Firdoskhan Khurshidkhan vs The State Of Gujarat

2024 INSC 351 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA 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

JUDGMENT

Mehta, J.

1. These two appeals arise out of a common judgment dated 30th

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

appellants herein had assailed the judgment dated 6th 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

1 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

morning of 30th 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

2 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

3 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

4 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)

on 9th 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

during the intervening night of 9th and 10th 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

5 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

available on record, the trial Court vide judgment dated 6th 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

High Court of Gujarat vide impugned judgment dated 30th

November, 2009.

9. Since both the appeals arise out of a common judgment, they

have been heard analogously and are being decided together.

6 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.

7

(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

8 from consideration. In this regard, he placed reliance on

the judgment rendered by this Court in the case of Tofan

Singh v. State of Tamil Nadu1.

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

1 (2021) 4 SCC 1

9 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

10 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

11 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.

12

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.,

13 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.

14

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

15 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

16 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

17 first time identification of Firdoskhan(A-2) by Vikram Ratnu(PW-3)

during his evidence in the Court recorded on 14th 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.

18

(b) Criminal Appeal No. 2044 of 2010 preferred by appellant

Firdoskhan(A-2) is allowed. His conviction as recorded by the trial

Court vide judgment dated 6th June, 2006 and affirmed by the High

Court vide judgment dated 30th 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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