JEET RAM versus THE NARCOTICS CONTROL BUREAU, CHANDIGARH on 15 September 2020

Conclusion

1. This appeal is filed by the sole accused, in Sessions Trial No.7-5/2002 of 2001 on the file of Sessions Judge, Shimla, aggrieved by thejudgment of conviction dated 11.12.2012 and further order of sentencingthe appellant, dated 31.12.2012, passed by the High Court of HimachalPradesh, Shimla in Criminal Appeal No.493 of 2003.

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2. The appellant-accused was tried for a charge punishable underSection 20 of Narcotic Drugs and Psychotropic Substances Act, 1985(for short, ‘NDPS Act’). The Sessions Judge, Shimla by judgment dated30.06.2003 acquitted the accused by recording a finding that the case ofprosecution was not free from doubt and there were many infirmities inthe case of the prosecution to hold that the accused was found to be inpossession of charas, as alleged by the prosecution.

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3. The case as put forth by the prosecution, briefly stated, is asunder:

On 18.06.2001 the Intelligence Officer in the Narcotics ControlBureau (NCB), Chandigarh, by name – R.P. Singh (PW-4) was H

Aproceeding to Theog from Shimla. He was travelling along with PW-3 –O.P. Bhatt and other officials. In the transit they stopped at the dhabato have meals which was near the Nangala Devi Temple. When theyordered meals and tea and were waiting for the food to be served, theIntelligence Officer could smell the odour of charas. In the meanwhile,the Zonal Director of NCB, Chandigarh, by name – Rakesh Goyal, whoBwas examined as PW-1 also reached the said dhaba. Then they havequestioned the appellant-accused about the smell of charas and on suchquestioning he became nervous. As such there was increase of suspicionof the NCB officials. On asking the owner of the dhaba, he disclosedhis name to be Jeet Ram and on further questioning he tried to run away.CThen he was apprehended and taken to the counter of the dhaba. Justbelow the counter of the dhaba a gunny bag was found. When asked,appellant has replied – there is nothing in it. Then notice under Section50 of the NDPS Act was given to the accused and appellant hasconsented to search the same by the NCB officials. Thereafter the bag

was searched and the officers have found 13 Kg. of charas. The charasDwas divided into two portions of 6½ Kg. each and two packets weremade which were marked as ‘X’ and ‘Y’ respectively. From each ofthese packets, two samples of 25 grams were drawn. The samples drawnfrom the packet – Mark ‘X’ – were marked as ‘X1’ and ‘X2’ and thesamples drawn from packet – Mark ‘Y’ – were marked as ‘Y1’ andE‘Y2’. Thereafter all the four samples were sealed in a polythene bag byheat sealing process and were put in paper envelopes and sealed withpaper seals, signed by NCB officials as well as the appellant-accusedJeet Ram. On each sample seal no.6 of NCB was affixed on all the fourcorners and the bulk charas in packets ‘X’ and ‘Y’ was sealed in paperparcels with six seals each. The seals were handed over to PW-1 andFthe all the samples and the parcels were signed by NCB officials andaccused. Further, in the statement recorded as contemplated under Section67 of the NDPS Act, the appellant has admitted that for various reasonshe was indulged in the trade of charas to increase his income. Thereaftera Panchnama was drawn which was signed by the appellant and heGwas arrested on 19.06.2001. The two samples of ‘X1’ and ‘Y1’ alongwith a letter were sent through PW-2 Hayat Singh to Chemical Analystfor analysis, who has vide his report opined that both the samples wereof charas. On the said basis, the appellant-accused was charged andchallaned for the offence under Section 20 of the NDPS Act.

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4. When the charge is denied by the appellant-accused, he wastried for the aforesaid offence before the Sessions Judge, Shimla. Toprove the guilt of the appellant, the prosecution has examined fourwitnesses in all, in support of its case. On behalf of the accused oralevidence was let in to show that the dhaba in question was not beingrun by him and he was employed as a priest in the nearby temple. Afterconsidering the oral and documentary evidence on record, the trial courtby judgment dated 30.06.2003 acquitted the appellant-accused mainlyon the grounds that – the prosecution case was not supported by anyindependent witness; the prosecution has failed to show that the seizedcharas was recovered from the dhaba of the appellant-accused andfurther there is no evidence to show that the appellant-accused wasfound in possession of the charas, as pleaded by the prosecution; therewas non compliance of Section 50 of the NDPS Act; as the sampleswere handed over to PW-1 Rakesh Goyal who himself gave the sampleto PW-2 for carrying the same to the Central Laboratory at Delhi andthese seals remained with the Director, as such the chances of tamperingcould not be ruled out and also on the ground that the case of theprosecution was unnatural and improbable.

5. Aggrieved by the judgment of the trial court, the NCB,Chandigarh has filed appeal as contemplated under Section 36-B of theNDPS Act read with Section 378 of the Code of Criminal Procedurebefore the High Court of Himachal Pradesh at Shimla in Criminal AppealNo.493 of 2003. The High Court by reappreciating the evidence on recordhas come to conclusion that the prosecution has proved its case beyondreasonable doubt and also has proved that 13 Kg. of charas wasrecovered from the possession of the appellant-accused, who wasmanaging the dhaba in question, and set aside the judgment of the trialcourt and ordered conviction of the appellant for offence punishableunder Section 20 of the NDPS Act. By further hearing the appellant,order dated 31.12.2012 was passed sentencing the appellant-accused toundergo rigorous imprisonment for 15 years and to pay fine ofRs.2,00,000/- and in default, to undergo further imprisonment of oneyear. Aggrieved by the conviction recorded and sentence imposed bythe High Court, this appeal is filed by the accused.

6. We have heard Sri Purushottam Sharma Tripathi, learnedcounsel for the appellant and Sri Aman Lekhi, learned Additional SolicitorGeneral appearing for the respondent-NCB.

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A7. It is mainly contended by learned counsel for the appellant thatthe well considered judgment of the trial court acquitting the appellantfrom the charge, is reversed by the High Court without recording cogentreasons. It is submitted that having regard to evidence on record, theview taken by the trial court was possible view, and even assuming thatother view is possible, same is no ground to interfere with the judgmentBof the trial court. The learned counsel, in support of this argument, hasplaced reliance on the judgments of this Court in the case of Union ofIndia v. Bal Mukund & Ors.[1]; Francis Stanly v. IntelligenceOfficer, Narcotic Control Bureau, Thiruvananthapuram[2]; andRangaiah v. State of Karnataka[3]. Further it was contended that theCstory of the prosecution is not supported by independent witnesses thoughit is clear from the evidence on record that the houses in the village wereonly at a distance of 500 meters from the place of dhaba. He submittedthat the High Court has committed error in relying on the testimony ofofficial witnesses to hold the appellant-accused guilty of the charge.While pleading that it is not safe to rely on the testimony of officialDwitnesses, in absence of any independent witness, learned counsel hasplaced reliance on the judgments of this Court in the case of Jagdish v.State of M.P.[4 ]and Gyan Singh & Ors. v. State of U.P.[5]. It is also thesubmission of the learned counsel that there is no acceptable evidenceon record to hold that appellant-accused was in exclusive and consciousEpossession of the seized material /charas as much as same was seizedfrom the gunny bag lying near the counter of the dhaba. In support ofthe said plea, the learned counsel relied upon the judgments of this Courtin the case of Gopal v. State of M.P.[6 ]and State of Punjab v. BalkarSingh & Anr.[7]. Further it is also stated that search notice issued to theappellant was not in accordance with Section 50 of the NDPS Act andFplaced reliance on the judgment of this Court in the case of K. Mohananv. State of Kerala[8]. Further pleading that the testimony of the defencewitness was not considered in proper perspective by the High Court, thelearned counsel has submitted that it is a fit case to set aside the judgment G1 2 (2009) 12 SCC 161(2006) 13 SCC 2103 (2008) 16 SCC 7374 (2003) 9 SCC 1595 1995 Supp. (4) 658

6 (2002) 9 SCC 595

7 (2004) 3 SCC 582H8 (2000) 10 SCC 222

JEET RAM v. THE NARCOTICS CONTROL BUREAU,CHANDIGARH [R. SUBHASH REDDY, J.]

of the High Court and acquit the appellant from the charge framed.Lastly it is contended by the learned counsel that in any event thesentence of 15 years’ rigorous imprisonment with fine of Rs.2,00,000/-is excessive and disproportionate to the gravity of the charge havingregard to the facts and circumstances of the case and the age of theappellant. Further it is submitted that he is a pujari in the temple, situatednear the dhaba.

