KALLU KHAN

STATE OF RAJASTHAN

(Criminal Appeal No. 1605 of 2021)

BDECEMBER 11, 2021

[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]

Narcotic Drugs and Psychotropic Substance Act – ss.8, 21,43, 50 – Appellant convicted u/ss.8, 21 – Affirmed by High Court –On appeal, held: As recovery of the contraband from appellant’sCmotorcycle was chance recovery on public road, the provisionsof s.43 would apply – Seizure of the motor cycle from appellant isproved beyond reasonable doubt, therefore, the question ofownership of vehicle is not relevant – Compliance of s.50 notattracted in the present case – Concurrent findings by courts holdingDthe appellant guilty and directing him to undergo the prescribedsentence not perverse warranting any interference.

Dismissing the appeal, the Court

HELD : 1.1 On apprehending the accused, while makingsearch of the motor cycle, 900 gm of smack was seized to whichEseizure and sample memos were prepared, as proved by thedepartmental witnesses. In the facts of the case at hand, wherethe search and seizure was made from the vehicle used, by wayof chance recovery from public road, the provisions of Section 43of the NDPS Act would apply. The recovery made by PW6 cannotFbe doubted in the facts of this case. [Para 11][707-B-C]

S.K. Raju vs. State of West Bengal (2018) 9 SCC708:[2018] 10 SCR 731; S.K. Sakkar vs. State of WestBengal (2021) 4 SCC 483:2021 AIR 2870 – relied on.

1.2 The Trial Court on appraisal of the testimony ofGwitnesses, Constable-PW1, Constable-PW2, S.I.-PW6 andConstable-PW8, who were members of the patrolling team andthe witnesses of the seizure, proved beyond reasonable doubt,when they were on patrolling, the appellant came driving theseized 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 andmade the search of vehicle, in which the seized contraband smackwas found beneath the seat of the vehicle. However, while makingsearch at public place, the contraband was seized from the motorcycle driven by the accused. Thus, recovery of the contrabandfrom the motor cycle of the appellant was chance recovery on apublic road. As per Section 43 of NDPS Act, any officer of any ofthe departments, specified in Section 42, is having power ofseizure and arrest of the accused from public place, or in transitof any narcotic drug or psychotropic substance or controlledsubstance. The said officer may detain in search any person whomhe has reason to believe that he has committed an offencepunishable under the provisions of the NDPS Act, in case thepossession of the narcotic drug or psychotropic substanceappears to be unlawful. The seizure of the motor cycle from himis proved beyond reasonable doubt, therefore, the questionof ownership of vehicle is not relevant. [Para 12][707-D-H;708-A-B]

Rizwan Khan vs. State of Chhattisgarh (2020) 9 SCC627 : 2020 AIR 4297; State of Rajasthan vs. Sahi

Ram (2019) 10 SCC 649 : [2019] 14 SCR 1117 –

relied on.

2.1 It is not case in which the appellant has proved beyondreasonable doubt that while sending the samples for forensictests, seals were not intact or the procedure has been materiallynot followed by protecting the seized substance or was not storedproperly. The appellant has failed to show that findings recordedby two Courts suffer from any perversity or illegality on the saidissue and warrant interference. No recovery of contraband fromthe person of the accused has been made to which compliance ofthe 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.[Paras 13-15][708-C-D, F-H]

Than Kumar vs. State of Haryana (2020) 5 SCC 260 :[2020] 3 SCR 1090; Vijaysinh Chandubha Jadeja vs.

702SUPREME COURT REPORTS

[2021] 9 S.C.R.

AState of Gujarat (2011) 1 SCC 609 : [2010] 13 SCR255; Surinder Kumar vs. State of Punjab (2020) 2 SCC563 : [2020] 1 SCR 307– relied on.

Union of India vs. Mohanlal and another (2016) 3SCC 379 : [2016] 1 SCR 651 – held inapplicable.

BState of Punjab vs. Baljinder Singh (2019) 10 SCC473 : [2019] 13 SCR 520 – referred to.

