TaxTMI 
TaxTMI 
2020 (9) TMI 397
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....d to as the 'NDPS Act') and sentencing him to undergo five years rigorous imprisonment and fine of Rs. 25,000/, in default, to undergo further one year's rigorous imprisonment, original accused no.1 has preferred the present appeal. 3. The facts leading to the present appeal are, that the appellant - accused no.1 and one another - Pukhraj were charged for the offence under Section 20(b)(ii)(B) of the NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance - Ganja. As per the case of the prosecution, 20 kg of Ganja was recovered from the possession of the appellant from the motor cycle. Nothing objectionable was found from the person of the accused. Accused were informed about Section 50 of the NDPS Act through a notice and were also told about their legal rights that if they want their search was to be done either by a Gazetted Officer or Judicial Magistrate of First Class or any other investigating officer. After giving permission that the search can be conducted by any investigating officer, accused was asked to open the sack kept on his motor cycle and on opening the same, a bag of Ganja weighing 20kg was found. Panchnama was made of seizure. Samples of na....
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....r Section 313, Cr.P.C. was recorded. The case on behalf of the appellant - original accused no.1 was of total denial. 4. After conclusion of the trial and on appreciation of the evidence on record, the learned Special Judge held the accused 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's rigorous imprisonment. 5. 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. Before the High Court, one of the main submissions on behalf of the appellant was that as ASI J.K.Sen (PW4), who seized the articles and lodged FIR also participated in investigation and therefore the complainant and the investigator being the same, in view of the decision of this Court in the case of Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627, the accused is entitled to acquittal. Number of other submissions were also made before the High Court on behalf of the accused, as mentioned in paragraph 4 of the impugned....
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....on the samples of contraband allegedly recovered from the appellant/accused; viii) that non-examination of constables who accompanied PW4 at the time of recovery also creates serious doubt on the prosecution case. 6.1 Learned counsel appearing for the appellant/accused has further submitted that there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis of the permissive inference would be that serious doubts are created with respect to the prosecution's endeavour to prove the fact of possession of contraband by the appellant/accused; 6.2 Learned counsel appearing for the appellant/accused has further submitted that by now the appellant/accused has already undergone three years of sentence out of five years awarded to him. It is prayed that as Section 20(b)(ii)(B) of the NDPS Act does not provide for any minimum sentence and if this Court is not satisfied with the submissions of the appellant on merits, then in that case, a lenient view may be taken and sentence of five years may be reduced to the period already undergone by the appellant/accused. 7. The present appeal is vehemently opposed by the learned counsel a....
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....kla, PW5 and Shri J.K. Sen, PW4 only recorded the FIR. It is submitted that even otherwise in view of the recent decision of this Court in the case of Mukesh Singh v. State (Narcotic Branch) (Special Leave Petition (Criminal) Diary No.39528/2018, decided on 31.08.2020) under the NDPS Act, the decision of this Court in the case of Mohan Lal (supra) is not a good law; 7.5 It is further submitted that in the present case finding of guilt of the accused is based upon corroborative statements of PW4 (J.K. Sen) with PW3(Sudeep Prasad Mishra), PW5 (Ashish Shukla), PW7 (Nagender Singh), PW8 (Ishwar Prasad Verma) coupled with the forensic report. It is submitted that in the present case the prosecution case does not rest solely on the testimony of PW4 as is submitted on behalf of the accused; 7.6 Now so far as the submission on behalf of the accused that as in the memorandum of Superintendent of Police the sample is written as 'A1', whereas recovery from the appellant - Rizwan Khan was marked as 'B1' and 'B2' and therefore there are material contradictions and therefore it is doubtful whether the samples which were seized from the appellant - accused were sent to the FSL, it is vehemently....
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....catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case, [see Pardeep Kumar (supra)]. In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under: "15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) "It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to....
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....h Singh (supra) overruling the decision of this Court in the case of Mohan Lal (supra), learned counsel appearing for the accused has not pressed the above ground. Even otherwise, it is required to be noted that in the present case the aforesaid issue does not arise as after the FIR was recorded by Shri J.K. Sen, PW4, thereafter the case was investigated by Ashish Shukla, PW5. Therefore, on facts, both the complainant and the investigating officer were different. 11. Now so far as the submission on behalf of the accused that the ownership of the motor cycle (vehicle) has not been established and proved and/or that the vehicle has not be recovered is concerned, it is required to be noted that in the present case the appellant and the other accused persons were found on the spot with the contraband articles in the vehicle. To prove the case under the NDPS Act, the ownership of the vehicle is not required to be established and proved. It is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraba....