Hanif Khan And Anr vs State
2021 Latest Caselaw 18972 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Appeal No. 542/2016

1. Adam Godwin son of Godwin Timoth, Resident of Post Box No. 45071, 261 Block, Sweng Dar Uslem, Tanzania

2. Umar Yusuf son of Ysufu Mussa, Resident of Post Box No. 2305, House No. 0305, Tanga, Dar Uslem, Tanzania

3. Adam Mohd. son of Mohd. Pazi, Resident of Post Box No. 208201, House No. 082, Karisco, Dar Uslem, Tanzania

4. Khangar Singh son of Shri Indra Singh, Resident of Tamlor, Gadra Road Police Station, Tehsil Shiv, District Barmer (Lodged in Central Jail, Jodhpur)

----Appellants

Versus

State of Rajasthan

----Respondent

Connected With

S.B. Criminal Appeal No. 509/2016

1. Hanif Khan s/o Mithu Khan, by caste Musalman, R/o Makkhan - Ka - Paar, P.S. Gadra Road, District Barmer

2. Ikramuddin @ Ikru s/o Shri Hamja Khan, by caste Musalman, R/o 122, Hejam-Ka-Pada, Sajjan-Ka-Paar, P.S. Ramsar, District Barmer (Presently lodged at Central Jail, Jodhpur)

----Appellant

Versus

State of Rajasthan

----Respondent

For Appellant(s) : Mr. B.S. Rathore, Mr. Nishant Bora & Mr. Bhagirath Ray Bishnoi For Respondent(s) : Mr. Sudhir Tak, Public Prosecutor

(2 of 14) [CRLA-542/2016]

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

December 14, 2021

1. Both the aforesaid criminal appeals shall stand decided

by this common judgment as they arise out of the same incident

and judgment impugned.

2. The appellants - Adam Godwin, Umar Yusuf, Adam

Mohd. & Khangar Singh have preferred S.B. Criminal Appeal

No. 542/2016 and the appellants - Hanif Khan & Ikramuddin @

Ikru have preferred S.B. Criminal Appeal No. 509/2016 under

Section 374(2) Cr.P.C against common impugned judgment &

order dated 31.05.2016 passed by Special Judge, N.D.P.S. Cases,

Jodhpur in Sessions Case No. 23/2009 (State of Rajasthan Vs.

Adam Godwin & Ors.), whereby out of total nine accused persons,

three of them were acquitted from the charges levelled against

them, whereas, the accused-appellants were convicted and

sentenced as under :-

Appellants - Adam Godwin, Umar Yusuf & Adam Mohd. in

Criminal Appeal No. 542/2016 Offence Sentence Fine Default sentence u/s 8/21(c) of 20 years RI Rs. 2,00,000/- 3 years RI the NDPS Act each

Appellant - Khangar Singh in Criminal Appeal No.

542/2016 & Appellants - Hanif Khan & Ikramuddin @ Ikru

in Criminal Appeal No. 509/2016 Offence Sentence Fine Default sentence u/s 8/21(c) r/ 20 years RI Rs. 2,00,000/- 3 years RI w Sec. 29 of each the NDPS Act

(3 of 14) [CRLA-542/2016]

3. Brief facts of the case in short are that on 09.12.2008,

on the secret information, Loon Singh, S.I., Police Station

Udaimandir, District Jodhpur (P.W.7) with other police personnel

reached at Rai Ka Bagh Bus Stand, Jodhpur, where as per

information, they found three foreigners in suspicious condition.

On asking, they disclosed their names as Adam Godwin, Umar

Yusuf and Adam Mohd. They were carrying bags and suitcases

with them. On suspicion, the police after serving notice under

Section 50 of the N.D.P.S. Act, took search of their bags, in which,

each bag was found containing Heroin. The recovery of total

7.325 kgs, 7.396 kgs. and 6.320 kgs. of narcotic substance Heroin

was effected from Adam Godwin, Umar Yusuf and Adam Mohd,

respectively. The samples, from each bag, were taken and sealed.

The clothes and passports were also recovered from their bags.

F.I.R. No. 458/2008 was registered at Police Station Udaimandir,

District Jodhpur for the offence under Section 8/21 of the N.D.P.S.

