Iqbal Moosa Patel vs State Of Gujarat

Iqbal Moosa Patel ...Appellant

Versus

State of Gujarat ...Respondent

With

(Criminal Appeal No.1574 of 2009 and Criminal appeal No.__________of 2011 (Arising out of SLP (Crl.) No.5583 of 2009)

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals by special leave are directed against

a common judgment and order passed by the High Court of

Gujarat whereby Criminal Appeals No.2327 of 2006, 343 of

2007, 754 of 2007 and 1235 of 2007 have been dismissed

and the conviction of the appellants for offences

punishable under Section 8(c), read with Sections 21 and 2 29 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter referred to as "the NDPS Act") upheld.

While appellants in Criminal Appeals No.2327 of 2006 and

754 of 2007 have been sentenced to undergo twelve years

of rigorous imprisonment with a fine of Rs.2 lakhs, and

in default to further undergo simple imprisonment for two

years, appellants in Criminal Appeals No.343 of 2007 and

1235 of 2007 have been sentenced to undergo ten years of

rigorous imprisonment with a fine of Rs.1 lakh, and in

default to further undergo simple imprisonment for one

year. The facts giving rise to the conviction and

sentence of the appellants have been set out in detail by

the High Court in the order under appeal hence need not

be detailed over again except to the extent it is

absolutely necessary to do so. Briefly stated the

prosecution case is that a certain secret information was

received by Mr. K.C Chudasma, Inspector, Anti-Terrorist

Squad which was passed on to Mr. P.S.Tomar, Zonal

Director, Narcotics Control Bureau, Ahmedabad. The

information suggested that Accused No.2 Mr. Hemaram

Chaudhary was the kingpin of a syndicate involved in

smuggling and interstate trafficking of narcotic

substances. Accused No.3-Shri Derajram Jat was the man

allegedly carrying out the operations at the instance of 3

the said Mr. Hemaram Chaudhary. The information so

received was used to intercept and search a truck bearing

registration number RJ-04-G-1305 on 29thJune, 2001 at Lal

Bahadur Shashtri Bridge, Pirana area in the city of

Ahmedabad while the same was returning from Bharuch. The

truck was driven by accused no.4-Ashuram Durgaram

Choudhary while accused no.3-Derajram Jat was

accompanying him. The search of the truck led to the

seizure of psychotropic drugs from the aforesaid two

persons who revealed that the consignment in question had

been supplied by Mr. Hemaram Choudhary-accused no.2. On

the basis of the information so collected and the

disclosure made by the driver of the truck and Derajram

Jat-accused no.3. Appellant-Iqbal Moosa Patel was taken

into custody and his statement under Section 67 of the

NDPS Act recorded. A raid was then carried out on

7th July, 2001 at village Varadia, Khadaki Street,

District Bharuch, which led to the seizure of heroin

weighing 3.056 kgs. and cash of Rs.1,17,500/- from the

residence of appellant No.1 Iqbal Moosa Patel. In his

statement recorded under Section 67 of the N.D.P.S. Act

the said accused admitted having purchased four packets

of brown sugar from one Master and Bhaikhanbhai both

residents of Badmer in Rajasthan in the month of March 4

2001, out of which one packet had already been sold to

one Shakur while the remaining three were seized by the

respondent from his residence as mentioned above. On the

basis of the material placed before the Trial Court the

accused persons were charged with different offences to

which the accused pleaded not guilty and claimed a trial.

3. In support of its case the prosecution examined

eight witnesses apart from relying upon several

documents. In their statements under Section 313 of the

Cr.P.C., the accused denied their involvement and alleged

that their statements under Section 67 of the NDPS Act

had been recorded under duress. Accused also examined as

many as fourteen witnesses in their defence.

4. The Trial Court eventually held all the accused

guilty and convicted and sentenced them to undergo

imprisonment for varying terms. Aggrieved by the

judgment and order passed by the Sessions Court the

appellants preferred appeals before the High Court which,

as noticed earlier, have been dismissed by the High

Court, upholding the judgment and order passed by the

Trial Court. The present appeals by special leave assail

the said judgment and order of the High Court. 5

5. We have heard learned counsel for the parties at

some length and perused the record. Apart from the oral

submissions made at the bar; written submissions have

also been filed on behalf of appellants in Criminal

Appeals No.1231-1232 of 2009 and No.1574 of 2009.

