REPORTABLE

IN THE SUPREME COURT OF INDIA   

CRIMINAL APPELLATE JURISDICITION   

CRIMINAL APPEAL NOS.1231-1232 OF 2009     Iqbal Moosa Patel                            …Appellant   

Versus

 State of Gujarat                              …Respondent     With   (Criminal  Appeal  No.1574  of  2009  and  Criminal  appeal  No.__________of 2011 (Arising out of SLP (Crl.) No.5583  of 2009)      

J U D G M E N T     

T.S. THAKUR, J.   

 1.       Leave granted.

2. These appeals by special leave are directed against  

a common judgment and order passed by the High Court of  

Gujarat whereby Criminal Appeals No.2327 of 2006, 343 of  

2007, 754 of 2007 and 1235 of 2007 have been dismissed  

and  the  conviction  of  the  appellants  for  offences  

punishable under Section 8(c), read with Sections 21 and

29 of the Narcotic Drugs and Psychotropic Substances Act,  

1985 (hereinafter referred to as “the NDPS Act”) upheld.  

While appellants in Criminal Appeals No.2327 of 2006 and  

754 of 2007 have been sentenced to undergo twelve years  

of rigorous imprisonment with a fine of Rs.2 lakhs, and  

in default to further undergo simple imprisonment for two  

years, appellants in Criminal Appeals No.343 of 2007 and  

1235 of 2007 have been sentenced to undergo ten years of  

rigorous imprisonment with a fine of Rs.1 lakh, and in  

default to further undergo simple imprisonment for one  

year. The  facts  giving  rise  to  the  conviction  and  

sentence of the appellants have been set out in detail by  

the High Court in the order under appeal hence need not  

be  detailed  over  again  except  to  the  extent  it  is  

absolutely  necessary  to  do  so.  Briefly  stated  the  

prosecution case is that a certain secret information was  

received by Mr. K.C Chudasma, Inspector, Anti-Terrorist  

Squad  which  was  passed  on  to  Mr.  P.S.Tomar,  Zonal  

Director,  Narcotics  Control  Bureau,  Ahmedabad.  The  

information  suggested  that  Accused  No.2  Mr.  Hemaram  

Chaudhary  was  the  kingpin  of  a  syndicate  involved  in  

smuggling  and  interstate  trafficking  of  narcotic  

substances.  Accused No.3-Shri Derajram Jat was the man  

allegedly carrying out the operations at the instance of  

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the  said  Mr.  Hemaram  Chaudhary.  The  information  so  

received was used to intercept and search a truck bearing  

registration number RJ-04-G-1305 on 29thJune, 2001 at Lal  

Bahadur  Shashtri  Bridge,  Pirana  area  in  the  city  of  

Ahmedabad while the same was returning from Bharuch. The  

truck  was  driven  by  accused  no.4-Ashuram  Durgaram  

Choudhary  while  accused  no.3-Derajram  Jat  was  

accompanying him. The search of the truck led to the  

seizure  of  psychotropic  drugs  from  the  aforesaid  two  

persons who revealed that the consignment in question had  

been supplied by Mr. Hemaram Choudhary-accused no.2.  On  

the  basis  of  the  information  so  collected  and  the  

disclosure made by the driver of the truck and Derajram  

Jat-accused no.3.  Appellant-Iqbal Moosa Patel was taken  

into custody and his statement under Section 67 of the  

NDPS  Act  recorded.   A  raid  was  then  carried  out  on  

7th July,  2001  at  village  Varadia,  Khadaki  Street,  

District  Bharuch,  which  led  to  the  seizure  of  heroin  

weighing 3.056 kgs. and cash of Rs.1,17,500/- from the  

residence of appellant No.1 Iqbal Moosa Patel. In his  

statement recorded under Section 67 of the N.D.P.S. Act  

the said accused admitted having purchased four packets  

of  brown  sugar  from  one  Master  and  Bhaikhanbhai  both  

residents of Badmer in  Rajasthan in the month of March  

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2001, out of which one packet had already been sold to  

one Shakur while the remaining three were seized by the  

respondent from his residence as mentioned above.  On the  

basis of the material placed before the Trial Court the  

accused persons were charged with different offences to  

which the accused pleaded not guilty and claimed a trial.

3. In  support  of  its  case  the  prosecution  examined  

eight  witnesses  apart  from  relying  upon  several  

documents. In their statements under Section 313 of the  

Cr.P.C., the accused denied their involvement and alleged  

that their statements under Section 67 of the NDPS Act  

had been recorded under duress. Accused also examined as  

many as fourteen witnesses in their defence.  