Act. The aforesaid three foreign nationals were arrested on the

spot. On enquiry, they disclosed that they had received narcotic

substance in two suitcases from one person, who came in Bolero

Jeep. They received said substance at the instance of native of

Tanzania Abu Bakar and paid Rs. 2,20,000/- to the person with

covered face, who delivered the substance. After receiving

narcotic substance, they went to Durg Vilas Hotel in the taxi,

where they shifted the substance in other bags. They did not

know the number of Bolero vehicle. The substance was to be

taken to Delhi via Jaipur and was to be delivered at the instance of

Abu Bakar. The weight of total substance was 21 kgs., for which,

they were promised to pay 5000 USD. After investigation, the

charge-sheet was filed against the accused Adam Godwin, Umar

(4 of 14) [CRLA-542/2016]

Yusuf and Adam Mohd for the offence under Section 8/21 of the

N.D.P.S. Act, against accused Iliyas for the offence under Section

8/21 read with Sections 23, 25 & 29 of the N.D.P.S. Act, against

accused Sardul Singh & Khangar Singh for the offence under

Section 8/21 read with Sections 25 & 29 of the N.D.P.S. Act and

against accused Ikramuddin, Hanif Khan & Jamal Khan for the

offence under Section 8/21 read with Section 29 of the N.D.P.S.

Act.

4. On charges being framed, all the accused pleaded not

guilty and sought trial. The prosecution in support of its case got

examined total 28 witnesses and documents were exhibited as

Ex.P/1 to Ex.P/93. The accused were examined under Section 313

Cr.P.C., in which they denied allegations made against them as

well as evidence on record. However, no evidence was produced

by them in defence.

5. The trial court after hearing the parties, passed

impugned judgment dated 31.05.2016 acquitting the accused

Jamal Khan, Iliyas and Sardul Singh from the charges levelled

against them but convicted and sentenced the appellants Adam

Godwin, Umar Yusuf & Adam Mohd. for the offence under Section

8/21(c) of the N.D.P.S. Act and the appellants Khangar Singh,

Hanif Khan and Ikramuddin @ Ikru for the offence under Section

8/21(c) read with Section 29 of the N.D.P.S. Act.

Aggrieved with impugned judgment of conviction, the

appellants Adam Godwin, Umar Yusuf, Adam Mohd. & Khangar

Singh have filed Criminal Appeal No. 542/2016 and the appellants

Hanif Khan and Ikramuddin @ Ikru have filed Criminal Appeal No.

509/2016.

(5 of 14) [CRLA-542/2016]

6. Heard learned counsel for the parties and perused the

record of the case as well as judgment impugned passed by the

trial court.

7. During arguments, learned counsel representing the

appellants Adam Godwin, Umar Yusuf & Adam Mohd., who are

foreign nationals, at the outset submitted that the appellants are

behind the bars for about than 13 years. The appellants do not

want to challenge the judgment of conviction passed by the trial

court against them, however, prayed to reduce the sentence of 20

years awarded to them by the trial court to the period already

undergone by them in prison. Learned counsel also prayed that

the sentence in default of payment of fine passed against the

appellants may also be reduced from 3 years to the period already

undergone by the appellants in jail.

8. On the point of reduction of sentence, learned counsel

for the appellants relied on the judgment of a coordinate Bench of

this Court passed in S.B. Criminal Appeal No. 185/2014

(Prem Singh Vs. Union of India) & another connected

appeal decided on 11.05.2016 wherein, 28 kgs. of contraband

Heroin was recovered and the coordinate Bench while relying upon

the judgments of the Hon'ble Supreme Court in the cases of

Balwinder Singh Vs. Asstt. Commr. Customs and Central

Excise reported in (2005) 4 SCC 146 and Shahejadkhan

Mahebubkhan Pathan Vs. State of Gujarat reported in

(2013) 1 SCC 570 has reduced the sentence of 20 years

awarded to the appellants to 10 years.

9. From perusal of the record, it reveals that the

appellants Adam Godwin, Umar Yusuf & Adam Mohd. were carrier

of Heroin in consideration of money. They received narcotic

(6 of 14) [CRLA-542/2016]

substance from some persons at the instructions of another

person. The main supplier Iliyas could not be convicted.

Considering the facts that the appellants have served about 13

years imprisonment and there is no previous conviction against

them on record, in the facts and circumstances of the case,

keeping in mind the judgment passed in the case of Prem Singh

(supra), the prayer of the appellants deserves to be partly

allowed.

