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SUPREME COURT OF INDIA
N.V. RAMANA, SURYA KANT, HRISHIKESH ROY, JJ.
Raveen Kumar - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Appeal Nos. 2187-88 of 2011
Decided On : 26-10-2020
(A) Criminal Procedure Code, 1973 – Section 378 – Appeal against acquittal – There is no difference of power, scope, jurisdiction or limitation under Cr.P.C. between appeals against judgments of conviction or of acquittal – Appellate Court is free to reconsider questions of both law and fact, and reappreciate entirety of evidence on record – There is, nonetheless, a self-restraint on exercise of such power, considering interests of justice and fundamental principle of presumption of innocence – In practice, Appellate Courts are reluctant to interfere with orders of acquittal, especially when two reasonable conclusions are possible on same material. (Para 11)
(B) Narcotics, Drugs and Psychotropic Substances Act, 1985 – Section 20 – Constitution of India – Article 136 – Seizure of Charas – Reversal of acquittal by High Court – There is no legal necessity for Apex Court to reappreciate entire evidence merely on the premise that High Court has convicted appellant for first time in exercise of its appellate jurisdiction – Since irrelevant material was impermissibly relied upon by trial Court to arrive at an acquittal, High Court was adequately justified to interfere with and reverse the findings – Lack of independent witnesses are not fatal to prosecution case – However, such omissions cast an added duty on Courts to adopt a greater degree of care while scrutinising testimonies of police officers, which if found reliable can form basis of a successful conviction – Far from undermining prosecution version, statement of independent witness broadly corroborates and strengthens seizure of contraband substance from possession of appellant – High Court’s observations are unimpeachable – It would serve interests of justice to simply not disturb sentence of two years’ rigorous imprisonment and a fine of Rs.50,000 which has been awarded by High Court – Appeals dismissed. (Paras 14, 18, 19, 21, 22, 23, 25 and 26)
Facts of the case:
Appellant challenges judgment dated 23.04.2010 and the order dated 18.05.2010 passed by a Division Bench of the High Court of Himachal Pradesh, whereby his acquittal under Section 20 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was reversed and a sentence of two years rigorous imprisonment with a fine of Rs.50,000 was instead imposed.
Findings of Court:
As regards the question of contradiction between PW2 and PW5’s statements, we find that High Court’s observations are unimpeachable. It would indeed be patently wrong to suggest that PW5 deposed that the independent witnesses were called after suspected contraband had already been recovered from underneath driver’s seat. In fact, both PW2 and PW5 unequivocally state that the polythene bag was inspected only after the independent witnesses had arrived. There might be some confusion over the timing of removal of the other substances, being the tins of ghee, honey, maize etc., but such trivialities are not material.
Result : Appeal dismissed.
JUDGMENT :
Surya Kant, J.
1. These Criminal Appeals have been heard over video-conferencing.
2. The appellant, Raveen Kumar, challenges the judgment dated 23.04.2010 and the order dated 18.05.2010 passed by a Division Bench of the High Court of Himachal Pradesh, whereby his acquittal under Section 20 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) was reversed and a sentence of two-years rigorous imprisonment with a fine of Rs.50,000 was instead imposed.
FACTS
3. Briefly put, the prosecution case is that on 01.11.1994 at around 3:30 P.M., a police party while conducting traffic checks for suspected ammunition near the HP-J&K border at Surangani, stopped a Maruti van which was being driven by the appellant. The police in the course of rummaging found that the van was loaded with tins of ghee, a bag of maize, 20 bottles of honey, rajmah, angithi, thermos, stepney and some other miscellaneous articles. A polythene bag underneath the driver’s seat was also discovered. Suspecting it to contain narcotics, the police summoned two local shopkeepers (including Nam Singh, PW1) as independent witnesses. The appellant was informed of his statutory right to be searched in the presence of a magistrate or gazetted officer but he consented to being searched by the police party itself. The contents of the bag were then examined and charas, in the form of dhoopbati and balls was found. It was weighed using scales obtained from a nearby shop and was found to be 1 kg and 230 gms. After a 10 gm sample of the contraband was extracted, the charas was sealed and seized, and other procedural formalities were completed. The appellant was arrested and statement of one of the two independent witnesses – Nam Singh (PW1) was recorded. The sample was sent for chemical analysis where it was confirmed to be charas with a resin content of 34.5%. The prosecution, accordingly, charged the appellant for offence under Section 20 of the NDPS Act.
4. Over the course of trial, five witnesses were examined by the prosecution and various documents including PW1’s statement, appellant’s written consent for search, recovery memo, arrest memo, seals and site plan were adduced in evidence. PW1 was declared hostile by the prosecution as he denied having personally witnessed seizure of the charas, but nevertheless he broadly supported the prosecution case as regards procedural compliances, sealing of the recovered narcotics and presence of the appellant. PW2 to PW5, being police witnesses, corroborated the prosecution version regarding search, seizure, and other statutory compliances under the NDPS Act. The appellant, in his defence, denied possession of any prohibited substance and claimed that the charges were fabricated by the police given his earlier refusal to contribute money towards a sports meet organised by the jurisdictional police. No defence evidence, however, was led and the appellant instead focused on highlighting contradictions between statements of the police witnesses.
5. The learned Special Judge vide his judgment dated 10.07.1995, acquitted the appellant observing that possession of a prohibited substance had not been proved beyond reasonable doubt. In reaching such conclusion, the Court placed heavy reliance on an earlier reply dated 09.11.1994 - given by the prosecution to oppose appellant’s prayer for bail, wherein the police claimed that the appellant “roams in the area in the vehicle in the guise of a contractor and usually deals in Contraband articles. Earlier also on 27.10.94, reliable secret information was received that he was carrying charas 7 kgs in the same vehicle. He was chased … but he could not be nabbed … He has been under observation for a long time.” In the opinion of the trial Court, this unambiguously negated PW2 and PW5’s depositions that they did not know or previously engage with the appellant. It also became the sole factor to conclude that the police, in fact, had previous information of the alleged smuggling
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