4. The  Trial  Court  eventually  held  all  the  accused  

guilty  and  convicted  and  sentenced  them  to  undergo  

imprisonment  for  varying  terms.  Aggrieved  by  the  

judgment  and  order  passed  by  the  Sessions  Court  the  

appellants preferred appeals before the High Court which,  

as  noticed  earlier,  have  been  dismissed  by  the  High  

Court, upholding the judgment and order passed by the  

Trial Court. The present appeals by special leave assail  

the said judgment and order of the High Court.

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5. We have heard learned counsel for the parties at  

some length and perused the record. Apart from the oral  

submissions made at the bar; written submissions have  

also  been  filed  on  behalf  of  appellants  in  Criminal  

Appeals  No.1231-1232  of  2009  and  No.1574  of  2009.   

According  to  learned  counsel  for  Ashuram  Durgaram  

Chaudhary appellant in Criminal Appeal No.1574 of 2009  

and the written submissions filed by him the truck driven  

by  the  said  appellant  was  no  doubt  intercepted  and  

searched on 29th June, 2001 but nothing incriminating was  

found  even  when  the  truck  was  unloaded  and  searched  

thoroughly and all the relevant papers such as insurance,  

permit etc. recovered from the driver’s cabin.  A bag was  

no  doubt  recovered  from  under  the  seat  on  which  the  

accused No.3-Derajram Jat was sitting who admitted before  

the raiding party that the same belonged to him. Written  

submissions further state that four packets of heroin  

were found from the said bag eventually leading to the  

filing of the charge-sheet against the said accused no.3-

Derajram  Jat  including  appellant-Ashuram  Durgaram  

Chaudhary-accused no.4 the driver of the truck. It is  

contended that appellant-Ashuram Durgaram Chaudhary has  

been falsely implicated as he had no knowledge of the  

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fact  that  accused  no.3-Derajram  Jat  was  carrying  any  

contraband in his bag which the latter had kept under his  

seat. Para 3 of the written submissions filed on behalf  

of the appellant- Ashuram Durgaram Chaudhary reads as  

under:

 “3.    That the petitioner herein has been  falsely implicated in the matter.  The other  accused  persons  are  stranger  to  the  petitioner.  He has nothing to do with the  other  accused  person  or  with  the  goods  seized from them.  On the date of incidence  the  petitioner  herein  had  no  knowledge  of  the fact that accused no.3 was carrying any  contraband  with  him  in  his  bag  which  was  kept  under  the  seat  on  which  the  accused  no.3 was sitting.  The entire story of the  prosecution  is  false  and  concocted  as  is  clear from the judgment of the Trial Court  which eschewed the statement recorded under  section 67 of the NDPS Act and also of Mr.  Tomar  (PW-5).  The  Evidence  of  the  Panch  witnesses to the recovery shows that there  was  no  ring  of  truth  in  the  prosecution  story.”

                                                               6. On  behalf  of  the  appellant-Iqbal  Moosa  Patel  it  

was, inter  alia,  contended  that  the  prosecution  story  

was totally false and that the Trial Court had rightly  

rejected  as  unworthy  of  any  credit  the  statement  

allegedly recorded under Section 67 of the NDPS Act.  It  

was further submitted that out of two Panch witnesses  

PW3-Jignesh  Jaswantbhai  Modi  had  not  supported  the  

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prosecution  case  including  the  recovery  of  the  

contraband  from  the  residence  of  the  appellant-Iqbal  

Moosa Patel.  Relying upon the decision of this Court  

in Jagdish v. State  of  M.P. 2003  (9)  SCC  159  the  

appellant  claimed  benefit  of  doubt. It  was  further  

argued  that  the  deposition  of  Mr.  Bhalla,  the  

Investigating Officer was not reliable and could not be  

made a basis for finding the appellant-Iqbal Moosa Patel  

guilty. The statement of the appellant-Iqbal Moosa Patel  

had been according to the learned counsel recorded after  

the search of the residence of the appellant had been  

completed.  It  was  contended  that  the  appellant-Iqbal  

Moosa  Patel  is  an  agriculturist  and  a  law-abiding  

citizen of India who had already spent 9½ years in jail  

out of a total 12 years to which he has been sentenced.  

7. Learned  counsel  for  the  remaining  appellants  

submitted that the prosecution had failed to prove its  

case beyond a reasonable doubt and the evidence adduced  

by it suffered from serious contradictions which made it  

unsafe to place any reliance upon the same.