10. Accordingly, while upholding the judgment dated

31.05.2016 passed by the trial court qua conviction of the

appellants - Adam Godwin, Umar Yusuf & Adam Mohd. for the

offence under Section 8/21(c) of the N.D.P.S. Act, the same is

modified to the extent that sentence of imprisonment awarded to

the appellants by the trial court is reduced from 20 years to the

period already undergone by them. The sentence of fine imposed

by the trial court against the appellants is maintained, however,

the sentence of imprisonment for default in payment of fine is

reduced from 3 years to 2 years. Upon depositing the fine, the

appellants shall be deported to their nation, for which the

Commissioner of Police, Jodhpur Metropolitan is directed to do

needful in accordance with law. The appellants will not be

permitted entry in the country (India) in future. The amount

recovered in their personal search including some Indian and US

currency and watch etc. shall be returned to them.

11. In the above terms, the Criminal Appeal No. 542/2016

qua the appellants Adam Godwin, Umar Yusuf & Adam Mohd. is

partly allowed.

12. As regards the remaining appellants i.e. appellant

Khangar Singh in Criminal Appeal No. 542/2016 and the

(7 of 14) [CRLA-542/2016]

appellants Hanif Khan and Ikramuddin @ Ikru in Criminal Appeal

No. 509/2016 are concerned, before deciding their appeals,

following relevant facts may be taken note of :-

A. Accused Iliyas who was acquitted by the trial court, as

per prosecution story, managed to smuggle the narcotic

substance Heroin from Pakistan with the help of his

maternal uncle Salim, who was native of Pakistan.

B. Iliyas with the help of other accused and the appellants -

Khangar Singh, Hanif Khan and Ikramuddin @ Ikru

alleged to have supplied the substance Heroin to foreign

nationals i.e. convicts Adam Godwin, Umar Yusuf and

Adam Mohd., who received the Heroin from them near

the road going from Shobhawato Ki Dhani to Basni

Shramik Colony, Jodhpur, as mentioned in site plan

(Ex.P/46).

C. The foreign nationals came on the spot in a taxi, the

driver of which was Babulal (P.W.- 4).

D The prosecution mainly supported its case against the

accused-appellants on the basis of identification of the

appellants - Khangar Singh, Hanif Khan and Ikramuddin

@ Ikru by Babulal (P.W.- 4) during investigation and trial.

In addition to identification, the prosecution also relied

upon the information under Section 27 of the Indian

Evidence Act given by the appellants, in furtherance of

which, verification of place, where narcotic substance

was delivered to the foreign nationals by the appellants

herein viz. Khangar Singh, Hanif Khan and Ikramuddin

@ Ikru, was made.

(8 of 14) [CRLA-542/2016]

13. During arguments, learned counsel representing the

appellants - Khangar Singh, Hanif Khan and Ikramuddin @ Ikru

submitted that the appellant Ikramuddin @ Ikru was not identified

by Babulal (P.W.- 4) in the identification parade conducted during

the investigation. Learned counsel further submitted that

identification of the accused first time in the Court during evidence

cannot be relied upon to convict him for committing the offence.

As regards the appellant - Hanif Khan is concerned, learned

counsel submitted that though, the appellant - Hanif Khan was

identified by Babulal (P.W.- 4) in the identification parade during

the investigation, yet the said witness did not identify him in the

Court. P.W. - 4 Babulal did not utter a single word against the

appellant Hanif Khan in the Court during his examination. He was

also not declared hostile by the prosecution. Learned counsel

further submitted that it was not possible for Babulal (P.W.- 4) to

identify the persons who delivered the narcotic substance to the

foreign nationals. As per prosecution story, the persons who came

to deliver the substance had covered their faces. Learned counsel

further submitted that it was not clear that out of those persons,

who has delivered the substance to the foreign nationals. There

are contradictions in the evidence regarding number of persons

who actually delivered the narcotic substance to the foreign

nationals. The verification of place of delivery on the information

of the appellants has no evidentiary value since Babulal (P.W.- 4),

taxi driver, was already with the police and the police had ample

opportunity to discover the place of delivery before information

under Section 27 of the Evidence Act was alleged to be given by

the appellants. The bags in which the substance was carried to

Jodhpur and the bags in which it was found with the Adam Godwin

(9 of 14) [CRLA-542/2016]

and two other foreign nationals, were not produced as articles

before the trial court during trial. There was no evidence on

record to convict the appellants Hanif Khan and Ikramuddin @

Ikru. In the circumstances, he prayed for acquittal of the

appellants - Hanif Khan and Ikramuddin @ Ikru from the charges

levelled against them.