2.2 Merely because independent witnesses were notexamined, the conclusion could not be drawn that accused wasfalsely implicated. The findings concurrently recorded by theCCourts holding the accused guilty for the charges and to directhim to undergo sentence as prescribed, do not suffer from anyperversity, illegality, warranting interference by this Court. Asthe appellant has already served the sentence so awarded (10years) and released after deposit of the amount of fine, therefore,

Dno further directions need be issued. [Paras 16, 18 and 19][709-B-C, G-H; 710-A-B]

Jarnail Singh vs. State of Punjab (2011) 3 SCC 521:[2011] 2 SCR 888; State of U.P. vs. Krishna Gopal(1988) 4 SCC 302 : [1988] 2 Suppl. SCR 391; GangaEKumar Srivastava vs. State of Bihar (2005) 6 SCC 211: 2005 AIR 3123 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1605 of 2021.

From the Judgment and Order dated 25.11.2017 of the High Courtof Judicature at Rajasthan, Bench at Jaipur in S.B. Criminal AppealNo.491 of 2012.

C. N. Sreekumar, Sr. Adv., Amit Sharma, T. Mahipal, Rohit K.Sinha, Indrajeet Singh, Advs. for the Appellant.

Pai Amit, Milind Kumar, Advs. for the Respondent.

The Judgment of the Court was delivered by

J. K. MAHESHWARI, J.

1. Leave granted.

2. This appeal has been filed arising out of the judgment dated25.11.2017, passed by High Court of Judicature of Rajasthan Bench atJaipur, in Criminal Appeal No. 491 of 2012, whereby, the order dated21.04.2012 passed by Special Judge (N.D.P.S.), Jhalawar, Rajasthan inSessions Case No. 49 of 2011 convicting the appellant under Sections 8& 21 of Narcotic Drugs and Psychotropic Substance Act (hereinafterreferred to as “NDPS Act”) and sentenced to undergo rigorousimprisonment for 10 years along with fine of Rs. 1,00,000/- (One Lakh)has been affirmed. While confirming the conviction and sentence, theHigh Court reduced the default sentence from 2 years to 1 year.

3. The facts briefly put, as per prosecution allegations, on the dateof incident i.e. 24.04.2011, S.I. Pranveer Singh (P.W. 6) Station In-chargeof Bhawani Mandi Police Station alongwith constables Preetam Singh(P.W. 1), Sardar Singh (P.W. 2) and Rajendra Prasad (P.W. 8), was onroutine patrolling at around 6:05 a.m. from Sulia Chowki to Sunel andreached Jhokadia. While returning from Jhokadia to Bhawani Mandi,they saw the accused Kallu Khan riding an unnumbered motorcycle andcoming 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 hisbehaviour, accused Kallu Khan did not give satisfactory reply. On havingdoubt, S.I. Pranveer Singh (P.W. 6) ordered constable Preetam Singh(P.W. 1) to arrange independent witness for search of accused KalluKhan and also of the motorcycle which he was riding. Constable PreetamSingh (P.W.1) submitted report to him that independent witness could

Anot be found immediately for search. Thereon, looking to the conduct ofaccused, S.I. Pranveer Singh (P.W. 6) obtained consent from ConstableSardar Singh (P.W. 2) & Constable Rajendra Prasad (P.W. 8) and madethem witness for the search of the vehicle.

4. Thereafter, the accused Kallu Khan was given notice underBSection 50 of NDPS Act informing that he could be searched before aGazette Officer or Magistrate, on which, he gave his consent for searchby S.H.O.. After consent, the search of his body as well as of motorcyclewas conducted. During the personal search, no incriminating substancewas recovered from him, whereas, in search of motorcycle, polythenebag beneath the seat of motorcycle was found, containing brownCsubstance resembling smack which was burnt on paper and, from itssmell, 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 markedas ‘C’ and sealed, whereafter, accused Kallu Khan was taken to PoliceDStation and an offence under Sections 8 & 21 was registered as CrimeNo. 130/2011 against him and the investigation was conducted. Oncompletion of investigation, charge-sheet was filed against accused KalluKhan before the Court of Special Judge, where charges under Sections8 & 21 of NDPS Act were framed. The accused abjured his guilt anddemanded trial taking defence of false implication.E