8. On behalf of the respondents it was argued that on  

the  basis  of  the  secret  information  received  by  the  

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Anti-Terrorist  Squad  which  was  passed  on  to  the  

Narcotics  Control  Bureau  (NCB)  Ahmedabad,  a  large  

quantity of heroin weighing 3.056 kgs. was seized from  

the truck in which accused no.3-Derajram Jat and accused  

no.4-Ashuram Durgaram Chaudhary were traveling. All the  

accused persons had made statements revealing that the  

buyer of the consignment was one Shri Iqbal Moosa Patel-

accused no.1 whom they could not contact and, therefore,  

they  were  returning  back  to  Rajasthan.  It  was  also  

stated that a consignment of 4 kgs. was earlier supplied  

to accused no.1-Iqbal Moosa Patel sometime around mid  

March  2001  which  led  the  NCB  to  raid  the  house  of  

accused  no.  1-Iqbal  Moosa  Patel.  It  was  further  

submitted  that  pursuant  to  the  said  information  the  

house  of  appellant-accused  no.1-Iqbal  Moosa  Patel  was  

raided on 7th July, 2001 that led to the seizure of 3  

kgs.  of  heroin  and  a  cash  of  Rs.1,17,500/-  It  was  

submitted that special leave petition (Crl.) No.8029 of  

2008 filed against the very same judgment by accused  

no.2-Hemaram  Chaudhary  having  been  dismissed  by  this  

Court, there was no reason for this Court to take a  

different view, in the present appeals.  

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9. We  have  given  our  careful  consideration  to  the  

submissions  made  at  the  bar  including  those  made  in  

writing. The Trial Court as also the High Court have  

concurrently come to the conclusion that the statements  

made by all the accused persons except accused no.1-

Iqbal Moosa Patel were voluntary and reliable.  So also  

the Trial Court and the High Court have held that the  

recovery of the narcotic substance from the truck driven  

by  appellant  no.4-Ashuram  Durgaram  Chaudhary  in  which  

the appellant no.3 was also traveling had been clearly  

established. The recovery of the narcotic substance from  

the house of the appellant-Iqbal Moosa Patel has also  

been held by both the Courts below to have been proved  

beyond a reasonable doubt. The assertion of appellant-

Iqbal Moosa Patel that the said substance was planted to  

implicate him has been rejected by the Trial Court in  

the following words:

“However, the Court is of the firm belief  that considering the evidence of Mr. Bhalla,  who  was  an  intelligence  officer  at  the  relevant  point  of  time  and  from  other  documentary  evidence  and  other  proved  circumstances, there is no reason as to why  visit of officer of NCB at the residence of  A-1  at  Bharuch  should  not  be  believed.  Going by the version of DW-13, wife of A-1  also said that these officers had visited on  07.07.2001  her  residence  alongwith  her  

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husband  although  she  had  charged  them  for  ransacking  the  entire  household  and  other  belongings,  but  this  further  fortifies  factum of visit and the search having been  carried out and also the seizure of 3.056  kgs. of heroin.  The Court also has to bear  in mind that had there been an intention to  concoct and plant heroin so as to implicate  A-1, the commercial quantity as per the law  is only 250 gms. and there would not have  been any need for NCB to keep moiré than 250  gms. of heroin and the same could have been  also done at Mumbai rather bringing him to  his  own  residence  and  thereby  creating  an  evidence for the defence with regard to the  treatment meted out to the accused and other  facts.  As this house where the search had  been  carried  out  belongs  to  A-1  and  this  huge quantity of heroin had been seized from  his bed room, vivid description of which has  been given in the cross-examination by Mr.  Bhalla, there is earthly no reason not to  believe him on this vital aspect.”  

10. The  High  Court  affirmed  the  above  finding  and  

rejected  the  contention  that  the  appellants  were  

entitled to the benefit of doubt for in the opinion of  

the High Court the charge framed against the appellant  

had been satisfactorily proved.

11. There is, in our opinion, no error or perversity in  

the view taken by the Trial Court or the High Court for  

that matter to warrant our interference under Article  

136 of the Constitution of India. The prosecution had on  

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the depositions of the witnesses examined by it and the  

documents produced at the trial, established that a raid  

based on the secret information received by the Anti-

Terrorist  Squad  which  was  passed  on  to  the  Narcotic  

Control  Bureau  indeed  conducted  and  truck  bearing  

registration  number  RJ-04-G-1305  intercepted  and  

searched. In the course of the said search 3.056 kgs. of  

heroin  was  recovered  from  the  possession  of  accused  

no.4-Ashuram  Durgaram  Chaudhary  who  was  driving  the  

truck  and  accused  no.3-Derajram  Jat  accompanying  

him.  It is noteworthy that the fact that the truck was  

intercepted  and  searched  by  the  authorities  was  not  

disputed  by  appellant-Ashuram  Durgaram  Chaudhary   the  

driver of the said truck nor is it disputed that 3.056  

kgs. of heroin was recovered from the bag that was kept  

under  the  seat  on  which  accused  no.3-Derajram  Jat  

traveling with him in the truck was sitting.  Para 3 of  

the written submissions which we have extracted earlier  

simply  suggests  that  the  appellant-Ashuram  Durgaram  

Chaudhary the driver of the truck was not aware of the  

contents  of the  bag.  The  evidence on  record totally  

belies  the  version  belatedly  advanced  by  both  these  

appellants,  that  both  or  any  one  of  them  were/was  

unaware of the presence of the bag or its contents.  

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12. So  also  the  seizure  of  the  contraband  from  the  

residence of appellant-Iqbal Moosa Patel in Bharuch in a  

raid conducted on 7th July, 2001 is established on the  

basis of the evidence on record.  The argument urged on  

behalf of the appellant-Iqbal Moosa Patel that the house  

from where recovery was made was not in his exclusive  

possession  as  other  members  of  his  family  were  also  

living  in the  same has  also been  correctly repelled.  

The Trial Court has in this regard observed:       

“With  the seizure  of narcotic  substance from  the bed  room of A-1, which had no access except to the accused  and, therefore, it is to be held that A-1 alone was in  possession and control as far as seizure on 7.7.2001 is  concerned  and  for  the  seizure  of  29th it  was  clearly  found from the custody of A-3 and within the knowledge  of  A-4,  at  the  instance  of  A-2,  therefore,  invoking  these provisions under Section 35 and Section 54 of NDPS  Act qua these accused,  it becomes their duty to prove  beyond reasonable doubt that they were not in possession  even by leading the evidence given by defence witnesses  and in the opinion of this they have failed to so prove  and nullify the case of prosecution as had been proved  on record.”

13. That  brings  us  to  the  question  whether  the  

appellants could be given the benefit of doubt having  

regard  to  the  nature  of  the  evidence  adduced  by  the  

prosecution  against  them.   We  do  not  think  that  the  

appellants have made out a case for grant of any such  

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benefit.  It is true that the prosecution is required to  

establish its case beyond a reasonable doubt, but that  

does not mean that the degree of proof must be beyond a  

shadow of doubt.  The principle as to what degree of  

proof  is  required  is  stated  by  Lord  Denning  in  his  

inimitable  style  in  Miller  v.  Minister  of  Pensions  

(1947) 2 ALL ER 272:

“That  degree  is  well  settled.   It  need  not  reach  certainty,  but  it  must  carry  a  high  degree  of  probability.   Proof  beyond  reasonable  doubt  does  not  mean proof beyond a shadow of a doubt.  The law would  fail to protect the community if it permitted fanciful  possibilities to deflect the course of justice.  If the  evidence is so strong against a man as to leave only a  remote possibility in his favour which can be dismissed  with sentence ‘of course, it is possible but not in the  least probable,’ the case is proved beyond reasonable  doubt….

It is true that under our existing jurisprudence in a  criminal matter, we have to proceed with presumption of  innocence, but at the same time, that presumption is to  be judged on the basis of conceptions of a reasonable  prudent man.  Smelling doubts for the sake of giving  benefit of doubt is not the law of the land.”              

14. Reference may also be made to the decision of this  

Court in Sucha Singh & Anr. v. State of Punjab (2003) 7  

SCC 643 where this Court has reiterated the principle in  

the following words:

“…….Exaggerated devotion to the rule of benefit of doubt  must not nurture fanciful doubts or lingering suspicion  and thereby destroy social defence. Justice cannot be  made sterile on the plea that it is better to let a  

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hundred guilty escape than punish an innocent. Letting  the guilty escape is not doing justice according to law.  (See  Gurbachan Singh v.  Satpal Singh AIR 1990 SC 209).  Prosecution  is  not  required  to  meet  any  and  every  hypothesis  put  forward  by  the  accused.  A  reasonable  doubt is not an imaginary, trivial or merely possible  doubt, but a fair doubt based upon reason and common  sense. It must grow out of the evidence in the case. If  a case is proved perfectly, it is argued that it is  artificial; if a case has some flaws inevitable because  human beings are prone to err, it is argued that it is  too  imperfect.  One  wonders  whether  in  the  meticulous  hypersensitivity to eliminate a rare innocent from being  punished, many guilty persons must be allowed to escape.  Proof  beyond  reasonable  doubt  is  a  guideline,  not  a  fetish.”  

15. In  the  totality  of  the  above  circumstances  and  

having regard to the fact that the Trial Court as also  

the High Court have examined all aspects of the matter  

and minutely looked into various facets of the case set  

up by the prosecution and that by the defence including  

the defence evidence adduced at the trial, we see no  

reason  to  interfere.  As  rightly  pointed  out  by  the  

respondent an appeal arising out of the same judgment  

and order filed by accused no.2-Hemaram Chaudhary has  

already been dismissed by this Court.  That being so we  

do not see any reason much less a compelling one to  

strike a discordant note.  In the result these appeals  

also  fail  and  are  hereby  

dismissed.                                                

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……………………………J.                                                  

(MARKANDEY KATJU)   

                                                 ……………………………J.

                                      (T.S. THAKUR) New Delhi January 12, 2011

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