SUPREME COURT HOLDS THAT OWNERSHIP OF THE VEHICLE FROM WHICH DRUGS ARE RECOVERED IS IMMATERIAL UNDER THE NDPS ACT

The Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the #NDPS Act, #prohibits a person from the production/manufacturing/cultivation, possession, sale, purchase, transport, storage, and/or consumption of any #narcoticdrug or #psychotropicsubstance.

In this regard, recently, three Judges Bench of the Hon’ble Supreme Court of India in the case of Rizwan Khan v. The State of Chhattisgarh (Criminal Appeal No. 580 OF 2020) dealt with the issue of ownership of a vehicle used for the commission of an offence under the NDPS Act. The Supreme Court, vide its Judgment dated 10.09.2020 held that the ownership of the vehicle used by an accused from which the contraband articles were found is immaterial under the NDPS Act.

The facts before the Supreme Court relates to the Rizwan Khan, who was Accused no 1 before the Trial Court and Appellant herein. The Appellant and one another – Pukhraj (Accused) was severed a search notice under the NDPS Act by the investigating officer on the information received from a source and an FIR in the police station. The Accused were given the option of getting the search done either by a Gazetted Officer or Judicial Magistrate of First Class or any other investigating officer. When the search was conducted by the investigating officer, the Accused was asked to open the sack kept on his motor cycle and on opening the same, a bag of Ganja weighing 20kgs was found. The investigating officer did not find anything objectionable on the person of the Accused. Samples of narcotics were taken from the sack that was in possession of the Appellant.

The Accused were arrested and the information of the complete investigation was given to Special Judge, NDPS and also the Municipal Police Officer. The substance seized was found to be Ganja by the Forensics. The Appellant and the other Accused were charged for the offences under the Section 20(b)(ii)(B)and Section 20(b)(ii)(C) of the NDPS Act, respectively.

The learned Special Judge held the Appellant, herein guilty for the offence under Section 20(b)(ii)(B) of the NDPS Act and sentenced him to undergo five years rigorous imprisonment with fine of Rs.25,000/­, in default, to undergo further one year rigorous imprisonment. Feeling aggrieved and dissatisfied with the Impugned Judgment and Order of conviction and sentence passed by the learned Special Judge, the Appellant herein preferred an Appeal before the High Court. However, the said Appeal was dismissed by the High Court and the High Court confirmed the sentence passed by the learned Special Judge. Hence, being aggrieved by the impugned Order dated 01.10.2018 of the High Court the Appellant preferred the present Appeal.

The present Appeal is vehemently opposed by the Learned Counsel appearing on behalf of the State of Chhattisgarh, Respondent herein.

The substantial issues/contentions raised by the Appellant for the Supreme Court’s decision thereto are as follows:-

1. The first issue raised on behalf of the Appellant was that the person (ASI J.K. Sen) who seized the articles and lodged FIR also participated in investigation and therefore the complainant and the investigator being the same the trial is vitiated. Therefore the Accused/Appellant is entitled to acquittal.

In this regard, the Supreme Court rejected the above contention of the Appellant and said that the investigation has been carried out by police inspector Ashish Shukla, and Shri J.K. Sen, only recorded the FIR. The Supreme Court further observed that all the aforesaid police witnesses are found to be reliable and trustworthy. The Court also stated that it is a settled law that the testimony of the official witnesses cannot be rejected on the ground of non­corroboration by independent witness. The Supreme Court relied on the case of Surinder Kumar v. State of Punjab, [(2020) 2 SCC 563], on the evidence of police officials/police witnesses and held that the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials.

2. The second substantial issue raised by the Appellant is that the seizure of Contraband/Ganja from the Appellant/Accused from his motor cycle is also doubtful as its number on the different documents produced by the prosecution is not same;

While dealing with this issue the Supreme Court observed and held that in the present case the Appellant and the other Accused person were found on the spot with the contraband articles in the vehicle. It said that to prove the case under the NDPS Act, the ownership of the vehicle is not required to be established. It is enough to establish and prove that the contraband articles were found from the accused. It was noted by the Court that the commission of an offence is required to be proved under the NDPS Act and which has been successfully proved by the prosecution evidence on record.

Thus, the Supreme Court did not find any discrepancy in the impugned Judgment and Order of its subordinate Courts. Therefore, the present Appeal was dismissed and the impugned Judgment and Order of the High Court was upheld by the Supreme Court.

Lakshmi Vishwakarma

Associate

The Indian Lawyer