14. Learned counsel for the appellant - Khangar Singh

submitted that he was falsely implicated in this case. As per

prosecution, the appellant Khangar Singh had purchased the

suitcases from Gadra Road, Barmer but this fact could not be

proved by the prosecution. As per prosecution, search of the

house of Khangar Singh was conducted but nothing was recovered

from his possession. Learned counsel further submitted that

prosecution has failed to prove that Khangar Singh handed over

any narcotic substance to the foreign nationals. Learned counsel

further submitted that regarding memo of identification, the

accused-appellant - Khangar Singh was, though, identified by

Babulal (P.W.- 4) in the identification parade, conducted by the

police during investigation, however, Babulal (P.W.- 4) himself

admitted in his cross-examination that before identification, he

went to police station many times and persons lodged in the police

station were shown to him previously. This fact was also disclosed

by Khangar Singh to the Magistrate during identification parade.

In the circumstances, learned counsel prayed that the appellant -

Khangar Singh is also entitled for acquittal.

15. On the other hand, learned Public Prosecutor has

submitted that these three appellants i.e. Khangar Singh, Hanif

Khan and Ikramuddin @ Ikru delivered the narcotic substance to

the foreign nationals Adam Godwin, Umar Yusuf and Adam Mohd.

(10 of 14) [CRLA-542/2016]

He has relied upon the statement of P.W.- 4 - Babulal, who was

taxi driver, who was hired by the foreign nationals while going to

the place to receive the narcotic substance. He has also relied

upon the information under Section 27 of the Indian Evidence Act

given by the appellants and the verification of place of delivery in

pursuance thereof.

16. After perusing the record carefully, it appears that in

the recovery memo (Ex.P/8), it was mentioned that the faces of

the persons, who came to deliver the narcotic substance Heroin to

the foreign nationals were covered. This fact has been mentioned

in Ex.P/8 in the following terms :-

"ge VSDlh ds ekQZr ogkWa igqWps tgkWa ,d cksysjks thi ls ,d O;fDr fups mRrj dj vk;k o mlus nks vVsfp;ka ,d dkQh jax dh ,d xgjs gjs jax dh nsdj iqu% rRdky cksysjks thi dh rjQ pyk x;k ftldk eqWag <dk gqvk Fkk geus vcq cdj ls fy;s gq, nks yk[k chl gtkj :i;s geus eqWag <Wads gq, O;fDr dks fn;s"

17. P.W.- 4 - Babulal, taxi driver, in his cross-examination

also, admitted the suggestion of the defence counsel that three

persons were wearing blankets. No conversion took place

between him and the said persons. He saw three persons from a

distance of 15 feet. Babulal (P.W.- 4) in his cross-examination

also admitted that when he reached at the spot, it became dark.

In view of above admitted facts by Babulal (P.W.- 4), in the

considered opinion of this Court, it was not possible for Babulal

(P.W.- 4) to see the persons who delivered the Heroin to the

foreign nationals. The offence was committed in the present case

very cleverly taking all precautions to conceal the identity of the

persons who actually delivered the substance. Three persons

came in a Bolero vehicle and out of three persons, only one

(11 of 14) [CRLA-542/2016]

person came in contact with the foreign nationals and handed over

the substance after receiving money. The money received by

them was not recovered from the possession of any of the

appellants.

18. It is evident from the identification memo (Ex.P/27)

that Babulal (P.W.- 4) could not identify Ikramuddin @ Ikru during

identification parade, though, he was present in the parade. In

the above circumstances, the identification of appellant

Ikramuddin @ Ikru by Babulal for the first time in the Court during

examination-in-chief has no evidentiary value. The fact of

identification of Ikramuddin @ Ikru in the Court, though not

identified in the identification parade by Babulal as also not

identifying Hanif Khan in the Court but identified in identification

parade, indicates that Babulal was not in a position to identify the

persons who delivered the Heroin to the foreign nationals.

19. As emerges from the recovery memo (Ex.P/8), only one

person stepped down from the Bolero to deliver the Heroin then,

how it was possible for Babulal (P.W.- 4) to see other persons who

did not step down from the vehicle. It is also important to note

that after the incident, this witness went to police station so many

times in connection with the investigation of the matter. He has

admitted in his cross-examination that he went to the police

station 4-5 times before identification parade took place. He also

stated in the cross-examination that on asking the S.H.O.

regarding the persons who delivered the substance, he identified

them in the police station. During identification also, the accused

Khangar Singh, Hanif Khan and Ikramuddin @ Ikru stated before

the Magistrate that they were shown to the witness by the police.

