Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 789

SUPREME COURT OF INDIA
(From the High Court of Judicature For Rajasthan at Jaipur)
Indira Banerjee, J.K. Maheshwari, JJ.
Kallu Khan – Appellant
Versus
State of Rajasthan – Respondent
Criminal Appeal No. 1605 of 2021 (Arising Out of Special Leave Petition (Criminal) No. 8425 of 2021)
Decided on : 11-12-2021

Advocates appeared:
For the Appellant :T. Mahipal, Advocate,
For the Respondent:Pai Amit, Milind Kumar, Advocates

IMPORTANT POINTS
(1) When seizure of material is proved on record and is not even disputed, entire contraband material need not be placed on record.
(2) Seizure of Psychotropic Substances – Question of ownership of vehicle is not relevant.
(3) Interference in exercise of power under Article 136 of Constitution of India can only be called for when judgment of lower court is vitiated by gross error.

Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8 and 21 read with Sections 43 and 50 – Seizure of Smack – Conviction and sentence – Police team apprehended and intercepted accused and made search of vehicle in which seized contraband smack was found beneath seat of vehicle – Recovery of contraband from motor cycle of appellant was a chance recovery on a public road – In facts of case at hand, where search and seizure was made from vehicle used, by way of chance recovery from public road, provisions of Section 43 of NDPS Act would apply – Question of ownership of vehicle is not relevant – When seizure of material is proved on record and is not even disputed, entire contraband material need not be placed on record – It is not a case in which appellant has proved beyond reasonable doubt that while sending samples for forensic tests, seals were not intact or procedure has been materially not followed by protecting seized substance or was not stored properly – Appellant has failed to show that findings recorded by two Courts suffer from any perversity or illegality on said issue and warrant interference – No recovery of contraband from person of accused has been made to which compliance of provision of Section 50 NDPS Act has to follow mandatorily – In present case, in search of motor cycle at public place, seizure of contraband was made, as revealed – Therefore, compliance of Section 50 does not attract in present case – Merely because independent witnesses were not examined, conclusion could not be drawn that accused was falsely implicated – Concurrent findings of courts does not call for interference – Appeal dismissed. (Paras 11, 12, 13, 14, 15, 16, 18 and 19)
(B) Constitution of India – Article 136 – Appeal – Scope and ambit – Interference in exercise of power under Article 136 of Constitution of India can only be called for when judgment of lower court is vitiated by gross error – Interference can be made when a question of law of general public importance arises or a decision shocks conscience of Court – In case, finding is vitiated by any error of law or procedure or found contrary to principles of natural justice, and misreading of evidence, or where conclusions of High Court are manifestly perverse and unsupportable from evidence on record, interference under Article 136 can be called for. (Para 17)
Facts of the case:
Present appeal has been filed arising out of 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 and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 1,00,000/- has been affirmed. While confirming the conviction and sentence, the High Court reduced the default sentence from 2 years to 1 year.
Findings of Court:
As appellant has already served sentence so awarded and released after deposit of the amount of fine, therefore, no further directions need be issued.
Result : Appeal dismissed.

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 as "NDPS Act") and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 1,00,000/-(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 In-charge 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. 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 marked as 'C and sealed, where after, 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, charge-sheet 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 non-availability of independent witnesses, S.I. Pranveer Singh (P.W.6) conducted proceedings of search after consent and seizure being temporarily posted as In-charge of Bhawani Mandi Police Station and completed the same. It is observed that though the search appears to have been done superficially, but evidence of police personn

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