Case Note & Summary
The appellant, Kallu Khan, was convicted under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 900 grams of smack, recovered from beneath the seat of a motorcycle he was riding. The incident occurred on 24 April 2011 when a police patrolling team, led by S.I. Pranveer Singh (PW6), intercepted the appellant on a public road. The appellant attempted to flee upon seeing the police, raising suspicion. After efforts to secure independent witnesses failed, the police conducted a search of the motorcycle with the consent of two constables as witnesses. The contraband was seized, samples were prepared, and the appellant was arrested. The Trial Court convicted him, sentencing him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000, with a default sentence of 2 years. The High Court affirmed the conviction and main sentence but reduced the default sentence to 1 year. The appellant challenged the conviction before the Supreme Court, arguing that the search and seizure were conducted by an unauthorized officer, no independent witnesses were associated, and the contraband was not produced in court. The Supreme Court dismissed the appeal, holding that the recovery was a chance recovery from a vehicle in a public place, governed by Section 43 of the NDPS Act, and not Section 50, which applies to personal search. The court found the police witnesses credible and the non-production of the contraband not fatal. The concurrent findings of the lower courts were upheld as there was no perversity. The appellant had already served the 10-year sentence and deposited the fine.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 21, 43, 50 - Chance Recovery from Vehicle - Applicability of Section 43 - The recovery of 900 gm smack from beneath the seat of a motorcycle driven by the appellant on a public road constitutes a chance recovery under Section 43 of NDPS Act, not requiring compliance with Section 50 which applies to personal search. The court held that Section 43 empowers any officer specified in Section 42 to seize contraband and arrest persons in a public place or in transit, and the search of the vehicle was validly conducted by the Station Incharge. (Paras 11-12) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 21 - Credibility of Police Witnesses - Non-Association of Independent Witnesses - The testimony of police witnesses, being members of the patrolling team, is credible and can form the basis of conviction if found trustworthy and without enmity. The court held that the absence of independent witnesses is not fatal to the prosecution case, especially when the recovery was made from a public road and the witnesses had no animus against the appellant. (Paras 5, 10, 12) C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 21 - Non-Production of Contraband in Court - Effect on Conviction - The non-production of the seized contraband in court during evidence does not vitiate the conviction if the seizure and sampling memos are duly proved by credible witnesses. The court held that the prosecution proved the recovery beyond reasonable doubt through the testimony of police witnesses and documentary evidence. (Paras 9, 11) D) Criminal Procedure Code, 1973 - Section 374 - Appeal Against Conviction - Interference with Concurrent Findings - The Supreme Court will not interfere with concurrent findings of fact unless there is perversity or miscarriage of justice. The court held that the Trial Court and High Court correctly appreciated the evidence and the appellant failed to demonstrate any perversity. (Para 10)
Issue of Consideration
Whether the conviction under Sections 8 & 21 of NDPS Act is sustainable when the search and seizure was conducted by an officer allegedly not authorized, without independent witnesses, and the contraband was not produced in court.
Final Decision
The Supreme Court dismissed the appeal, upholding the conviction and sentence under Sections 8 & 21 of the NDPS Act. The court held that the recovery was a chance recovery from a vehicle in a public place under Section 43, and the procedural challenges raised by the appellant were without merit. The appellant had already served the 10-year sentence and deposited the fine.
Law Points
- Section 43 NDPS Act applies to chance recovery from vehicle in public place
- Section 50 NDPS Act not applicable to vehicle search
- police witnesses testimony can be relied upon if credible
- non-production of contraband in court not fatal if seizure proved
- concurrent findings not interfered without perversity
