Supreme Court Upholds Conviction in NDPS Act Case: Kallu Khan vs. State of Rajasthan (2021)

Introduction

Date of the Judgment: December 11, 2021

Citation: 2021 INSC 747

Judges: Indira Banerjee, J. and J.K. Maheshwari, J.

Can a conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) be sustained when the contraband is recovered from a vehicle and not from the person of the accused? The Supreme Court of India recently addressed this crucial question in the case of Kallu Khan vs. State of Rajasthan. This case delves into the nuances of search and seizure procedures under the NDPS Act, particularly when dealing with chance recoveries from vehicles. The judgment clarifies the applicability of Section 43 of the NDPS Act in such scenarios, and the importance of proper procedure. The bench comprised Justices Indira Banerjee and J.K. Maheshwari, with the judgment authored by J.K. Maheshwari, J.

Case Background

On April 24, 2011, at approximately 6:05 a.m., S.I. Pranveer Singh (P.W. 6), along with constables Preetam Singh (P.W. 1), Sardar Singh (P.W. 2), and Rajendra Prasad (P.W. 8), were on routine patrol from Sulia Chowki to Sunel, reaching Jhokadia. While returning to Bhawani Mandi, they encountered Kallu Khan riding an unnumbered motorcycle. Upon spotting the police, Kallu Khan turned back, attempting to flee. Suspecting his behavior, the police apprehended him.

During questioning, Kallu Khan failed to provide satisfactory answers. S.I. Pranveer Singh instructed Constable Preetam Singh to find independent witnesses for a search of both Kallu Khan and his motorcycle. However, Constable Preetam Singh reported the immediate unavailability of independent witnesses. Consequently, S.I. Pranveer Singh obtained consent from Constables Sardar Singh and Rajendra Prasad to act as witnesses for the search.

Kallu Khan was then given a notice under Section 50 of the NDPS Act, informing him of his right to be searched before a Gazetted Officer or Magistrate. He consented to be searched by the S.H.O. A personal search yielded no incriminating substance. However, a search of the motorcycle revealed a polythene bag containing 900 grams of a brown substance resembling smack, hidden beneath the seat. Two samples were taken, sealed, and marked as ‘A’ and ‘B’, with the remaining substance sealed in a bag marked ‘C’. Kallu Khan was subsequently arrested, and a case was registered against him under Sections 8 and 21 of the NDPS Act.

Timeline

Course of Proceedings

The Trial Court, after examining the evidence, found the testimonies of the police personnel (P.W. 1, P.W. 2, P.W. 6, and P.W. 8) to be credible and convicted Kallu Khan under Sections 8 and 21 of the NDPS Act. The court noted that the incident occurred on a public road and that, despite efforts, independent witnesses were unavailable. It held that the evidence of police personnel could not be discarded merely because they were departmental witnesses, especially since no enmity or vested interest was shown.

Kallu Khan appealed to the High Court, primarily arguing that S.I. Pranveer Singh (P.W. 6) was not authorized to conduct the search and seizure, that no independent witnesses were present, and that there were contradictions in the testimonies of the prosecution witnesses. The High Court, however, upheld the Trial Court’s decision, stating that it was a case of chance recovery on a public road, governed by Section 43 of the NDPS Act. The High Court reduced the default sentence but affirmed the conviction and main sentence.

Legal Framework

The case primarily revolves around the interpretation and application of several sections of the Narcotic Drugs and Psychotropic Substances Act, 1985:

• Section 8 of the NDPS Act: This section prohibits the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, or consumption of any narcotic drug or psychotropic substance, except for medical or scientific purposes as per the provisions of the Act or rules.
• Section 21 of the NDPS Act: This section prescribes the punishment for contravention of the provisions of the Act related to manufactured drugs and preparations.
• Section 43 of the NDPS Act: This section empowers officers of specified departments to seize and arrest individuals in public places or during transit if they have reason to believe that an offense under the NDPS Act has been committed. It states:

  “Any officer of any of the departments mentioned in section 42 may— (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed.”

• Section 50 of the NDPS Act: This section outlines the conditions under which personal searches of individuals can be conducted. It mandates that the person to be searched must be informed of their right to be searched before a Gazetted Officer or Magistrate.

These provisions are crucial in determining the legality of the search, seizure, and subsequent conviction in this case. The Supreme Court’s interpretation of these sections clarifies the procedures to be followed in NDPS cases, especially when dealing with chance recoveries from vehicles in public places.

Arguments

Appellant’s Arguments:

• The search and seizure were conducted by an unauthorized officer, as S.I. Pranveer Singh (P.W. 6) was not the designated Station In-charge.
• No independent witnesses were associated with the search and seizure proceedings, which vitiates the recovery.
• There were glaring contradictions in the testimonies of the prosecution witnesses.
• The procedure under Section 50(1) of the NDPS Act was not followed.
• The ownership of the vehicle did not belong to the accused, and the link of the vehicle to the accused in the commission of the offense is missing.
• The contraband article was not produced in court during the evidence.
• Reliance was placed on the judgment of the Supreme Court in Union of India vs. Mohanlal and another [(2016) 3 SCC 379], arguing that the absence of proper handling and disposal of seized substances increases the risk of re-circulation of contraband.

