IMPORTANT POINT
Conviction cannot be made on preponderance of probability and right of accused to a fair trial could not be whittled down.

JUDGMENT

NAVIN SINHA, J.

The acquittal of the appellant by the Special Judge, Shimla in Sessions Trial No.7-S/7/2012, from the charge under Sections 20 and 61 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘the Act’) has been reversed by the High Court. The appellant has been sentenced to fifteen years imprisonment and fine of Rs.2,00,000/-. Thus the present appeal.

2. The appellant is stated to have been apprehended at Majhotli, by the police party, on suspicion, at about 6.15 A.M. after he disembarked from the State public transport bus going from Nerwa to Chamunda. Two kilograms of Charas is stated to have been recovered from a bag in his possession in presence of PW-2, Sita Ram an independent witness. DW-1 Shayam Singh, the depot in-charge at Nerwa, and DW-2 Khem Raj, the conductor of the bus in question were examined as defence witnesses.

3. After consideration of the entirety of the evidence, particularly that of PW-2 and DW-2, and also noticing that PW-1, Constable Rakesh Kumar, an eye-witness to the incident, had not been mentioned as a witness in the seizure memo Exhibit PW-1/B, the Special Judge opined that two theories had emerged with regard to the accusations against the appellant. The appellant was acquitted, giving him the benefit of doubt.

4. The High Court reversed the acquittal, holding that PW-2 had admitted his signatures on Exhibit PW-1/B, the bag along with the narcotic, Ex.PW-2/A seal impression, Ex.PW-2/D the arrest memo and the Ex.PW-2/E personal search memo. No complaint had been lodged by the witness that he had been compelled by the police to sign the documents under pressure. The statements of the official witnesses, PW-1 Rakesh Kumar and PW-6 Head Constable Parmanand, were trustworthy, inspiring confidence, and could not be rejected only on the ground that they were police personnel. Any discrepancy with regard to distance and travelling time between Nerwa and Majhotli could be attributed to memory loss with passage of time, and was not required to be with mathematical precision. The time with regard to purchase of bus ticket had not been established.

5. Learned counsel for the appellant submits that he has been falsely implicated. He was deboarded from the bus at Chopal after it arrived from Majhotli and the narcotics planted on him. There had been no recovery from him. The bus ticket evidently reveals that he boarded the bus at 6:51 A.M. The question of his being apprehended at 6:15 A.M. simply does not arise. The road distance from Nerwa to Majhotli was 26 kms. as deposed by DW-1. In the hills, it would have taken the bus at least one hour or more, to cover this distance. The bus could not have reached Majhotli till 8:00 A.M. or thereafter. PW-2, the independent witness, deposed that he was stopped by the police at about 10.30 A.M. at Majhotli and after checking his motor cycle papers was allowed to leave. He was called to the Police Station at 1.00 P.M. and asked to put his signatures on certain documents. The witness denied any search, seizure and recovery from the appellant in his presence. If an independent witness was available, and relied upon by the prosecution, his evidence could not be discarded without reason, to hold that the police version was the truth. Additional submissions were made with regard to non-compliance with Section 50 of the Act, as there was personal search also, and that the complainant himself could not be the investigating officer. Reliance was placed on Basappa vs. State of Karnataka, 2014 (5) SCC 154 that if two views were possible, the acquittal ought not to have been interfered with in appeal.

6. We have considered the submissions on behalf of the parties, and also examined the evidence and other materials on record.

7. The public bus, on which the appellant was traveling, was going from Nerwa to Chamunda. The ticket issued to the appellant Exhibit DX, proved by the bus Conductor DW-2, bears the time of issuance 6.51 A.M.,