Supreme Court Upholds Conviction Under NDPS Act: Rizwan Khan vs. State of Chhattisgarh (2020)

Date of the Judgment: 10 September 2020

Citation: 2020 INSC 681

Judges: Ashok Bhushan J., R. Subhash Reddy J., M.R. Shah J.

Can a conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) be sustained solely on the testimony of police officers if independent witnesses turn hostile? The Supreme Court of India addressed this critical question in the case of Rizwan Khan vs. The State of Chhattisgarh. This judgment clarifies the evidentiary value of police testimony in NDPS cases and the importance of procedural compliance. The bench consisted of Justices Ashok Bhushan, R. Subhash Reddy, and M.R. Shah, with the judgment authored by Justice M.R. Shah.

Case Background

The case involves Rizwan Khan and Pukhraj, who were accused of possessing 20 kg each of Ganja, a prohibited narcotic substance, under Section 20(b)(ii)(B) of the NDPS Act. According to the prosecution, on an unspecified date, 20 kg of Ganja was recovered from Rizwan Khan’s motorcycle. Rizwan Khan and Pukhraj were informed of their rights under Section 50 of the NDPS Act, which allows them to request a search by a Gazetted Officer or a Judicial Magistrate. They consented to a search by any investigating officer. Upon opening a sack on Rizwan Khan’s motorcycle, 20 kg of Ganja was found. Samples were taken, sealed, and marked as ‘B1’ and ‘B2’, with the remaining substance marked as ‘B’. Rizwan Khan was arrested along with Pukhraj.

The initial information was received and recorded by ASI J.K. Sen (PW4), who registered the FIR. However, the subsequent investigation was carried out by Police Inspector Ashish Shukla (PW5). After the investigation, Rizwan Khan and Pukhraj were charged under Section 20(b)(ii)(B) of the NDPS Act, while another co-accused, Rakesh Kumar, was charged under Section 20(b)(ii)(C) of the NDPS Act. Rizwan Khan pleaded not guilty and was tried for the offense.

Timeline:

Course of Proceedings

The Special Court convicted Rizwan Khan under Section 20(b)(ii)(B) of the NDPS Act, sentencing him to five years of rigorous imprisonment and a fine of Rs. 25,000, with an additional year of imprisonment in default of fine payment. The High Court of Chhattisgarh dismissed Rizwan Khan’s appeal, upholding the Special Court’s decision. The High Court noted that while ASI J.K. Sen (PW4) seized the articles and lodged the FIR, the subsequent investigation was carried out by PW5, Ashish Shukla. Therefore, the High Court held that the principle laid down in Mohan Lal v. State of Punjab [(2018) 17 SCC 627], where the complainant and investigator were the same, would not apply.

Legal Framework

The case primarily revolves around Section 20(b)(ii)(B) of the NDPS Act, which deals with offenses related to the production, manufacture, possession, sale, purchase, transportation, import, and export of cannabis. Specifically, Section 20(b)(ii)(B) of the NDPS Act states:

“20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted thereunder,—
(b) cultivates any cannabis plant; or
(ii) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—
(B) where such contravention relates to sub-clause (b) and involves quantity less than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;”

The judgment also references Sections 42, 50, and 55 of the NDPS Act, which outline the procedures for search, seizure, and arrest, and the handling of seized substances. Section 42 of the NDPS Act deals with the power of entry, search, seizure, and arrest without warrant or authorization. Section 50 of the NDPS Act provides safeguards for the accused during search and seizure, including the right to be searched before a Gazetted Officer or a Magistrate. Section 55 of the NDPS Act outlines the procedure for the custody of seized substances.

Arguments

Appellant’s Arguments (Rizwan Khan):

• Non-compliance with Section 42 of the NDPS Act: The mandatory procedures for search and seizure were not followed.

• Conviction based solely on police testimony: The conviction was based on the testimony of police officers, which is unreliable without independent corroboration.

• Hostile panchnama witnesses: The independent witnesses (panchnama witnesses) did not support the prosecution’s case.

• Discrepancies in evidence: The person who weighed the Ganja did not support the prosecution’s version.

• Doubtful seizure: The seizure of the contraband from the motorcycle was doubtful due to discrepancies in the vehicle’s number on different documents (Ex. P/10, P/16, and P/37). Samples were marked as ‘B1’ and ‘B2’, but the letter to the Senior Superintendent of Police (Ex. P/33) mentioned article ‘A1’ was seized from the accused.

• Improper custody of samples: The sample was not deposited in safe custody and not mentioned in the malkhana register.

