Kallu Khan vs The State Of Rajasthan

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

as "NDPS Act") and sentenced to undergo rigorous Sanjay Kumar Date: 2021.12.11 15:04:41 IST Reason:

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.

2 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

3 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

4 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

another (2016)3 SCC 379 and contends that in absence of

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

7 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

Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1

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

West Bengal (2018) 9 SCC 708. As per Section 43 of NDPS

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.

State of Punjab (2020) 2 SCC 563 to urge that merely because

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, Ganga Kumar Srivastava vs. 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 the contention

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

Chhattisgarh (2020) 9 SCC 627, however prayed for dismissal

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 S. K. Raju (supra) and S.K. Sakkar (supra). However,

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

11 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

12 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 Mohan Lal (supra) in which case the

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

Haryana (2020) 5 SCC 260, this Court observed that if seizure

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

13 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 Vijaysinh (supra) that in the case 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

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. 14

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 Surinder Kumar (supra)

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

Gopal (supra), it is held that interference in exercise of the

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 Ganga Kumar Srivastava (supra),

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

16 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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