Rizwan Khan vs The State Of Chhattisgarh on 10 September, 2020


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Supreme Court of India

Rizwan Khan vs The State Of Chhattisgarh on 10 September, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                          REPORTABLE
                                   IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION
                                  CRIMINAL APPEAL NO. 580 OF 2020
                                (Arising out of S.L.P.(Criminal) No.4422/2019)


         Rizwan Khan                                           …Appellant

                                          Versus

         The State of Chhattisgarh                             …Respondent


                                              JUDGMENT

M.R. SHAH, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

Judgment and Order dated 01.10.2018 passed by the High Court

of Chhattisgarh at Bilaspur in Criminal Appeal No. 881/2012, by

which the High Court has dismissed the said appeal preferred by

the appellant herein – original accused No.1 and has confirmed

the Judgment and Order of Conviction and Sentence passed by
Signature Not Verified

the learned Special Court convicting the accused – appellant no.1
Digitally signed by
MEENAKSHI KOHLI
Date: 2020.09.10
13:29:35 IST
Reason:

for the offence under Section 20(b)(ii)(B) of Narcotic Drugs &

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Psychotropic Substances Act, 1985 (hereinafter referred to as the

‘NDPS Act’) and sentencing him to undergo five years rigorous

imprisonment and fine of Rs.25,000/­, in default, to undergo

further one year’s rigorous imprisonment, original accused no.1

has preferred the present appeal.

3. The facts leading to the present appeal are, that the

appellant – accused no.1 and one another – Pukhraj were

charged for the offence under Section 20(b)(ii)(B) of the NDPS Act,

having in their possession 20 kg each prohibited Narcotic

Substance – Ganja. As per the case of the prosecution, 20 kg of

Ganja was recovered from the possession of the appellant from

the motor cycle. Nothing objectionable was found from the

person of the accused. Accused were informed about Section 50

of the NDPS Act through a notice and were also told about their

legal rights that if they want their search was to be done either by

a Gazetted Officer or Judicial Magistrate of First Class or any

other investigating officer. After giving permission that the

search can be conducted by any investigating officer, accused

was asked to open the sack kept on his motor cycle and on

opening the same, a bag of Ganja weighing 20kg was found.

Panchnama was made of seizure. Samples of narcotics recovered

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from the accused were tested by smelling, burning and tasting it

and was found to be Ganja. An identification panchnama was

prepared. The Ganja recovered from the accused was about 20

kg, out of which two packets each of about 100 gm were made for

sampling and then the weight panchnama was made. The

samples were sealed and an entry was made in the seizure list on

which sample seal was marked. Samples were marked as ‘B1’

and ‘B2’ and rest of the seized substance was marked as ‘B’.

The accused was arrested along with the other accused from

whom also the contraband narcotic substance was found. At this

stage, it is required to be noted that ASI J.K. Sen (PW4) received

the information and it was recorded by him in Dehati Nalsi and

FIR in the police station. However, subsequently, all further

investigation was carried out by Police Inspector Ashish Shukla –

PW5, who investigated the matter 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 narcotic substance

made were sent to the laboratory for testing through constable.

The substance seized was found to be Ganja. On completion of

the investigation against the accused under the NDPS Act,

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appellant and one another – Pukhraj were chargesheeted for the

offence under Section 20(b)(ii)(B) of the NDPS Act and another co­

accused Rakesh Kumar was charged for the offence under

Section 20(b)(ii)(C) of the NDPS Act. All the accused pleaded not

guilty and therefore they came to be tried for the aforesaid

offences. In the present case, we are concerned with original

accused no.1 – Rizwan Khan and therefore we shall consider the

case against Rizwan Khan only;

3.1 To prove the case against the accused, the prosecution

examined eight witnesses, out of which PW1 – Bholu and PW6 –

Kanhaiya are the independent witnesses. PW3 – Sudeep Prasad

Mishra is the constable who had taken the samples to FSL. PW4

was the police officer 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 evidence, such as,

seizure memo, FSL report, etc. After closure of the evidence on

behalf of the prosecution, further statement of the accused under

Section 313, Cr.P.C. was recorded. The case on behalf of the

appellant – original accused no.1 was of total denial.

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4. After conclusion of the trial and on appreciation of the

evidence on record, the learned Special Judge held the accused

guilty for the offence under Section 20(b)(ii)(B) of the NDPS Act

and sentenced him to undergo five years rigorous imprisonment

with fine of Rs.25,000/­, in default, to undergo further one year’s

rigorous imprisonment.

