2020 (9) TMI 397 - SC - Indian Laws

Smuggling - Ganja - acquittal of accused - offence under Section 20(b)(ii)(B) of Narcotic Drugs Psychotropic Substances Act, 1985 - HELD THAT - In the present case the prosecution has been successful in proving the case 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 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 be rejected on the ground of noncorroboration by independent witness. 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 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. Both the courts below have rightly convicted the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act - there are no reason to interfere with the conviction of the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act. Appeal dismissed.

Issues Involved:
1. Compliance with mandatory provisions of Section 42 of the NDPS Act.
2. Validity of conviction based on police officers' testimonies.
3. Reliability of evidence and discrepancies in documentation.
4. Hostility of independent witnesses.
5. Ownership and recovery of the motor cycle.
6. Safe custody and handling of seized samples.
7. Leniency in sentencing.

Detailed Analysis:

1. Compliance with Mandatory Provisions of Section 42 of the NDPS Act:
The appellant argued that the mandatory provisions of Section 42 of the NDPS Act were not complied with. However, the court found that compliance with Section 42 was established and proved through the deposition of PW8 (Ishwar Prasad Verma). The prosecution successfully demonstrated adherence to the required procedures under the NDPS Act.

2. Validity of Conviction Based on Police Officers' Testimonies:
The appellant contended that both the Special Court and the High Court erred in convicting him based solely on the testimonies of police officers. The court held that the testimony of official witnesses cannot be rejected on the ground of non-corroboration by independent witnesses. The police witnesses (PW3, PW4, PW5, PW7, and PW8) were found to be reliable and trustworthy, and there was no allegation of enmity between them and the accused. The court cited previous rulings to support the view that the evidence of police officials is credible even in the absence of independent witnesses.

3. Reliability of Evidence and Discrepancies in Documentation:
The appellant pointed out discrepancies in the documentation, such as different motor cycle numbers on various documents and inconsistencies in sample markings. The court acknowledged a clerical error in the numbering of samples but concluded that the samples seized from the appellant were indeed sent to the FSL. The prosecution established that the samples marked as 'B1' and 'B2' were the ones recovered from the appellant, despite the clerical error in the Superintendent of Police's memorandum.

4. Hostility of Independent Witnesses:
The independent witnesses (Panchnama witnesses) turned hostile, which the appellant argued should affect the prosecution's case. The court held that the hostility of independent witnesses does not necessarily discredit the prosecution's case if the police witnesses' testimonies are reliable. The court emphasized that the evidence of police officials is sufficient to uphold a conviction if they are found to be credible.

5. Ownership and Recovery of the Motor Cycle:
The appellant argued that the non-recovery of the motor cycle and the failure to establish its ownership were fatal to the prosecution's case. The court rejected this argument, stating that the ownership of the vehicle is immaterial in proving an offence under the NDPS Act. What matters is the recovery of contraband articles from the accused, which was successfully established by the prosecution.

6. Safe Custody and Handling of Seized Samples:
The appellant raised concerns about the safe custody and handling of the seized samples, including the non-entry of the seal in the Malkhana register and the non-examination of constables who accompanied PW4 at the time of recovery. The court found that the prosecution had established and proved that the samples seized and sealed were sent to the FSL. The records showed that the samples marked as 'B1' and 'B2' were indeed the ones recovered from the appellant.

7. Leniency in Sentencing:
The appellant requested a reduction in the sentence, arguing that he had already served three years out of the five-year sentence. The court rejected this request, noting the serious nature of the offence under the NDPS Act and the fact that the Special Court had already taken a lenient view by imposing a five-year sentence, which is less than the maximum sentence of ten years provided under the Act.

Conclusion:
The court concluded that both the Special Court and the High Court had rightly convicted the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act. The prosecution successfully proved the case against the appellant, and the testimonies of the police witnesses were found to be reliable. The appeal was dismissed, and the conviction and sentence were upheld.

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