KALLU KHAN versus STATE OF RAJASTHAN

Citation: [2021] 9 S.C.R. 700 · Decided: 11-12-2021 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 9 S.C.R.
   [2021] 9 S.C.R. 700
700
KALLU KHAN
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 1605 of 2021)
DECEMBER 11, 2021
[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
Narcotic Drugs and Psychotropic Substance Act – ss.8, 21,
43, 50 – Appellant convicted u/ss.8, 21 – Affirmed by High Court –
On appeal, held: As recovery of the contraband from appellant’s
motorcycle was a chance recovery on a public road, the provisions
of s.43 would apply – Seizure of the motor cycle from appellant is
proved beyond reasonable doubt, therefore, the question of
ownership of vehicle is not relevant – Compliance of s.50 not
attracted in the present case – Concurrent findings by courts holding
the appellant guilty and directing him to undergo the prescribed
sentence not perverse warranting any interference.
Dismissing the appeal, the Court
HELD : 1.1 On apprehending the accused, while making
search of the motor cycle, 900 gm of smack was seized to which
seizure and sample memos were prepared, as proved by the
departmental witnesses. In the facts of the case at hand, where
the search and seizure was made from the vehicle used, by way
of chance recovery from public road, the provisions of Section 43
of the NDPS Act would apply. The recovery made by PW6 cannot
be doubted in the facts of this case. [Para 11][707-B-C]
S.K. Raju vs. State of West Bengal (2018) 9 SCC
708:[2018] 10 SCR 731; S.K. Sakkar vs. State of West
Bengal (2021) 4 SCC 483:2021 AIR 2870 – relied on.
1.2 The Trial Court on appraisal of the testimony of
witnesses, Constable-PW1, Constable-PW2, S.I.-PW6 and
Constable-PW8, who were members of the patrolling team and
the witnesses of the seizure, proved beyond reasonable doubt,
when they were on patrolling, the appellant came driving the
seized vehicle from opposite side. On seeing the police vehicle,
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he had taken back the motor cycle which he was riding. However,
the police team apprehended and intercepted the accused and
made the search of vehicle, in which the seized contraband smack
was found beneath the seat of the vehicle. However, while making
search at public place, the contraband was seized from the motor
cycle driven by the accused. Thus, recovery of the contraband
from the motor cycle of the appellant was a chance recovery on a
public road. As per Section 43 of NDPS Act, any officer of any of
the departments, specified in Section 42, is having power of
seizure and arrest of the accused from a public place, or in transit
of any narcotic drug or psychotropic substance or controlled
substance. The said officer may detain in search any person whom
he has reason to believe that he has committed an offence
punishable under the provisions of the NDPS Act, in case the
possession of the narcotic drug or psychotropic substance
appears to be unlawful. The seizure of the motor cycle from him
is proved beyond reasonable doubt, therefore, the question
of ownership of vehicle is not relevant. [Para 12][707-D-H;
708-A-B]
Rizwan Khan vs. State of Chhattisgarh (2020) 9 SCC
627 : 2020 AIR 4297; State of Rajasthan vs. Sahi
Ram (2019) 10 SCC 649 : [2019] 14 SCR 1117 –
relied on.
2.1 It is not a case in which the appellant has proved beyond
reasonable doubt that while sending the samples for forensic
tests, seals were not intact or the procedure has been materially
not followed by protecting the seized substance or was not stored
properly. The appellant has failed to show that findings recorded
by two Courts suffer from any perversity or illegality on the said
issue and warrant interference. No recovery of contraband from
the person of the accused has been made to which compliance of
the provision of Section 50 NDPS Act has to follow mandatorily.
In the present case, in the search of motor cycle at public place,
the seizure of contraband was made, as revealed. Therefore,
compliance of Section 50 does not attract in the present case.
[Paras 13-15][708-C-D, F-H]
Than Kumar vs. State of Haryana (2020) 5 SCC 260 :
[2020] 3 SCR 1090; Vijaysinh Chandubha Jadeja vs.
KALLU KHAN v. STATE OF RAJASTHAN
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
State of Gujarat (2011) 1 SCC 609 : [2010] 13 SCR
255; Surinder Kumar vs. State of Punjab (2020) 2 SCC
563 : [2020] 1 SCR 307– relied on.
Union of India vs. Mohanlal and another (2016) 3
SCC 379 : [2016] 1 SCR 651 – held inapplicable.
State of Punjab vs. Baljinder Singh (2019) 10 SCC
473 : [2019] 13 SCR 520 – referred to.
2.2 Merel
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