Rizwan Khan vs State Of Chhattisgarh

Ram Prasanna Sharma, J

Since all the three appeals are preferred against the same judgment, they are heard analogously and are being disposed of by this common

judgment.

These appeals are preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against judgment dated 31.08.2012 passed by Special

Judge, NDPS, Raipur (C.G.) in Special Criminal Case No. 20/2012, wherein the said court convicted appellants - Rizwan Khan & Pukhraj for

commission of offence under Section 20(b)(ii)(B) of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the NDPS Actâ€) and

sentenced to R.I. for 5 years and fine of Rs. 25,000/-each with further default stipulations and convicted appellant- Rakesh Kumar for commission of

offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced to R.I. for 10 years and fine of Rs. 1,00,000/- with further default stipulations.

As per the prosecution case, Assistant Sub-Inspector (ASI) J.K.Sen (PW-4) was posted at police station- Gudhiyari, Raipur (C.G.) and on

receiving information on 26.04.2012 at 14:40 p.m. that all the appellants are in possession of contraband article ganja illegally for sale, investigating

officer along with police personnels and otherwitnesses arrived at the spot near Prince Dhaba, Gogaon and seized about 20 Kg. contraband from

appellant- Rizwan, 20 Kg. contraband from appellant- Pukhraj and 46 Kg. contraband from appellant-Rakesh Kumar. Matter was investigated and all

the appellants were charge-sheeted and after trial, they were convicted as mentioned above. Learned counsel for the appellants submit as under:-

(i) The trial court committed error in convicting the appellants on the sole testimony of police officer-J.K. Sen without considering the mandatory

provisions of the act which has not been complied with. Recording information in Rojnamcha Sanha is not proper but that aspect of the matter has not

been taken in account.

(ii) Panchnama witness has not supported version of the prosecution and person who weighed quantity of ganja is also not supported version of the

prosecution, therefore, case of the prosecution is not proved.

(iii) Seal of the police station was not kept in safe custody and there is every possibility of tempering the seal, therefore, prosecution case is not

established.

(iv) Bolero vehicle and motorcycle were seized from the spot is not connecting piece of evidence because ownership of the said vehicles is not proved

through registration certificate in the name of the appellants.

(v) ASI J.K. Sen who seized articles and lodged FIR has also participated in investigation. The complainant and investigator is the same which is not

permissible under the law. The prosecution is liable to be quashed on this count alone.

(vi) Constable- Devendra Dhruv & Digvijay Singh who accompanied, ASI J.K. Sen, but they have not been examined before the trial court.

(vii) Alleged seizure of contraband from appellant- Rizwan Khan from his motorcycle is also doubtful as its number on the different documents is not

same. In Ex. P/10 its number is mentioned as 8499 while in Ex. P/16 & P/37 its number is mentioned as 4489.

(viii) Samples seized from appellant- Rizwan Khan were marked as B1 & B2 whereas, the letter sent to Senior Superintendent of Police (SSP) as per

Ex. P/33 shows article A1 was seized from appellant-Rizwan Khan, therefore, it is not proved that the contraband which is seized from appellant-

Rizwan Khan was sent for examination. The sample was not deposited in safe custody and it is not mentioned in malkhana register.

(ix) The trial court did not formulate any point for consideration, therefore, finding of the trial court is liable to be reversed. They placed reliance in the

matter of Mohan Lal Vs. The State of Punjab (CRA No. 1880 of 2011) wherein Hon'ble the Apex Court has held that informant and investigator must

not be the same person. They further placed reliance in the matters of Sheikhlal Vs. State of Madhya Pradesh reported in 2007(3) M.P.H.T. 250 &

Dilip & another Vs. State of M.P. reported in 2007 Cr.L.J. 880.

To substantiate the charge, the prosecution examined as many as 8 witnesses. ASI J.K. Sen (PW-4) was posted at police station-Gudhiyari, Raipur

on 26.04.2012. As per version of this witness, he received information at about 14.40 p.m. that six persons are standing behind Prince Dhaba, Gogaon

with Bolero vehicle of silver colour and two motorcycles of black colour and they transported contraband article ganja in the said vehicles. As per

version of this witness, he prepared a panchnama (Ex. P/34) and said information was sent to City Superintendent of Police (CSP), Urla, Raipur as

per Ex. P/35. Version of this witness is supported by version of Head Constable-Ishwar Prasad Verma (PW-8) who was posted as Reader in the

office of CSP, Urla, Raipur on 26.04.2012. He supported version of ASI J.K. Sen that information was received by office of CSP, Urla, Raipur. In

this way, provision of Section 42(2) of the NDPS Act was complied with and argument advanced on behalf of the appellants on this count is not

sustainable that there is flaw in sending information to superior officer.

ASI J.K. Sen (PW-4) further deposed that he reached to the spot with Constable Devendra Dhruv & Digvijay Singh along with two independent

witnesses namely Kanhaiya & Golu. As per version of this witness, they have been searched and no objectionable article was found in their

possession. Notice was served to the appellants regarding information of their right to be searched by Magistrate or Gazetted Officer and then after

their consent, they started search. He further deposed that appellant- Pukhraj opened motorcycle in which contraband article was kept. Again,

appellant- Rizwan opened motorcycle in which contraband article was kept. Thereafter, appellant- Rakesh Kumar opened Bolero vehicle in which

contraband article was found in three different bags in the said vehicle.

As per version of this witness, article seized from Pukhraj was weighed and quantity was found 20 Kg. from which two packets of sample of 100

gram. each were prepared and rest of the articles were sealed. Again, article seized from appellant- Rizwan Khan was weighed and quantity was

found 20 Kg. from which two packets of sample of 100 gram. each were prepared and rest of the articles were sealed. He further deposed that the

article seized from appellant-Rakesh Kumar was weighed and in first bag, it is found to be 20 kg., in second bag, it is found to be 19 Kg. and in third

bag, it is found to be 7 kg. In all, it was found to be total 46 kg. contraband seized from appellant- Rakesh Kumar.