5. Feeling aggrieved and dissatisfied with the impugned

judgment and order of conviction and sentence passed by the

learned Special Judge, the appellant herein preferred an appeal

before the High Court. Before the High Court, one of the main

submissions on behalf of the appellant was that as ASI J.K.Sen

(PW4), who seized the articles and lodged FIR also participated in

investigation and therefore the complainant and the investigator

being the same, in view of the decision of this Court in the case of

Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627, the

accused is entitled to acquittal. Number of other submissions

were also made before the High Court on behalf of the accused,

as mentioned in paragraph 4 of the impugned judgment and

order passed by the High Court.

5.1 After having noted that ASI J.K. Sen (PW4) only seized the

articles and lodged the FIR and thereafter no further investigation

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was carried 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 made on behalf of the respective

parties, by the impugned judgment and order, the High Court

has dismissed the said appeal preferred by accused no.1 and has

confirmed the judgment and order of conviction and sentence

passed by the learned Special Judge. Hence, the present appeal.

6. Learned counsel appearing for the appellant – original

accused no.1 has made the following submissions:

i) that mandatory provisions of Section 42 of the NDPS

Act has not been complied with;

ii) that both the learned Special Court and the High

Court have committed a grave error in convicting the

appellant on the sole testimony of the police officers;

iii) that panchnama witnesses have not supported the

version of the prosecution and the person who weighed the

quantity of Ganja is also not supported the case of the

prosecution;

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iv) that out of the eight witnesses examined, the

independent witnesses have not supported the prosecution

story and were declared hostile;

v) that alleged seizure of contraband from the

appellant/accused from his motor cycle is also doubtful as

its number on the different documents is not same; that in

Ex. P/10 its number is mentioned as 8499 while in Ex. P/16

and P/37 its number is mentioned as 4489; that samples

seized from the appellant/accused were marked as ‘B1’ and

‘B2’, whereas the letter sent to Senior Superintendent of

Police as per Ex. P/33 shows article ‘A1’ was seized from the

accused and therefore it is not proved that the contraband

which is seized from the appellant/accused was sent for

examination; that the sample was not deposited in safe

custody and it is not mentioned in malkhana register;

vi) that non­recovery of the motor cycle is also fatal to the

case of the prosecution;

vii) that the seal was not kept in safe custody as PW7 has

stated that he did not made any entry of seal in the register

of malkhana;

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vii) that no sample of the seal was sent along with the

samples to the FSL for the purpose of comparing with the

seal appearing on the samples of contraband allegedly

recovered from the appellant/accused;

viii) that non­examination of constables who accompanied

PW4 at the time of recovery also creates serious doubt on the

prosecution case.

6.1 Learned counsel appearing for the appellant/accused

has further submitted that there are such a large number of

discrepancies, if a cumulative effect thereto is taken into

consideration on the basis of the permissive inference would be

that serious doubts are created with respect to the prosecution’s

endeavour to prove the fact of possession of contraband by the

appellant/accused;

6.2 Learned counsel appearing for the appellant/accused

has further submitted that by now the appellant/accused has

already undergone three years of sentence out of five years

awarded to him. It is prayed that as Section 20(b)(ii)(B) of the

NDPS Act does not provide for any minimum sentence and if this

Court is not satisfied with the submissions of the appellant on

merits, then in that case, a lenient view may be taken and

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sentence of five years may be reduced to the period already

undergone by the appellant/accused.

7. The present appeal is vehemently opposed by the learned

counsel appearing on behalf of the respondent – State of

Chhattisgarh. It is vehemently submitted by the learned counsel

appearing on behalf of the respondent – State that in the present

case on appreciation of evidence and after considering the fact

that the investigating officer has taken all precautions and

measures which are required to be taken under the provisions of

the NDPS Act, both the courts below have rightly convicted the

accused for the offence under Section 20(b)(ii)(B) of the NDPS Act;

7.1 It is further submitted that in the present case the

prosecution has established and proved beyond doubt,

compliance of the procedure prescribed under the NDPS Act,

more particularly, Sections 42, 50 and 55 of the NDPS Act. It is

submitted that the compliance of the aforesaid provisions has

been established and proved by the prosecution by examining the

witnesses, PW3, PW4, PW5, PW7 and PW8;

7.2 It is further submitted that though in the present case the

independent witnesses (Panchnama witnesses) have turned

hostile, that does not adversely affect the case of the prosecution.

