RIZWAN KHANversusTHE STATE OF CHHATTISGARH

546                      [2020]REPORTS
               SUPREME COURT    7 S.C.R. 546               [2020] 7 S.C.R.


A                               RIZWAN KHAN
                                        v.
                      THE STATE OF CHHATTISGARH
                       (Criminal Appeal No. 580 of 2020)
B                            SEPTEMBER 10, 2020
            [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                       M. R. SHAH, JJ.]
             Narcotic Drugs & Psychotropic Substances Act, 1985 –
      ss.20(b)(ii)(B), 20(b)(ii)(C), 42, 50, 55 – Appellant-accused along
C
      with others was found with contraband articles in the vehicle –
      Convicted u/s.20(b)(ii)(B) – Held: No error committed by both the
      courts below in convicting the accused relying upon the deposition
      of the police officials which is reliable and trustworthy – Compliance
      of the procedure prescribed u/ss.42, 55 has also been established
D     and proved – It was established and proved that the samples which
      were seized and sealed from the appellant were sent to FSL – Further,
      to prove the case under NDPS Act, 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 – Prosecution successful
E
      in proving the case against the appellant – Evidence – Code of
      Criminal Procedure, 1973 – s.313.
            Evidence – Of police officials/police witnesses – Conviction
      based thereon – Non-examination of independent witnesses – Effect
      of – Discussed – Narcotic Drugs & Psychotropic Substances Act,
F
      1985.
            Dismissing the appeal, the Court
             HELD: 1.1 The prosecution has been successful in proving
      the case against the accused by examining the witnesses PW3,
G     PW4, PW5, PW7 and PW8. All the said 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
      were thoroughly cross-examined by the defence. There is no
      allegation of any enmity between the police witnesses and the
H
                                      546
     RIZWAN KHAN v. THE STATE OF CHHATTISGARH                         547


accused. No such defence has been taken in the statement under        A
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. Examination of
independent witnesses is not an indispensable requirement and
such non-examination is not necessarily fatal to the prosecution
                                                                      B
case. No error was committed by both the courts below in
convicting the accused relying upon the deposition of the police
officials. [Para 8.2][554-C-D]
      Surinder Kumar v. State of Punjab (2020) 2 SCC 563
      – relied on.
                                                                      C
     1.2 Compliance of the procedure prescribed under Section
42 and 55 of the NDPS Act has been established and proved.
[Paras 9, 9.1][555-E-F]
       1.3 To prove the case under the NDPS Act, the ownership
of the vehicle is not required to be established and proved. It is    D
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.
                                                                      E
Merely because 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. [Para 11][556-E-F]
                                                                      F
      Mohan Lal v. State of Punjab (2018) 17 SCC 627 :
      [2018] 9 SCR 1006; P.P. Fathima v. State of Kerala
      (2003) 8 SCC 726; Baldev Singh v. State of Haryana
      (2015) 17 SCC 554 : [2015] 12 SCR 969; State of
      Himachal Pradesh v. Pradeep Kumar (2018) 13 SCC
      808 : [2018] 2 SCR 656; Mukesh Singh v. State                   G
      (Narcotic Branch) Decision of Supreme Court dated
      31.08.2020 in SLP (Criminal) Diary No. 39528/2018
      – referred to.


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548            SUPREME COURT REPORTS                           [2020] 7 S.C.R.


A                              Case Law Reference
      [2018] 9 SCR 1006                   referred to              Para 5
      (2003) 8 SCC 726                    referred to              Para 7.3
      [2015] 12 SCR 969                   referred to              Para 7.3
      [2018] 2 SCR 656                    referred to              Para 7.3
B
      (2020) 2 SCC 563                    relied on                Para 8.2
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      580 of 2020.
             From the Judgment and Order dated 01.10.2018 of the High Court
      of Chhattisgarh at Bilaspur in CRA No. 881 of 2012.
C
             Ms. Prachi Mishra, AAG, Raj Kishor Choudhary, Shakeel Ahmed,
      Anupam Bhati, Nakul Chaudhary, Ms. Malvika Raghawan, Sumeer
      Sodhi, Ms. Simran Agrawal, Advs. for the appearing parties.
             The Judgment of the Court was delivered by
D            M. R. SHAH, J.
             1. 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
E
      accused No.1 and has confirmed the Judgment and Order of Conviction
      and Sentence passed by the learned Special Court convicting the accused
      – appellant no.1 for the offence under Section 20(b)(ii)(B) of Narcotic
      Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as
      the ‘NDPS Act’) and sentencing him to undergo five years rigorous
F     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
G     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
H
      RIZWAN KHAN v. THE STATE OF CHHATTISGARH                                 549
                   [M. R. SHAH, J.]