8. On the other hand, it is argued by Sri Aman Lekhi, learnedAdditional Solicitor General appearing for the respondent-NCB, that thefindings recorded by the trial court are erroneous and contrary to evidenceon record, as such, it is always open to the High Court in appeal toreappreciate the evidence and set aside such erroneous view taken bythe trial court. It is submitted that though prosecution has proved its casebeyond reasonable doubt, on mere surmises and presumptions the trialcourt has found that the case of the prosecution is unnatural and same iscorrectly overturned by the High Court. Further it is submitted that theincident had happened at about 10:30 p.m. at the dhaba which is awayfrom the actual village site, as such, merely because independent witnesseswere not examined, same by itself is no ground to reject the case of theprosecution. Further it is submitted that it is admitted position that dhabawas being run by his wife, which is near to the temple. As the appellantwas on the counter during the relevant time, as such, it cannot be saidthat the seized material of charas was not seized from his consciouspossession. To support various contentions learned Additional SolicitorGeneral relied on the several judgments of this Court.

oTo support his contention that appellate courts have fullpowers to review the evidence, upon which order of acquittalis founded and come to their own conclusion, he relied on thefollowing judgments :

1. Sanwat Singh & Ors. v. State of Rajasthan[9]

2. Damodarprasad Chandrikaprasad v. State ofMaharashtra[10]

3. Vinod Kumar v. State of Haryana[11]

9 (1961) 3 SCR 120

10 (1972) 1 SCC 107

11 (2015) 3 SCC 138

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AoIn support of his contention that merely because independentwitnesses are not examined, same is no ground to reject thecase of the prosecution, learned Additional Solicitor Generalhas relied on the following judgments of this Court :

1. Dharampal Singh v. State of Punjab[12]

B2. Baldev Singh v. State of Haryana[13]

oTo support his argument that the charas was seized from theconscious possession of the appellant, the learned ASG hasplaced reliance on the following judgments of this Court :

1. Madan Lal & Anr. v. State of H.P.[14]C

2. Mohan Lal v. State of Rajasthan[15]

Further, it is submitted that having regard to the nature of offencewhich has large repercussions on the society, sentence imposed doesnot warrant any interference. Hence, prayed for dismissal of the appeal.

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9. Having heard the learned counsel on both sides and on perusalof the record, we do not find any substance in any of the contentionsadvanced by the learned counsel for the appellant, except the submissionon the quantum of sentence.

10. It is mainly contended by learned counsel for the appellantEthat the High Court / appellate Court was not justified in interfering withthe judgment of acquittal passed by the trial court merely because anotherview is possible. As noted earlier, in support of his argument that merelybecause another view is possible, same is no ground to interfere with thejudgment of acquittal by the appellate court, the learned counsel hasFrelied on judgments of this Court in the case of Bal Mukund[1]; FrancisStanly[2]; and Rangaiah[3]. To counter the said submission, the learnedAdditional Solicitor General Sri Aman Lekhi has submitted that it is alwaysopen to the appellate court to review the evidence on record upon whichorder of acquittal is founded and if it comes to conclusion that the orderpassed by the trial court is erroneous and unreasonable, it is alwaysGopen for the appellate court to interfere with the order of acquittal. It iscontended that the view taken by the trial court is not a possible view 12 (2010) 9 SCC 60813 (2015) 17 SCC 55414 (2003) 7 SCC 465H15 (2015) 6 SCC 222

12 (2010) 9 SCC 60813 (2015) 17 SCC 55414 (2003) 7 SCC 465H15 (2015) 6 SCC 222

having regard to evidence on record. Such erroneous finding can becorrected by the appellate court. In support of his argument, the learnedAdditional Solicitor General has placed reliance on the judgments of thisCourt in the case of Sanwat Singh[9]; DamodarprasadChandrikaprasad[10 ]and Vinod Kumar[11]. Though the ratio laid down inthe judgments relied on by the learned counsel for the appellant is thatthe appellate court would not interfere with the judgment of acquittalonly because another view is possible but at the same time whether thefindings recorded by the trial court in support of acquittal are valid or notis a matter which is to be considered with reference to facts of eachcase and evidence on record. On close scrutiny of the depositions of thewitnesses examined on behalf of the prosecution as well as on behalf ofthe accused, we are of the view that the findings recorded by the trialcourt are contrary to evidence on record and view taken by the trialcourt was not possible at all, as such the High Court rightly interferedwith the same and recorded its own findings to convict the appellant.The trial court acquitted the appellant mainly on the ground thatprosecution case was not supported by independent witnesses; consciouspossession was not proved; non-compliance of Section 50 of the NDPSAct; proper procedure was not followed in sending the samples forexamination and the case of the prosecution was unnatural andimprobable. As rightly held by the High Court, this Court in the case ofState of H.P. v. Pawan Kumar[16] has held that Section 50 of the NDPSAct is applicable only in the case of personal search, as such, there is nobasis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act. Even withregard to the finding of the trial court that the case of the prosecutionwas not supported by independent witnesses, it is clear from the evidenceon record that the incident had happened at about 10:30 p.m. in a dhabawhich is away from the village site and all other persons who are foundin the dhaba were the servants of the accused. It is also clear from theevidence on record that Suresh Kumar and Attar Singh examined onbehalf of the appellant are closely related to the accused, as such, theycould not be said to be independent witnesses. Pappu was the only otherperson who is none other than the servant of the dhaba and we cannotexpect such a person to be a witness against his own master. Dealingwith the issue of conscious possession, it is to be noticed that dhaba isconstructed on the land which belongs to Kaushalya Devi who is none AB