5. The Trial Court after recording the evidence, found strength inthe testimony of Constable Preetam Singh (PW1), Constable SardarSingh (PW2), S.I. Pranveer Singh (PW6) and Constable Rajendra Prasad(PW8) and held that the prosecution has proved its case beyondreasonable doubt. The Trial Court further noted that, the place of incidentFis on public road which leads from Bhawani Mandi to Sunel. It is saiddespite efforts, due to non-availability of independent witnesses, S.I.Pranveer Singh (P.W.6) conducted proceedings of search after consentand seizure being temporarily posted as In-charge of Bhawani MandiPolice Station and completed the same. It is observed that though theGsearch appears to have been done superficially, but evidence of policepersonnel cannot be discarded merely because they are departmentalwitnesses. There was no enmity of police personnel with accused andno interest of any witness was shown in the matter. Thus, the TrialCourt with those findings convicted accused Kallu Khan for the offencesunder Sections 8 & 21 of NDPS Act and directed to undergo rigorousH

imprisonment for ten years with fine of Rs. 1,00,000/- and in default, toundergo simple imprisonment for two years.

6. The appellant preferred appeal before High Court and primarilyrest his challenge on the grounds; firstly, S.I. Pranveer Singh (PW6)was not posted as Station In-charge of the concerned police station, assuch he was not authorized to conduct search & seizure. Secondly, noindependent witnesses were associated in the search and seizureproceedings, however the said recovery is vitiated. Thirdly, there areglaring contradictions in the testimonies of prosecution witnesses.

7. Upon hearing, the High Court was unimpressed of the pleasraised by the accused/appellant and even on reappraisal of evidence,concurred with the findings of Trial Court. The High Court said, it was acase of chance recovery while the accused in transit was suspected bythe police patrolling party on public road, hence, recovery proceedingswould be governed by Section 43 of NDPS Act. Nonetheless, the HighCourt reduced the default sentence from two years without disturbingthe findings of conviction and main sentence.8. On perusal of the proceedings of this case, it reveals that on29.10.2021, looking to the surrender certificate, it was observed theappellant had already served the sentence of 10 years. As the appellanthad already served the main sentence, however directed to be releasedon interim bail. The report further indicate that the appellant had beenreleased on bail on 24.04.2021 on depositing the amount of fine of Rs. 1lakh. Thus, the sentence, as awarded, by the Trial Court and confirmedby the High Court, had already been served by the appellant, depositingthe amount of fine.

9. Mr. C.N. Srieekumar, learned senior counsel representing theappellant has strenuously urged that in the present case, the search andseizure was conducted by an unauthorized officer with the help of thepolice witnesses without independent witnesses. He has placed relianceon the judgment of this Court in Union of India vs. Mohanlal andanother (2016)3 SCC 379 and contends that in absence of handling anddisposal of seized narcotic drags/psychotropic substances, the danger ofre-circulation of seized contraband back into the system cannot be ruledout. Learned senior counsel would further argue that in the present case,the prosecution has not proved its case beyond reasonable doubt. Theprocedure, as contemplated under Section 50(1) of NDPS Act, has not

Abeen followed. The ownership of the vehicle is not of the accused,however the link of the vehicle in commission of the offence qua accusedis missing. The contraband article has not been produced in the courtduring evidence. With the said contention, it is argued that the Trial Courtand High Court have committed error to prove the guilt of the appellant,and sentenced him for the charges under Sections 8 & 21 of NDPS Act.B