• Non-recovery of motorcycle: The non-recovery of the motorcycle was fatal to the prosecution’s case.

• Seal not kept in safe custody: PW7 stated that he did not make any entry of the seal in the malkhana register.

• No sample of seal sent to FSL: No sample of the seal was sent to the Forensic Science Laboratory (FSL) for comparison.

• Non-examination of accompanying constables: The constables who accompanied PW4 at the time of recovery were not examined.

• Cumulative effect of discrepancies: The cumulative effect of these discrepancies creates serious doubts about the prosecution’s claim of possession of contraband by the accused.

• Request for leniency: The appellant had already served three years of the five-year sentence. Given that Section 20(b)(ii)(B) of the NDPS Act does not prescribe a minimum sentence, the court should reduce the sentence to the period already undergone.

Respondent’s Arguments (State of Chhattisgarh):

• Compliance with NDPS Act: The investigating officer took all necessary precautions and measures required under the NDPS Act. The prosecution established compliance with Sections 42, 50, and 55 of the NDPS Act through the testimony of PW3, PW4, PW5, PW7, and PW8.

• Reliability of police witnesses: Though the independent witnesses turned hostile, the prosecution successfully proved its case through reliable witnesses, including police officers. The testimony of police officials cannot be disregarded merely because independent witnesses turned hostile. Reliance was placed on 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].

• Complainant and investigating officer were different: The argument that the complainant and investigating officer were the same does not apply here. J.K. Sen (PW4) only recorded the FIR, while Ashish Shukla (PW5) conducted the investigation. The decision in Mohan Lal (supra) is not applicable, and the recent decision in Mukesh Singh v. State (Narcotic Branch) (Special Leave Petition (Criminal) Diary No.39528/2018, decided on 31.08.2020) suggests that Mohan Lal (supra) is not good law.

• Corroborative evidence: The finding of guilt is based on the corroborative statements of PW4, PW3, PW5, PW7, and PW8, along with the forensic report. The prosecution does not rely solely on PW4’s testimony.

• Clerical error in sample numbering: The discrepancy in the sample numbering (‘A1’ in the Superintendent of Police’s memorandum vs. ‘B1’ and ‘B2’ for the recovery from Rizwan Khan) was a clerical error. Records clearly establish that the samples recovered from Rizwan Khan were marked as ‘B1’ and ‘B2’ and were sent to the FSL.

• Non-recovery of motorcycle: The non-recovery of the motorcycle does not vitiate the prosecution’s case. The accused were found on the spot with the contraband in the vehicle, and the commission of an offense under the NDPS Act was established.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the issues addressed by the court can be summarized as:

1. Whether the conviction under Section 20(b)(ii)(B) of the NDPS Act can be sustained solely based on the testimony of police officers.
2. Whether the discrepancies in evidence, such as the vehicle number and sample markings, vitiate the trial.
3. Whether non-compliance with Sections 42, 50, and 55 of the NDPS Act affects the validity of the conviction.
4. Whether the non-recovery of the vehicle and non-examination of independent witnesses are fatal to the prosecution’s case.
5. Whether the sentence imposed by the Special Court and confirmed by the High Court was appropriate.

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

How each authority was viewed by the Court:

• P.P. Fathima v. State of Kerala [(2003) 8 SCC 726]* – The Court relied on this case to support the view that the testimony of police officials is reliable and cannot be discarded merely because independent witnesses turned hostile.
• Baldev Singh v. State of Haryana [(2015) 17 SCC 554]* – The Court relied on this case to support the view that the testimony of police officials is reliable and cannot be discarded merely because independent witnesses turned hostile.
• State of Himachal Pradesh v. Pradeep Kumar [(2018) 13 SCC 808]* – The Court relied on this case to support the view that the testimony of police officials is reliable and cannot be discarded merely because independent witnesses turned hostile, and that examination of independent witnesses is not an indispensable requirement.
• Mohan Lal v. State of Punjab [(2018) 17 SCC 627]* – The Court acknowledged that this case was initially relied upon by the appellant but noted that it was overruled by Mukesh Singh v. State (Narcotic Branch) (Special Leave Petition (Criminal) Diary No.39528/2018, decided on 31.08.2020).
• Mukesh Singh v. State (Narcotic Branch) (Special Leave Petition (Criminal) Diary No.39528/2018, decided on 31.08.2020)* – The Court relied on this case to overrule Mohan Lal v. State of Punjab [(2018) 17 SCC 627], stating that the decision is not a good law.
• Surinder Kumar v. State of Punjab [(2020) 2 SCC 563]* – The Court relied on this case to support the view that the evidence of official witnesses cannot be distrusted merely on account of their official status and that non-examination of independent witnesses is not necessarily fatal to the prosecution case.
• Jarnail Singh v. State of Punjab [(2011) 3 SCC 521]* – The Court relied on this case to support the view that merely because the prosecution did not examine any independent witness, it would not necessarily lead to the conclusion that the accused was falsely implicated.
• State (NCT of Delhi) v. Sunil [(2011) 1 SCC 652]* – The Court relied on this case to support the view that the actions and documents made by the police should be approached with initial trust, and the presumption should be that official acts of the police have been regularly performed.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the reliability of the police witnesses and the established procedures under the NDPS Act. The Court emphasized that the testimony of police officers is credible unless there is a clear reason to doubt it, and the absence of independent witnesses does not automatically invalidate the prosecution’s case. The Court also considered the following:

• Reliability of Police Testimony: The Court reiterated that police testimony is credible and does not require independent corroboration.
• Compliance with NDPS Act Procedures: The Court was satisfied that the prosecution had established compliance with the procedures under Sections 42, 50, and 55 of the NDPS Act.
• Overruling of Mohan Lal: The Court noted that the decision in Mohan Lal v. State of Punjab [(2018) 17 SCC 627], which had been relied upon by the appellant, was overruled by Mukesh Singh v. State (Narcotic Branch), thus removing the legal basis for the appellant’s argument that the complainant and investigator being the same vitiated the trial.
• Minor Discrepancies: The Court considered the discrepancies in the evidence to be minor clerical errors that did not affect the core of the prosecution’s case.
• Object of NDPS Act: The Court emphasized the object and purpose of the NDPS Act, stating that the sentence imposed was already lenient and that a more lenient view was not warranted.

The sentiment analysis of the reasons given by the Supreme Court indicates a strong emphasis on the legal procedures and the reliability of police testimony. The Court focused on upholding the conviction based on the evidence presented by the prosecution, while addressing and dismissing the appellant’s arguments.

Logical Reasoning:

Ratio Decidendi

The ratio decidendi of this case can be summarized as follows:

• Reliability of Police Testimony: The testimony of police officials is reliable and trustworthy, and there is no legal requirement for independent corroboration to sustain a conviction under the NDPS Act. The Court emphasized that the evidence of official witnesses cannot be distrusted merely on account of their official status.
• Procedural Compliance: Substantial compliance with the procedures under Sections 42, 50, and 55 of the NDPS Act is necessary, but minor discrepancies or clerical errors do not vitiate the trial.
• Overruling of Mohan Lal: The principle that the complainant and investigator cannot be the same, as laid down in Mohan Lal v. State of Punjab [(2018) 17 SCC 627], is no longer valid, as it has been overruled by Mukesh Singh v. State (Narcotic Branch).
• Recovery of Contraband: The recovery of the contraband from the accused is sufficient to establish an offense under the NDPS Act, and the ownership of the vehicle used in the commission of the offense is not a necessary element.
• Hostile Witnesses: The non-examination of independent witnesses or the fact that they turn hostile does not invalidate the prosecution’s case if the police testimony is reliable and the prosecution has established its case through other evidence.

Obiter Dicta

The obiter dicta of this case can be summarized as follows:

• Leniency in Sentencing: The Court noted that the Special Court had already taken a lenient view by imposing a sentence of five years rigorous imprisonment, considering the object and purpose of the NDPS Act. This suggests that the Court believes sentences should be commensurate with the seriousness of drug offenses.
• Importance of the NDPS Act: The Court’s emphasis on the object and purpose of the NDPS Act indicates a judicial understanding of the need to strictly enforce drug laws to combat the menace of drug abuse and trafficking.
• Initial Trust in Police Actions: The Court’s reliance on State (NCT of Delhi) v. Sunil [(2011) 1 SCC 652] suggests that police actions and documents should be approached with initial trust, and there is a presumption that official acts of the police have been regularly performed.

Conclusion

The Supreme Court’s judgment in Rizwan Khan vs. State of Chhattisgarh (2020) reinforces the reliability of police testimony in NDPS Act cases, even when independent witnesses turn hostile. The Court emphasized that substantial compliance with procedural requirements is sufficient and that minor discrepancies do not vitiate the trial. The overruling of Mohan Lal v. State of Punjab clarified that the complainant and investigating officer can be different individuals, and that the recovery of contraband is the key element in establishing an offense under the NDPS Act. This judgment provides valuable guidance on the evidentiary value of police testimony, the importance of procedural compliance, and the application of the NDPS Act.