Sample of article which was seized from appellant- Pukhraj was marked as A-1 and it was sealed in which specimen seal was also marked. Again,

in sample seized from appellant- Rizwan which was marked B-1 & B-2 and sample seized from appellant- Rakesh Kumar was marked as C-1, C-2,

E-1 & E-2. He further deposed that Dehati Nalsi recorded on the spot as per Ex. P/36 and seized articles were handed over to the in-charge police

station. He further deposed that the information regarding entire proceedings were sent to CSP Urla, Raipur as per Ex. P/37. Version of this witness

is supported by version of Head Constable- Ishwar Prasad Verma (PW-8) who was Reader inthe office of CSP Urla and received the information of

the entire proceeding as per Ex. P/37. In this way, it is established that the articles were kept in safe custody as per provision of Section 55 of the

NDPS Act. Version of this witness is supported by version of Head Constable- Nagendra Singh (PW-7) who was in-charge of malkhana in police

station- Gudhiyari, Raipur. As per version of this witness, two packets marked as A-1 & A-2 was kept by him as the same is handed over by ASI

J.K. Sen. Again, he received packets marked as B-1 & B-2 which is seized from appellant - Rizwan Khan and received packets C-1, C-2, D-1, D-2

& E-1 & E-2 which is seized from appellant-Rakesh Kumar. He produced malkhana register (Ex. P/44 & P/45) and as per version of this witness, the

seized article was handed over for keeping the article in safe custody is entered in malkhana register and the same was kept in malkhana. He further

deposed that the samples were withdrawn from malkhana for depositing the same to forensic science laboratory for examination.

Version of this witness is supported by version of Sudeep Prasad Mishra (PW-3) who received all the packets and deposited the same in forensic

science laboratory for examination and received acknowledgement as per Ex. P/33. Version of this witness is supported by report of forensic science

laboratory (Ex. P/38) in which it is clearly mentioned that Constable No. 2576 Sudeep Mishra deposited the seized packets in the laboratory as sample

A-1, B-1, C-1, D-1 & E-1 were examined and test of contraband article was found positive. In this way, version of ASI J.K. Sen and Head Constable

Nagendra Singh (PW-7) is supported by version of Constable- Sudeep Prasad Mishra (No. 2576) (PW-3). From the evidence, it is established that

article seized in the case were kept in safe custody of malkhana and it is handed over to Constable- Sudeep Prasad Mishra for depositing the same in

forensic science laboratory which was deposited by him and test of contraband article is found positive. True it is that Constable- Devendra Dhruv

and Digvijay Singh were not examined by the prosecution who accompanied with ASI J.K. Sen, but their non-examination is not fatal for the

prosecution. The material witness for seizure proceeding is ASI J.K. Sen who examined before the trial court and he deposed at length regarding

entire procedure. His version was subjected to searching cross-examination, but nothing could be elicited in favour of the defence

It is settled law that quality of the evidence which is to be weighed not its quantity. No minimum number is required to prove any fact in term of

Section 134 of the Indian Evidence Act, 1872, therefore, non-examination of other persons who accompanied during search and seizure is

insignificant. Though, independent witnesses namely Bholu (PW-1) and Kanhaiya (PW-6) have not supported version of the prosecution, but their

version is not rebutted the version of material witness ASI J.K. Sen. If they are not the real witnesses then their version is not acceptable and if they

are suppressing any facts even then their version is not acceptable. Same formula will apply to Algu Sao (PW-2) who weighed contraband article. His

version is also not rebutting the version of ASI J.K. Sen.

The case is based on seizure of contraband article ganja from the appellants at their instance, it is not a case where ownership of Bolero vehicle or

motorcycle is to be determined. Even in absence of registration certificate, the appellants are found on the spot with contraband article are liable for

their criminal act.

Learned counsel for the appellants submit that ASI J.K. Sen is the complainant in the case where he cannot be investigated. In view of this Court,

ASI J.K. Sen is entitled to proceed on information and he can record Dehati Nalsi on the spot and FIR in the police station. Dehati Nalsi or FIR is not

part of investigation. Investigation starts after registration of FIR. In the present case, Police Inspector- Ashish Shukla (PW-5) has investigated the

matter after registration of FIR and recorded statement of witnesses, therefore, it cannot be said that ASI J.K. Sen has investigated the matter,

argument on this count is not acceptable.

Quantity of 20 kg or more is commercial quantity. After evaluating the entire evidence adduced by the prosecution, the trial court opined that

appellant- Pukhraj & Rizwan Khan were in possession of less than 20 Kg. contraband article ganja which is less than commercial quantity and their

act is punishable under Section 20(b)(ii)(B) of the NDPS Act and article seized from appellant- Rakesh Kumar was more than 20 Kg. i.e. more than

commercial quantity and he has been convicted for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act.

This Court reassessed the evidence and there is no reason to substitute contrary finding, therefore, finding arrived at by the trialcourt is hereby

affirmed. For commission of offence under Section 20(b)(ii)(C) of the NDPS Act, the trial court awarded minimum sentence to appellant- Rakesh

Kumar and for offence under Section 20(b)(ii)(B) of the NDPS Act which is punishable upto imprisonment of 10 years, the trial court awarded

imprisonment of 5 years which cannot be termed as harsh, disproportionate or unreasonable. Sentence part is also not liable to be interfered with.

Accordingly, these appeals are liable to be and are hereby dismissed.