10. On the other hand, learned counsel representing the Statecontends that it is not case based on recovery of contraband frompersonal search of the accused, in fact, recovery is from the motor cyclei.e. the vehicle used in commission of offence. Therefore, the mandatorycompliance of Section 50 of NDPS Act do not attract in the case. RelianceCis placed on Constitutional Bench judgment of this Court in VijaysinhChandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609. Reliancehas further been placed on the case of State of Punjab vs. BaljinderSingh (2019) 10 SCC 473. It is urged that the recovery is chancerecovery from the motor cycle, used in the commission of offence,Dtherefore, the provisions of Section 43 of NDPS Act would attract.Reliance is placed on the judgment of this Court in S.K. Raju vs. Stateof West Bengal (2018) 9 SCC 708. As per Section 43 of NDPS Act,Pranveer Singh-PW6 is competent for the search and seizure and theHigh Court has rightly recorded the findings on this issue. It is alsocontended that in case, the search and seizure is otherwise proved,Eproduction of contraband article in court is not required. It is urged thatconviction based on the police witnesses without having an independentwitness is not always fatal. In support of the said contention, reliance isplaced on the judgment of this Court in Surinder Kumar vs. State ofPunjab (2020) 2 SCC 563 to urge that merely because the prosecutionFdid not examine any independent witness would not necessarily lead toconclusion 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 re-affirmed. It is lastly urged that the concurrentfindings are not normally required to be interfered with unless there is

perversity. Reliance is placed on the judgments of this Court in State ofGU.P. vs. Krishna Gopal (1988) 4 SCC 302, Ganga Kumar Srivastavavs. State of Bihar (2005) 6 SCC 211, Jarnail Singh (supra) and S.K.Sakkar vs. State of West Bengal (2021) 4 SCC 483. In reply to thecontention of the appellant regarding not having any connection of thevehicle with the accused to prove his guilt, reliance is placed on judgmentH

of this Court in Rizwan Khan vs. State of Chhattisgarh (2020) 9 SCC627, however prayed for dismissal of appeal.

11. After hearing and on perusal of record and the evidencebrought, it is apparent that on apprehending the accused, while makingsearch of the motor cycle, 900 gm of smack was seized to which seizureand sample memos were prepared, as proved by the departmentalwitnesses. In the facts of the case at hand, where the search and seizurewas made from the vehicle used, by way of chance recovery from publicroad, the provisions of Section 43 of the NDPS Act would apply. In thisregard, the guidance may be taken from the judgments of this Court inS. K. Raju (supra) and S.K. Sakkar (supra). However, the recoverymade by Pranveer Singh (PW6) cannot be doubted in the facts of thiscase.

12. Now reverting to the contention that the motor cycle seized incommission of offence does not belong to accused, however seizure ofthe contraband from the motor cycle cannot be connected to prove theguilt of accused. The Trial Court on appraisal of the testimony ofwitnesses, 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 ofthe seizure, proved beyond reasonable doubt, when they were onpatrolling, the appellant came driving the seized vehicle from oppositeside. On seeing the police vehicle, he had taken back the motor cyclewhich he was riding. However, the police team apprehended andintercepted the accused and made the search of vehicle, in which theseized contraband smack was found beneath the seat of the vehicle.However, while making search at public place, the contraband was seizedfrom the motor cycle driven by the accused. Thus, recovery of thecontraband from the motor cycle of the appellant was chance recoveryon public road. As per Section 43 of NDPS Act, any officer of any ofthe departments, specified in Section 42, is having power of seizure andarrest of the accused from public place, or in transit of any narcoticdrug or psychotropic substance or controlled substance. The said officermay detain in search any person whom he has reason to believe that hehas committed an offence punishable under the provisions of the NDPSAct, in case the possession of the narcotic drug or psychotropic substanceappears to be unlawful. Learned senior counsel representing the appellantis unable to show any deficiency in following the procedure or perversity

Ato the findings recorded by the Trial Court, affirmed by the High Court.The seizure of the motor cycle from him is proved beyond reasonabledoubt, therefore, the question of ownership of vehicle is not relevant. Inthe similar set of facts, in the case of Rizwan Khan (supra), this Courtobserved the ownership of the vehicle is immaterial. Therefore, theargument as advanced by learned senior counsel is of no substance andBmeritless.

13. At this state, the argument advanced by the appellant regardingnon-production of contraband in the court due to which benefit of doubtought to be given to accused, is required to be adverted to. In the case ofState of Rajasthan vs. Sahi Ram (2019) 10 SCC 649, this Court heldCthat when the seizure of material is proved on record and is not evendisputed, the entire contraband material need not be placed on record. Itis not case in which the appellant has proved beyond reasonable doubtthat while sending the samples for forensic tests, seals were not intactor the procedure has been materially not followed by protecting the seizedDsubstance or was not stored properly, as specified in the case of MohanLal (supra) in which case the directions were given to be followed onadministrative side. However, in the facts of the case, the said judgmentis not of any help to appellant.

14. Similarly, in the case of Than Kumar vs. State of Haryana(2020) 5 SCC 260, this Court observed that if seizure is otherwise provedEand the samples taken from and out of contraband material were keptintact; the report of forensic expert shows potency, nature and quality ofcontraband material, essential ingredients constituting offence are madeout and the non-production of contraband in the Court is not fatal. Asdiscussed above, the appellant has failed to show that findings recorded

Fby two Courts suffer from any perversity or illegality on the said issueand warrant interference

15. Simultaneously, the arguments advanced by the appellantregarding non-compliance of Section 50 of NDPS Act is bereft of anymerit because no recovery of contraband from the person of the accusedhas been made to which compliance of the provision of Section 50 NDPSG

Act has to follow mandatorily. In the present case, in the search ofmotor cycle at public place, the seizure of contraband was made, asrevealed. Therefore, compliance of Section 50 does not attract in thepresent case. It is settled in the case of Vijaysinh (supra) that in thecase of 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 thepresent case, following the judgments of Surinder Kumar (supra) andBaljinder Singh (supra). Considering the facts of this Court, theargument of non-compliance of Section 50 of NDPS Act advanced bythe counsel is hereby repelled.

16. The issue raised regarding conviction solely relying upon thetestimony of police witnesses, without procuring any independent witness,recorded by the two courts, has also been dealt with by this Court in thecase of Surinder Kumar (supra) holding that merely because independentwitnesses were not examined, the conclusion could not be drawn thataccused was falsely implicated. Therefore, the said issue is also well-settled and in particular, looking to the facts of the present case, whenthe conduct of the accused was found suspicious and chance recoveryfrom the vehicle used by him is made from public place and provedbeyond reasonable doubt, the appellant cannot avail any benefit on thisissue. . In our view, the concurrent findings of the courts does not callfor interference.

17. It is to observe that as per the judgment of Krishna Gopal(supra), it is held that interference in exercise of the power under Article136 of the Constitution of India can only be called for when the judgmentof the lower court is vitiated by gross error. This Court is having anoccasion to reconsider the said issue in the case of Ganga KumarSrivastava (supra), whereby it is settled that interference can be madewhen question of law of general public importance arises or decisionshocks the conscience of the Court. It is held that in case, the finding isvitiated by any error of law or procedure or found contrary to the principlesof natural justice, and misreading of the evidence, or where theconclusions of the High Court are manifestly perverse and unsupportablefrom the evidence on record, interference under Article 136 can be calledfor. The said principle has again been reiterated in the case of JarnailSingh (supra), reaffirming the law as laid down in Ganga KumarSrivastava (supra). Recently also, in the case of S.K. Sakkar (supra),this Court has reaffirmed the issue of scope of interference in exerciseof power by this Court under Article 136 of the Constitution of India .

18. In view of the foregoing discussion, looking to the facts of thepresent case, in our considered opinion, the findings concurrently recordedby the Courts holding the accused guilty for the charges and to directhim to undergo sentence as prescribed, do not suffer from any perversity,illegality, warranting interference by this Court.

[2021] 9 S.C.R.

A19. Accordingly, we do not find any merit in this appeal. Hence, itis dismissed. As the appellant has already served the sentence so awardedand released after deposit of the amount of fine, therefore, no furtherdirections need be issued.

BDivya Pandey

Appeal dismissed.