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It is submitted that the prosecution has been successful in

proving the case against the accused by examining the reliable

witnesses, i.e., PW3, PW4, PW5, PW7 and PW8. It is submitted

that merely because the independent witnesses who have signed

the seizure documents turned hostile, the evidence of other

witnesses, may be police officials, cannot be discarded. It is

submitted that only on the independent witnesses turning

hostile, the entire case of the prosecution cannot be disregarded;

7.3 It is further submitted that in the present case the

prosecution witnesses fully supported the case of the prosecution

and they are found to be trustworthy and no question of enmity

came up between them and the accused persons. Reliance is

placed upon the decision of this Court in 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 of Himachal Pradesh v.

Pradeep Kumar, (2018) 13 SCC 808;

7.4 Now so far as the submission on behalf of the accused that

the complainant and the investigating officer was the same and

therefore the 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 the investigation has been carried out by police
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inspector Ashish Shukla, PW5 and Shri J.K. Sen, PW4 only

recorded the FIR. It is submitted that even otherwise in view of

the recent decision of this Court in the case of Mukesh Singh v.

State (Narcotic Branch) (Special Leave Petition (Criminal) Diary

No.39528/2018, decided on 31.08.2020) under the NDPS Act, the

decision of this Court in the case of Mohan Lal (supra) is not a

good law;

7.5 It is further submitted that in the present case finding of

guilt of 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 forensic report. It is submitted that in the

present case the prosecution case does not rest solely on the

testimony of PW4 as is submitted on behalf of the accused;

7.6 Now so far as the submission on behalf of the accused that

as in the memorandum of Superintendent of Police the sample is

written as ‘A1’, whereas recovery from the appellant – Rizwan

Khan was marked as ‘B1’ and ‘B2’ and therefore there are

material contradictions and therefore it is doubtful whether the

samples which were seized from the appellant – accused were

sent to the FSL, it is vehemently submitted that in fact there was
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a clerical error in numbering of sample in memorandum of

Superintendent of Police. It is submitted that otherwise the

records clearly established that recovery from Rizwan Khan was

marked as ‘B1’ and ‘B2’ and the treasury record also established

that narcotic 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 to

prove the ownership of the motor cycle (vehicle) and/or failed to

recover the motor cycle subsequently, does not vitiate the

prosecution case as the accused persons were found on the spot

with the contraband articles in the vehicle. It is submitted that

therefore the commission of an offence under the NDPS Act is

proved against them. It is submitted that it is not a case where

ownership of the vehicle is to be determined but commission of

an offence under the NDPS Act was to be ascertained;

7.8 Making the above submissions and relying upon the

aforesaid decisions of this Court, it is prayed to dismiss the

present appeal.

8. We have heard the learned counsel for the respective parties

at length.

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8.1 We have scanned and re­appreciated the entire evidence on

record. We have also considered the findings recorded by the

learned Special Court, confirmed by the High Court.

8.2 Having gone through the entire evidence on record and the

findings recorded by the courts below, we are of the opinion that

in the present case the prosecution has been successful in

proving the case against the accused by examining the witnesses

PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid

witnesses are police officials and two independent witnesses who

were panchnama witnesses had turned hostile. However, all the

aforesaid police witnesses are found to be reliable and

trustworthy. All of them have been thoroughly cross­examined

by the defence. There is no allegation of any enmity between the

police witnesses and the accused. No such defence has been

taken in the statement under Section 313, Cr.P.C. There is no

law that the evidence 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

cannot be rejected on the ground of non­corroboration by

independent witness. As observed and held by this Court in

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catena of decisions, examination of independent witnesses is not

an indispensable requirement and such non­examination is not

necessarily fatal to the prosecution case, [see Pardeep Kumar

(supra)].

In the recent decision in the case of Surinder Kumar v. State

of Punjab, (2020) 2 SCC 563, while considering somewhat similar

submission of non­examination of independent witnesses, while

dealing with the offence under the NDPS Act, in paragraphs 15

and 16, this Court observed and held as under:

“15. The judgment in Jarnail Singh v. State of Punjab (2011) 3
SCC 521, relied on by the counsel for the respondent State also
supports the case of the prosecution. In the aforesaid judgment,
this Court has held that merely because prosecution did not
examine any independent witness, would not necessarily lead to
conclusion that the accused was falsely implicated. The evidence
of official witnesses cannot be distrusted and disbelieved, merely
on account of their official status.

16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was
held as under: (SCC p. 655)
“It is an archaic notion that actions of the police officer should
be approached with initial distrust. It is time now to start
placing at least initial trust on the actions and the documents
made by the police. At any rate, the court cannot start with
the presumption that the police records are untrustworthy.