rights that if they want their search was to be done either by a Gazetted      A
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
                                                                               B
recovered 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          C
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
                                                                               D
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.      E
The substance seized was found to be Ganja. On completion of the
investigation against the accused under the NDPS Act, 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
                                                                               F
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 –                   G
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
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550            SUPREME COURT REPORTS                           [2020] 7 S.C.R.


A     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.
            4. After conclusion of the trial and on appreciation of the evidence
B     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
C     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
D     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.
E            5.1 After having noted that ASI J.K. Sen (PW4) only seized the
      articles and lodged the FIR and thereafter no further investigation 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
F     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:
G
            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
H     of the police officers;
      RIZWAN KHAN v. THE STATE OF CHHATTISGARH                                551
                   [M. R. SHAH, J.]

      iii) that panchnama witnesses have not supported the version of         A
the prosecution and the person who weighed the quantity of Ganja is
also not supported the case of the prosecution;
       iv) that out of the eight witnesses examined, the independent
witnesses have not supported the prosecution story and were declared
hostile;                                                                      B
        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       C
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;
                                                                              D
       vi) that non-recovery 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;
      vii) that no sample of the seal was sent along with the samples to      E
the FSL for the purpose of comparing with the seal appearing on the
samples of contraband allegedly recovered from the appellant/accused;
       viii) that non-examination of constables who accompanied PW4
at the time of recovery also creates serious doubt on the prosecution
case.                                                                         F
      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        G
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
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552            SUPREME COURT REPORTS                           [2020] 7 S.C.R.


A     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 sentence of five years may be reduced to the period
      already undergone by the appellant/accused.
B           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
C
      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
D     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
E     independent witnesses (Panchnama witnesses) have turned hostile, that
      does not adversely affect the case of the prosecution. 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
F     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
G     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;
H
      RIZWAN KHAN v. THE STATE OF CHHATTISGARH                                  553
                   [M. R. SHAH, J.]

       7.4 Now so far as the submission on behalf of the accused that           A
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 inspector Ashish Shukla,
PW5 and Shri J.K. Sen, PW4 only recorded the FIR. It is submitted that
                                                                                B
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    C
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        D
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         E
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 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           F
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          G
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;                         H
554             SUPREME COURT REPORTS                           [2020] 7 S.C.R.


A           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.
            8.1 We have scanned and re-appreciated the entire evidence on
B     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
C     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 cross-
      examined by the defence. There is no allegation of any enmity between
D     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
E     be rejected on the ground of non-corroboration by independent witness.
      As observed and held by this Court in catena of decisions, examination
      of independent witnesses is not an indispensable requirement and such
      non-examination is not necessarily fatal to the prosecution case, [see
      Pardeep Kumar (supra)].
F           In the recent decision in the case of Surinder Kumar v. State of
      Punjab, (2020) 2 SCC 563, while considering somewhat similar
      submission of non-examination of independent witnesses, while dealing
      with the offence under the NDPS Act, in paragraphs 15 and 16, this
      Court observed and held as under:
G           “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
H           implicated. The evidence of official witnesses cannot be
      RIZWAN KHAN v. THE STATE OF CHHATTISGARH                                555
                   [M. R. SHAH, J.]

      distrusted and disbelieved, merely on account of their official         A
      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    B
      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      C
      presumption and recognised even by the legislature.”
       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     D
police officials.
       9. Now so far as the submission on behalf of the accused with
respect to non-compliance 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           E
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.
                                                                              F
       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 sample in memorandum          G
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.
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556             SUPREME COURT REPORTS                            [2020] 7 S.C.R.


A            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
B
      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,
C     PW4, thereafter the case was investigated by 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
D     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
E     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
F     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.
             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
G     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,
H
      RIZWAN KHAN v. THE STATE OF CHHATTISGARH                                 557
                   [M. R. SHAH, J.]

the prayer to take a lenient view is rejected as the learned Special Court     A
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         B
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 circumstances, the present appeal fails and the
same deserves to be dismissed and is accordingly dismissed.
                                                                               C

Divya Pandey                                               Appeal dismissed.




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