IQBAL MOOSA PATELversusSTATE OF GUJARAT

                     [2011] 2 S.C.R. 121


                   IQBAL MOOSA PATEL                               A
                               v.
                    STATE OF GUJARAT
         (Criminal Appeal Nos.1231-1232 of 2009)
                     JANUARY 12, 2011
                                                                   B
     [MARKANDEY KATJU AND T.S. THAKUR, JJ.]

     Narcotic Drugs and Psychotropic Substances Act, 1985
- s.B(c) r/w ss.21 and 29 - Smuggling and interstate trafficking
of narcotic substances - A-3 allegedly carrying out operations     C
at the instance of A-2 - Large quantity of heroin seized from
t.uck driven by A-4 in which A-3 was a/so traveling - A-3 and
A-4 made statements revealing that buyer of the consignment
was A-1 - Raid carried out which led to seizure of heroin and
cash from residence of A-1 - Trial court convicted all the         D
accused - High Court upheld the conviction - Appeals by A-
 1, A-3 and A-4 - Held: The prosecution had established that
raid was conducted and the truck driven by A-4 intercepted
and searched in course of which heroin was recovered from
a bag kept under the seat on which A-3 was sitting - The           E
evidence on record totally belies the version belatedly
advanced by both A-3 and A-4, that both or any one of them
were/was unaware of the presence of the bag or its contents
- Seizure  of  contraband from the residence of A-1 Tn raid is
a/so established on the basis of evidence on record - The          F
accused-appellants cannot be given the benefit of doubt -
Both trial court as a/so the High Court minutely examined all
aspects of the matter - No reason to interfere, all the more
so when an appeal filed by A-2 against the judgment of High
Gour.: '1as been already dismissed by Supreme Court -              G
Constitut1L~11 of India, 1950 - Article 136.

    Criminal Jurisprudence - Proof beyond reasonable
doubt - Degree of proof required - Held: It is true that the
prosecution is required to establish its case beyond a
                          121                                      H
    122       SUPREME COURT REPORTS           [2011) 2 S.C.R.

A reasonable doubt, but that does not mean that the degree of
    proof must be beyond a shadow of doubt.

       According to the prosecution, A-2 was the kingpin of
  a syndicate involved in smuggling and interstate
  trafficking of narcotic substances and A-3 was carrying
8
  out the operations at the instance of A-2.

      On the basis of secret information received by the
  Anti-Terrorist Squad which was passed on to the
  Narcotics Control Bureau (NCB), a large quantity of
C heroin was seized from a truck driven by A-4 in which A-
  3 was also traveling. A-3 and A-4 made statements
  revealing that the consignment in question had been
  supplied by A-2 and that the buyer of the consignment
  was A-1. A-1 was taken into custody and his statement
D under Section 67 of the Narcotic Drugs and Psychotropic
  Substances Act, 1985 (NDPS Act) was recorded. A raid
  was then carried out which led to the seizure of heroin
  and cash from the residence of A-1.

E      The trial court eventually held all the accused guilty
  and convicted them under Section 8(c) read with
  Sections 21 and 29 of the NDPS Act. The High Court
  upheld the conviction. An appeal filed by A-2 against the
  judgment of High Court has already been dismissed by
F this Court. The instant appeals are filed by A-1, A-3 and
  A-4.

          Dismissing the appeals, the Court
      HELD:1.1. There is no error or perversity in the view
G taken by the Trial Court or the High Court for that matter
  to warrant interference under Article 136 of the
  Constitution. The prosecution had on the depositions of
  the witnesses examined by it and the documents
  produced at the trial, established that a raid based on the
H secret information received by the Anti-Terrorist Squad
   IQBAL MOOSA PATEL v. STATE OF GUJARAT                123


which was passed on to the Narcotic Control Bureau was          A
Indeed conducted and truck bearing registration number
RJ-04-G-1305 was intercepted and searched. In the.
course of the said search 3.056 kgs. of heroin was
recovered from the possession of A-4 who was driving
the truck and A·3 accompanying him. The heroin was              B
recovered from tne bag that was kept under the seat on
which A·3 traveling with him in the truck was sitting. The
evidence on record totally belies the version belatedly
advanced by both A-3 and A-4, that both or any one of
them were/was unaware of the presence of the bag or its         c
contents. [Para 11] [130-F-H; 131-A-C]

      1.2. So also the seizure of the contraband from the
residence of A-1 in a raid is established on the basis of
the evidence on record. The argument urged on behalf
of the A-1 that the house from where recovery was made          D
was not in his exclusive possession as other members
of his family were also living in ·the same has also been
correctly repelled. The accused-appellants cannot be
given the benefit of doubt having regard to the nature of
the evidence adduced by the prosecution against them.           E
It is true that the prosecution is required to. establish its
cas~ beyond a reasonable doubt, but that does not mean
that the degree of proof must be beyond a shadow of
doubt. [Para 12, 131 [131-D, H; 132-A-B]
                                                                F
     1.3. 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           G.
defence evidence adduced at the trial, there is no reason
to interfere. Also, an appeal arising out of the same
judgment filed by A-2 has already been dismissed by this
Court. That being so, there is no reason, much less a
compelling one, to strike a discordant note. [Para 15] [133·    H
D-E]
    124      SUPREME COURT REPORTS              [2011) 2 S.C.R.


A       Sucha Singh and Anr. v. State of Punjab (2003) 7 SCC
    643 - relied on.

          Jagdish V. State of M.P. (2003) 9 sec 159 - referred
    to.
B        Miller v. Minister of Pensions (1947) 2 ALL ER 272 -
    referred to.