As a proposition of law, the presumption should be the other
way round. That official acts of the police have been regularly
performed is a wise principle of presumption and recognised
even by the legislature.”

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Applying the law laid down by this Court on the evidence of

police officials/police witnesses to the facts of the case in hand,

referred to hereinabove, we are of the opinion as the police

witnesses are found to be reliable and trustworthy, no error has

been committed by both the courts below in convicting the

accused relying upon the deposition of the police officials.

9. Now so far as the submission on behalf of the accused with

respect to non­compliance of the procedure prescribed under

Section 42 of the NDPS Act is concerned, on considering the

deposition of PW8 (Ishwar Prasad Verma), compliance of the

procedure prescribed under Section 42 of the NDPS Act has been

established and proved.

9.1 Similarly, compliance under Section 55 of the NDPS Act has

also been established and proved by the prosecution by

examining PW3 and PW7.

9.2 It has been established and proved that the samples which

were seized and sealed were sent to the FSL. From the record, it

establishes that the recovery from Rizwan Khan was marked as

‘B1’ and ‘B2’ and the treasury record also that the narcotic

substances recovered from Rizwan Khan were shown as ‘B1’ and

‘B2’. There seems to be some clerical error in numbering of

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sample in memorandum of Superintendent of Police and the

same was mentioned as ‘A1’. However, it has been established

and proved that the samples which were seized and sealed from

Rizwan were sent to the FSL. The aforesaid aspect has been

dealt with by the learned Special Court in its judgment in

paragraphs 25 and 26.

10. Now so far as the submission on behalf of the accused that

as PW4 – J.K. Sen who recorded the FIR, he himself was the

investigating officer and therefore the trial is vitiated is

concerned, it is required to be noted that initially learned counsel

appearing on behalf of the accused made the above submission

relying upon the decision of this Court in the case of Mohan Lal

(supra). However, in view of the recent decision of this Court in

the case of Mukesh Singh (supra) overruling the decision of this

Court in the case of Mohan Lal (supra), learned counsel appearing

for the accused has not pressed the above ground. Even

otherwise, it is required to be noted that in the present case the

aforesaid issue does not arise as after the FIR was recorded by

Shri J.K. Sen, PW4, thereafter the case was investigated by

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Ashish Shukla, PW5. Therefore, on facts, both the complainant

and the investigating officer were different.

11. Now so far as the submission on behalf of the accused that

the ownership of the motor cycle (vehicle) has not been

established and proved and/or that the vehicle has not be

recovered is concerned, it is required to be noted that in the

present case the appellant and the other accused persons were

found on the spot with the contraband articles in the vehicle. To

prove the case under the NDPS Act, the ownership of the vehicle

is not required to be established and proved. It is enough to

establish and prove that the contraband articles were found from

the accused from the vehicle purchased by the accused.

Ownership of the vehicle is immaterial. What is required to be

established and proved is the recovery of the contraband articles

and the commission of an offence under the NDPS Act?

Therefore, merely because of the ownership of the vehicle is not

established and proved and/or the vehicle is not recovered

subsequently, trial is not vitiated, while the prosecution has been

successful in proving and establishing the recovery of the

contraband articles from the accused on the spot.

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12. Now so far as the prayer on behalf of the accused to take a

lenient view and to impose the lesser punishment than the

sentence imposed by the learned Special Court, confirmed by the

High Court, is concerned, considering the object and purpose of

the enactment of the NDPS Act and the fact that the sentence

provided under the Act for the offence in question is rigorous

imprisonment for a term which may extend to 10 years and with

fine which may extend to one lakh rupees and the Court has

imposed sentence of five years rigorous imprisonment only, the

prayer to take a lenient view is rejected as the learned Special

Court itself has taken a lenient view.

13. In view of the above and for the reasons stated above, we

are of the firm view that both the courts below have rightly

convicted the accused for the offence under Section 20(b)(ii)(B) of

the NDPS Act. We are in complete agreement with the findings

recorded by the learned Special Court and confirmed by the High

Court and the conviction recorded by both the courts below. We

see no reason to interfere with the conviction of the accused for

the offence under Section 20(b)(ii)(B) of the NDPS Act. In the

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circumstances, the present appeal fails and the same deserves to

be dismissed and is accordingly dismissed.

……………………………….J.

[ASHOK BHUSHAN]

……………………………….J.

                                   [R. SUBHASH REDDY]


NEW DELHI;                         ……………………………….J.
SEPTEMBER 10, 2020.                [M.R. SHAH]




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