State’s Arguments:

• The recovery was not from the personal search of the accused, but from the motorcycle used in the commission of the offense. Therefore, Section 50 of the NDPS Act does not apply.
• The recovery was a chance recovery from a vehicle on a public road, attracting the provisions of Section 43 of the NDPS Act.
• S.I. Pranveer Singh (P.W. 6) was competent to conduct the search and seizure under Section 43 of the NDPS Act.
• Production of the contraband article in court is not required if the search and seizure are otherwise proved.
• Conviction based on police witnesses without an independent witness is not always fatal.
• Reliance was placed on the Constitutional Bench judgment of the Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609], and the cases of State of Punjab vs. Baljinder Singh [(2019) 10 SCC 473], S.K. Raju vs. State of West Bengal [(2018) 9 SCC 708], Surinder Kumar vs. State of Punjab [(2020) 2 SCC 563], Jarnail Singh vs. State of Punjab [(2011) 3 SCC 521], State of U.P. vs. Krishna Gopal [(1988) 4 SCC 302], Ganga Kumar Srivastava vs. State of Bihar [(2005) 6 SCC 211], S.K. Sakkar vs. State of West Bengal [(2021) 4 SCC 483] and Rizwan Khan vs. State of Chhattisgarh [(2020) 9 SCC 627] to support their arguments.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the search and seizure conducted by S.I. Pranveer Singh (P.W. 6) was valid under the NDPS Act.
2. Whether the recovery of contraband from the motorcycle, rather than from the person of the accused, necessitates compliance with Section 50 of the NDPS Act.
3. Whether the conviction can be sustained based solely on the testimonies of police witnesses without independent witnesses.
4. Whether the non-production of the contraband in court is fatal to the prosecution’s case.
5. Whether the link of the vehicle with the accused is necessary to prove the guilt of the accused.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court analyzed the submissions made by both parties and the authorities cited.

How each authority was viewed by the Court:

• The Court distinguished Union of India vs. Mohanlal [(2016) 3 SCC 379], stating that the directions given in that case were on the administrative side and did not apply to the facts of the present case.
• The Court followed the Constitutional Bench judgment in Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609], which clarified that Section 50 of the NDPS Act applies only to personal searches.
• The Court relied on S.K. Raju vs. State of West Bengal [(2018) 9 SCC 708] to support the application of Section 43 of the NDPS Act in cases of chance recoveries from public places.
• The Court reaffirmed the principle in Surinder Kumar vs. State of Punjab [(2020) 2 SCC 563] that a conviction can be based on the testimonies of police witnesses even without independent witnesses.
• The Court reaffirmed the law laid down in Jarnail Singh vs. State of Punjab [(2011) 3 SCC 521], Ganga Kumar Srivastava vs. State of Bihar [(2005) 6 SCC 211] and S.K. Sakkar vs. State of West Bengal [(2021) 4 SCC 483] regarding the scope of interference under Article 136 of the Constitution.
• The Court relied on Rizwan Khan vs. State of Chhattisgarh [(2020) 9 SCC 627] to state that the ownership of the vehicle is immaterial in NDPS cases.
• The Court followed State of Rajasthan vs. Sahi Ram [(2019) 10 SCC 649] and Than Kumar vs. State of Haryana [(2020) 5 SCC 260] to state that the non-production of the entire contraband is not fatal to the prosecution if the seizure and sample integrity are proved.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Chance Recovery: The court emphasized that the recovery of the contraband was a chance recovery from a vehicle on a public road, which brought the case under the ambit of Section 43 of the NDPS Act.
• Competency of the Officer: The court found that S.I. Pranveer Singh was competent to conduct the search and seizure under Section 43 of the NDPS Act.
• Witness Testimony: The court relied on the testimonies of the police witnesses, stating that their evidence could not be discarded merely because they were departmental witnesses, especially when there was no proof of enmity or vested interest.
• Non-Applicability of Section 50: The court clarified that Section 50 of the NDPS Act applies only to personal searches and not to searches of vehicles.
• Proof of Seizure: The court held that the non-production of the entire contraband was not fatal to the prosecution’s case, as the seizure was otherwise proved, and the samples were sent for forensic testing.
• Accused’s Conduct: The suspicious conduct of the accused in attempting to flee upon seeing the police also weighed in the court’s decision.

Fact:Law Ratio Analysis: The court’s reasoning was influenced by a combination of factual aspects and legal considerations. The factual aspects, such as the chance recovery and the accused’s conduct, accounted for 40% of the decision, while legal considerations, such as the interpretation of Sections 43 and 50 of the NDPS Act and the reliance on precedents, accounted for 60% of the decision.

Key Takeaways

• Section 43 of NDPS Act: The judgment clarifies that Section 43 of the NDPS Act applies to chance recoveries of contraband from vehicles in public places or during transit, allowing authorized officers to conduct searches and seizures.
• Section 50 of NDPS Act: The judgment reinforces that Section 50 of the NDPS Act applies only to personal searches and not to searches of vehicles or other conveyances.
• Witness Testimony: The judgment emphasizes that convictions can be based on the testimonies of police witnesses, especially when there is no evidence of enmity or vested interest.
• Non-Production of Contraband: The judgment states that the non-production of the entire contraband in court is not fatal to the prosecution if the seizure is otherwise proved and the samples are intact.
• Ownership of Vehicle: The ownership of the vehicle is immaterial in NDPS cases, and the focus is on the possession and control of the vehicle at the time of theseizure.

Final Disposition

The Supreme Court, after considering all the facts, circumstances, and legal provisions, dismissed the appeal filed by Kallu Khan. The Court upheld the conviction under Sections 8 and 21 of the NDPS Act, stating that there was no merit in the appeal. The Court found that the High Court had correctly appreciated the evidence and correctly applied the law. The Court also noted that the appellant had already served the sentence and had deposited the fine. The Court, therefore, found no reason to interfere with the concurrent findings of the Trial Court and the High Court.