                         Case Law Reference:
          (2003) 9 sec 159        referred to          Para 6
c
          (1947) 2 ALL ER 272     referred to          Para 13
          (2003) 7 sec 643        relied on            Para 14
      CRIMINAL APPELLATE JURISDICITION : Criminal
D Appeal No. 1231-1232 of 2009.

        From the Judgment & Order dated 17.03.2008 &
    24.04.2008 of the High Court of Gujarat at Ahmadabad in
    Criminal Appeal No. 2327 of 2006.
E                                  WITH

    Crl. A. Nos. 1574 of 2009 & 129 of 2011.

      Jayant Bhushan, S.K. Dubey, Sushil Gupta, Kamal Mohan
F Gupta, Javed Khan, Satyendra Kumar, Sanjeev Kumar for the
  Appellant.

        T.S. Deobia, Hemantika Wahi, Enatoli Serna, Rajkumar
    Tanwar, S.N. Tersal for the Respondent.

G         The Judgment of the Court was delivered by

          T.S. THAKUR, J. 1. Leave granted.

          2. These appeals by special leave are directed against a

H
    IQBAL MOOSA PATEL v. STATE OF GUJARAT                      125
               [T.S. THAKUR, J.]

common judgment arid order passed by the High Court of                A
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 21and29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter              B
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            c
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       0
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,            E
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 the said Mr. Hemaram Chaudhary.         F
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 Ahmadabad while the same was returning from Bharuch.
The truck was driven by accused no.4-Ashuram Durgaram                 G
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            H
    126      SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A 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
B 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
c Bhaikhanbhai both residents of Badmer in Rajasthan in the
   month of March 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 Trlal Court the
D 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
E 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.

F      4. ·1-he 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
G 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. We have heard learned counsel for the parties at some
  length and perused the record. Apart from the oral submissions
H made at the bar; written submissions have also been filed on
   IQBAL MOOSA PATEL v.. STATE OF GUJARAT                   127
              [T.S. THAKUR, J.]
behalf of appellants in Criminal Appeals No.1231-1232 of 2009 A
and No.157 4 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 doubtintercepted and
searched on 29th June, 2001 but nothing incriminating was B
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 c
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 0
contended that appellant-Ashuram Durgaram Chaudhary has
been falsely implicated as he had no knowledge of the 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- Ashumm
Durgaram Chaudhary reads as under:                               E

    "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         F
    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        G
    judgment of the Trial Court which eschewed the statement
    recorded under section 67 of the NDPS Act and also of
    Mr. Tamar (PW-5). The Evidence of the Panch witnesses
    to the recovery shows that there was no ring of truth in the
    prosecution story."                                            H
    128     SUPREME COURT REPORTS                [2011) 2 S.C.R.


A      6. On behalf of the appellant-Iqbal Moosa Patel it
  was, inter a/ia, 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
B Panch witnesses PW3-Jignesh Jaswantbhai Modi had not
  supported the 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 MP. 2003 (9) SCC 159 the appellant
c 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
0
  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.

E        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.
F
       8. On behalf of the respondents it was argued that on the
  basis of the secret information received by the Anti-Terrorist
  Squad which was passed on to the Narcotics Control Bureau
  (NCB) Ahmedabad, a large quantity of heroin weighing 3.056
G 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
H
    IQBAL MOOSA PATEL v. STATE OF GUJARAT                   129
               [T.S. THAKUR, J.]
stated that a consignment of 4 kgs. was earlier supplied to        A
accused no.1-lqbal Moosa Patel sometime around mid March
2001 which led the NCB to raid the house of accused no. 1-
lqbal Moosa Patel. It was further submitted that pursuant to the
said information the house of appellant-accused no.1-lqbal
Moosa Patel was raided. on 7th July, 2001 that led to the          B
seizure of 3 kgs. of heroin and a cash o.f 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    c
the present appeals.

     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      D
persons except accused no.1-lqbal 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       E
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      F
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       G
    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          H
    130      SUPREME COURT REPORTS                [2011] 2 S.C.R.


A       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
B       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
        moire than 250 gms. of heroin and the same could have
        been also done at Mumbai rather bringing him to his own
c       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
0       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
E 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
F to warrant our interference under Article 136 of the Constitution \
  of India. The prosecution had on 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
G 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
H no.3-Derajram Jat accompanying him. It is noteworthy that the
    IQBAL MOOSA PATEL v. STATE OF GUJARAT                      131
               [T.S. THAKUR, J.]
fact that the truck was intercepted and searched         py, t~e     A
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. Par.a 3 of the written            B
submissions which we have extracted earlier simply suggests
thatthe 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/         c
was unaware of the presence of the bag or its contents.

     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              D
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:                                                            E

           "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          F
    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      G
    ~vidence 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        H
    132        SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A 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 benefit. It is true that the prosecution is required to
  establish its case beyond a reasonable doubt, but that does
s 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
c         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 fahciful possibilities to deflect the course of
          justice. If the evidence is so strong against a man as to
D         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. ...

E         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
F         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:
G
          " ....... 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 hundred guilty
H         escape than punish an innocent. Letting the guilty escape
    IQBAL MOOSA PATEL v. STATE OF GUJARAT                     133
               [T.S. THAKUR, J.]

     is not doing justice according to law. (See Gurbachan            A
     Singh v. Satpa/ 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            B
     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         c
     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        D
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          E
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.                                                     F

8.8.8.                                      Appeals dismissed.