According to learned counsel for Ashuram Durgaram

Chaudhary appellant in Criminal Appeal No.1574 of 2009

and the written submissions filed by him the truck driven

by the said appellant was no doubt intercepted and

searched on 29th June, 2001 but nothing incriminating was

found even when the truck was unloaded and searched

thoroughly and all the relevant papers such as insurance,

permit etc. recovered from the driver's cabin. A bag was

no doubt recovered from under the seat on which the

accused No.3-Derajram Jat was sitting who admitted before

the raiding party that the same belonged to him. Written

submissions further state that four packets of heroin

were found from the said bag eventually leading to the

filing of the charge-sheet against the said accused no.3-

Derajram Jat including appellant-Ashuram Durgaram

Chaudhary-accused no.4 the driver of the truck. It is

contended that appellant-Ashuram Durgaram Chaudhary has

been falsely implicated as he had no knowledge of the 6

fact that accused no.3-Derajram Jat was carrying any

contraband in his bag which the latter had kept under his

seat. Para 3 of the written submissions filed on behalf

of the appellant- Ashuram Durgaram Chaudhary reads as

under:

"3. That the petitioner herein has been falsely implicated in the matter. The other accused persons are stranger to the petitioner. He has nothing to do with the other accused person or with the goods seized from them. On the date of incidence the petitioner herein had no knowledge of the fact that accused no.3 was carrying any contraband with him in his bag which was kept under the seat on which the accused no.3 was sitting. The entire story of the prosecution is false and concocted as is clear from the judgment of the Trial Court which eschewed the statement recorded under section 67 of the NDPS Act and also of Mr. Tomar (PW-5). The Evidence of the Panch witnesses to the recovery shows that there was no ring of truth in the prosecution story."

6. On behalf of the appellant-Iqbal Moosa Patel it

was, inter alia, contended that the prosecution story

was totally false and that the Trial Court had rightly

rejected as unworthy of any credit the statement

allegedly recorded under Section 67 of the NDPS Act. It

was further submitted that out of two Panch witnesses

PW3-Jignesh Jaswantbhai Modi had not supported the 7

prosecution case including the recovery of the

contraband from the residence of the appellant-Iqbal

Moosa Patel. Relying upon the decision of this Court

in Jagdish v. State of M.P. 2003 (9) SCC 159 the

appellant claimed benefit of doubt. It was further

argued that the deposition of Mr. Bhalla, the

Investigating Officer was not reliable and could not be

made a basis for finding the appellant-Iqbal Moosa Patel

guilty. The statement of the appellant-Iqbal Moosa Patel

had been according to the learned counsel recorded after

the search of the residence of the appellant had been

completed. It was contended that the appellant-Iqbal

Moosa Patel is an agriculturist and a law-abiding

citizen of India who had already spent 9= years in jail

out of a total 12 years to which he has been sentenced.

7. Learned counsel for the remaining appellants

submitted that the prosecution had failed to prove its

case beyond a reasonable doubt and the evidence adduced

by it suffered from serious contradictions which made it

unsafe to place any reliance upon the same.

8. On behalf of the respondents it was argued that on

the basis of the secret information received by the 8

Anti-Terrorist Squad which was passed on to the

Narcotics Control Bureau (NCB) Ahmedabad, a large

quantity of heroin weighing 3.056 kgs. was seized from

the truck in which accused no.3-Derajram Jat and accused

no.4-Ashuram Durgaram Chaudhary were traveling. All the

accused persons had made statements revealing that the

buyer of the consignment was one Shri Iqbal Moosa Patel-

accused no.1 whom they could not contact and, therefore,

they were returning back to Rajasthan. It was also

stated that a consignment of 4 kgs. was earlier supplied

to accused no.1-Iqbal Moosa Patel sometime around mid

March 2001 which led the NCB to raid the house of

accused no. 1-Iqbal Moosa Patel. It was further

submitted that pursuant to the said information the

house of appellant-accused no.1-Iqbal Moosa Patel was

raided on 7th July, 2001 that led to the seizure of 3

kgs. of heroin and a cash of Rs.1,17,500/- It was

submitted that special leave petition (Crl.) No.8029 of

2008 filed against the very same judgment by accused

no.2-Hemaram Chaudhary having been dismissed by this

Court, there was no reason for this Court to take a

different view, in the present appeals.

9

9. We have given our careful consideration to the

submissions made at the bar including those made in

writing. The Trial Court as also the High Court have

concurrently come to the conclusion that the statements

made by all the accused persons except accused no.1-

Iqbal Moosa Patel were voluntary and reliable. So also

the Trial Court and the High Court have held that the

recovery of the narcotic substance from the truck driven

by appellant no.4-Ashuram Durgaram Chaudhary in which

the appellant no.3 was also traveling had been clearly

established. The recovery of the narcotic substance from

the house of the appellant-Iqbal Moosa Patel has also

been held by both the Courts below to have been proved

beyond a reasonable doubt. The assertion of appellant-

Iqbal Moosa Patel that the said substance was planted to

implicate him has been rejected by the Trial Court in

the following words:

"However, the Court is of the firm belief that considering the evidence of Mr. Bhalla, who was an intelligence officer at the relevant point of time and from other documentary evidence and other proved circumstances, there is no reason as to why visit of officer of NCB at the residence of A-1 at Bharuch should not be believed. Going by the version of DW-13, wife of A-1 also said that these officers had visited on 07.07.2001 her residence alongwith her 10

husband although she had charged them for ransacking the entire household and other belongings, but this further fortifies factum of visit and the search having been carried out and also the seizure of 3.056 kgs. of heroin. The Court also has to bear in mind that had there been an intention to concoct and plant heroin so as to implicate A-1, the commercial quantity as per the law is only 250 gms. and there would not have been any need for NCB to keep moiri than 250 gms. of heroin and the same could have been also done at Mumbai rather bringing him to his own residence and thereby creating an evidence for the defence with regard to the treatment meted out to the accused and other facts. As this house where the search had been carried out belongs to A-1 and this huge quantity of heroin had been seized from his bed room, vivid description of which has been given in the cross-examination by Mr. Bhalla, there is earthly no reason not to believe him on this vital aspect."

10. The High Court affirmed the above finding and

rejected the contention that the appellants were

entitled to the benefit of doubt for in the opinion of

the High Court the charge framed against the appellant

had been satisfactorily proved.

11. There is, in our opinion, no error or perversity in

the view taken by the Trial Court or the High Court for

that matter to warrant our interference under Article

136 of the Constitution of India. The prosecution had on 11

the depositions of the witnesses examined by it and the

documents produced at the trial, established that a raid

based on the secret information received by the Anti-

Terrorist Squad which was passed on to the Narcotic

Control Bureau indeed conducted and truck bearing

registration number RJ-04-G-1305 intercepted and

searched. In the course of the said search 3.056 kgs. of

heroin was recovered from the possession of accused

no.4-Ashuram Durgaram Chaudhary who was driving the

truck and accused no.3-Derajram Jat accompanying

him. It is noteworthy that the fact that the truck was

intercepted and searched by the authorities was not

disputed by appellant-Ashuram Durgaram Chaudhary the

driver of the said truck nor is it disputed that 3.056

kgs. of heroin was recovered from the bag that was kept

under the seat on which accused no.3-Derajram Jat

traveling with him in the truck was sitting. Para 3 of

the written submissions which we have extracted earlier

simply suggests that the appellant-Ashuram Durgaram

Chaudhary the driver of the truck was not aware of the

contents of the bag. The evidence on record totally

belies the version belatedly advanced by both these

appellants, that both or any one of them were/was

unaware of the presence of the bag or its contents. 12

12. So also the seizure of the contraband from the

residence of appellant-Iqbal Moosa Patel in Bharuch in a

raid conducted on 7th July, 2001 is established on the

basis of the evidence on record. The argument urged on

behalf of the appellant-Iqbal Moosa Patel that the house

from where recovery was made was not in his exclusive

possession as other members of his family were also

living in the same has also been correctly repelled.

The Trial Court has in this regard observed:

"With the seizure of narcotic substance from the bed room of A-1, which had no access except to the accused and, therefore, it is to be held that A-1 alone was in possession and control as far as seizure on 7.7.2001 is concerned and for the seizure of 29th it was clearly found from the custody of A-3 and within the knowledge of A-4, at the instance of A-2, therefore, invoking these provisions under Section 35 and Section 54 of NDPS Act qua these accused, it becomes their duty to prove beyond reasonable doubt that they were not in possession even by leading the evidence given by defence witnesses and in the opinion of this they have failed to so prove and nullify the case of prosecution as had been proved on record."

13. That brings us to the question whether the

appellants could be given the benefit of doubt having

regard to the nature of the evidence adduced by the

prosecution against them. We do not think that the

appellants have made out a case for grant of any such 13

benefit. It is true that the prosecution is required to

establish its case beyond a reasonable doubt, but that

does not mean that the degree of proof must be beyond a

shadow of doubt. The principle as to what degree of

proof is required is stated by Lord Denning in his

inimitable style in Miller v. Minister of Pensions

(1947) 2 ALL ER 272:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....

It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."

14. Reference may also be made to the decision of this

Court in Sucha Singh & Anr. v. State of Punjab (2003) 7

SCC 643 where this Court has reiterated the principle in

the following words:

".......Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a 14

hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish."

15. In the totality of the above circumstances and

having regard to the fact that the Trial Court as also

the High Court have examined all aspects of the matter

and minutely looked into various facets of the case set

up by the prosecution and that by the defence including

the defence evidence adduced at the trial, we see no

reason to interfere. As rightly pointed out by the

respondent an appeal arising out of the same judgment

and order filed by accused no.2-Hemaram Chaudhary has

already been dismissed by this Court. That being so we

do not see any reason much less a compelling one to

strike a discordant note. In the result these appeals

also fail and are hereby

dismissed.

15

.................................J.

(MARKANDEY KATJU)

.................................J. (T.S. THAKUR) New Delhi January 12, 2011