It is also important to mention that accused Ikramuddin @ Ikru

(12 of 14) [CRLA-542/2016]

and Hanif Khan were arrested on 19.12.2008 and accused

Khangar Singh was arrested on 02.01.2009. The identification

parade was conducted after lapse of a considerable time on

18.02.2009, whereas, the witness Babulal (P.W.- 4) was available

with the police from the date of recovery itself. In the

circumstances, it cannot be said that the identification parade was

fair and credible.

20. Regarding role of the accused-appellant Khangar Singh,

from the statement of P.W.- 4 - Babulal, it is not clear as to what

was the exact role of Khangar Singh at the spot, where exchange

of money and Heroin was taken place. It is also not clear whether

Khangar Singh was present with the persons in the Bolero vehicle

and received any money from the foreign nationals and delivered

the substance, whereas, in the identification memo, Babulal

(P.W.- 4) described the role of accused Khangar Singh, Ikramuddin

@ Ikru and Hanif Khan in the same wordings, which seems to be

not correct. In the opinion of this Court, witness Babulal did not

disclose true story before the Court. In the above circumstances,

the evidence of Babulal regarding identification is not reliable and

cannot be accepted.

21. From perusal of the record, it reveals that the

Investigation Officer collected the call details of the accused and

placed the same on record. But the Investigation Officer did not

use these call details for establishing the guilt of the offenders. It

is not sufficient for the prosecution to only place on record various

call details. The Investigation Officer was required to link these

call details to the role of each of the accused. The call details

have not been proved during trial in accordance with provisions of

Section 65(b) of the Indian Evidence Act. In the considered

(13 of 14) [CRLA-542/2016]

opinion of this Court, these types of offences can better be proved

with the use of scientific methods.

22. The prosecution has relied upon the information under

Section 27 of the Indian Evidence Act (Ex.P/91, Ex.P/84, Ex.P/83

& Ex.P/87) given by accused Khangar Singh, Hanif Khan and

Ikramuddin @ Ikru regarding the place from where they received

the narcotic substance from Iliyas and delivered the same to the

foreign nationals. In addition to it, the information (Ex.P/89 &

Ex.P/90) was given by Khangar Singh regarding the shop from

where he purchased the suitcases. In pursuance to the above

information, site plans (Ex.P/46 & Ex.P/48) were prepared. In the

considered opinion of this Court, above information is not

admissible in evidence since no recovery was affected in

pursuance of the above informations.

23. The record also reveals that some persons who helped

the main accused Iliyas in concealing and sending the Heroin to

other parts of the nation, were not made accused in this case e.g.

statement of Sakhi Khan recorded by the police shows that he

travelled with Iliyas and delivered the narcotic substance to

someone, however, he was not made an accused. In the opinion

of the police, if he was considered to be a person helpful to prove

the offence against the accused, then provisions of Section 306

Cr.P.C. (tender of pardon to accomplice) could be availed against

him.

24. In the above background, the trial court has erred in

convicting and sentencing the accused-appellants Khangar Singh,

Hanif Khan and Ikramuddin @ Ikru for the offence alleged against

them and they deserve to be acquitted from the charges levelled

against them.

(14 of 14) [CRLA-542/2016]

25. Consequently, the Criminal Appeal No. 542/2016 qua

appellant - Khangar Singh and the Criminal Appeal No. 509/2016

filed by the appellants - Hanif Khan and Ikramuddin @ Ikru are

allowed. The judgment dated 31.05.2016 passed by the trial

court in Sessions Case No.23/2009 (State of Rajasthan Vs. Adam

Godwin & Ors.) qua the appellants Khangar Singh, Hanif Khan and

Ikramuddin @ Ikru is quashed and set aside and they are

acquitted from the charges levelled against them. They shall be

set at liberty forthwith, if not wanted in any other case.

26. Keeping in view the provisions of Section 437-A Cr.P.C.,

the appellants - Khangar Singh, Hanif Khan and Ikramuddin @

Ikru are directed to forthwith furnish a personal bond in the sum

of Rs. 50,000/- and a surety bond in the like amount before the

trial court. The bonds so furnished shall be effective for a period

of six months. The bonds shall contain an undertaking that in the

event of filing of Special Leave Petition against the judgment or on

grant of leave, the appellants on receipt of notice thereof, shall

appear before the Apex Court.

27. The original record of the trial court be returned back

forthwith.

(RAMESHWAR VYAS),J

Inder/-

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