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Aother than the wife of the accused. Further in deposition PW-4 has statedthat when the accused was questioned as to who was the owner of thedhaba, he claimed to be the owner. The case of the prosecution wasfound to be unnatural and improbable by the trial court only on the groundthat 13 Kg. of charas was lying in open in a gunny bag. The trial courtfound that it is not believable that any person would keep such a hugeBquantity of charas in open condition. It is clear from the evidence ofprosecution witnesses that the officials of NCB got information thattrafficking of charas was going on in the area in question. Two policeparties had left for Theog – one party headed by PW-4 R.P. Singh startedearlier and second party headed by PW-1 Rakesh Goyal left a little laterCfrom Shimla. Thus the depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat;PW-1 Rakesh Goyal and PW-2 Hayat Singh are consistent andtrustworthy and cannot be said to be unnatural and improbable. Furtherit is also to be noted that the trial court has held that seal with whichsamples and remaining bulk of charas was sealed was handed over to

PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carryingDto Central Laboratory at Delhi and since the seals remained with theDirector, the chances of tampering could not be ruled out. In this regard,it is to be noticed, as rightly held by the High Court, that the trial courttotally lost sight of the fact that on 19.06.2001 JMIC, Theog had alsoappended his signatures on the samples as well as bulk parcels and,Etherefore, there was no chance of tampering of the samples. Further,there was no such suggestion of tampering either put to PW-1 RakeshGoyal or to PW-2 Hayat Singh.

11. For the aforesaid reasons, we are of the clear view that theview taken by the trial court was not at all possible, having regard to theFevidence on record and findings which are erroneously recorded contraryto evidence on record were rightly set aside by the High Court. Assubmitted by the learned Additional Solicitor General appearing for theprosecution, it is always open to the appellate court to reappreciate theevidence, on which the order of acquittal is founded, and appellate courts are vested with the powers to review and come to their own conclusion.GThe judgments in the case of Sanwat Singh[9]; DamodarprasadChandrikaprasad[10] and Vinod Kumar[11 ]also support the case of therespondent. It is relevant to refer to paragraphs 17 and 18 of the judgmentin the case of Vinod Kumar[11] which read as under :

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“17. Before we dwell upon the factual score whether theprosecution has proven the case to warrant a conviction, we thinkit apt to recapitulate the principles relating to the jurisdiction of theHigh Court while deciding the appeal against acquittal. In thiscontext, reproducing a passage from Jadunath Singh v. State ofU.P. [(1971) 3 SCC 577 : 1971 SCC (Cri) 726] would be profitable:(SCC p. 582, para 22)

“22. This Court has consistently taken the view that in anappeal against acquittal the High Court has full power to reviewat large all the evidence and to reach the conclusion that uponthat evidence the order of acquittal should be reversed. Thispower of the appellate court in an appeal against acquittal wasformulated by the Judicial Committee of the Privy Council inSheo Swarup v. King Emperor [(1933-34) 61 IA 398 : (1934)40 LW 436 : AIR 1934 PC 227 (2)] and Nur Mohammed v.King Emperor [(1945) 58 LW 481 : AIR 1945 PC 151] . Thesetwo decisions have been consistently referred to in the judgmentsof this Court as laying down the true scope of the power of anappellate court in hearing criminal appeals: see Surajpal Singhv. State [AIR 1952 SC 52 : 1952 Cri LJ 331] and SanwatSingh v. State of Rajasthan [AIR 1961 SC 715 : (1961) 1 CriLJ 766] .”

Similar view has been expressed in DamodarprasadChandrikaprasad v. State of Maharashtra [(1972) 1 SCC 107: 1972 SCC (Cri) 110] , Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , Stateof Karnataka v. K. Gopalakrishna [(2005) 9 SCC 291 : 2005SCC (Cri) 1237], Anil Kumar v. State of U.P. [(2004) 13 SCC257 : 2005 SCC (Cri) 178] , Girja Prasad v. State of M.P. [(2007)7 SCC 625 : (2007) 3 SCC (Cri) 475] and S. Ganesan v. RamaRaghuraman [(2011) 2 SCC 83 : (2011) 1 SCC (Cri) 607] .

18. In this regard, we may fruitfully remind ourselves the principlesculled out in Chandrappa v. State of Karnataka [(2007) 4 SCC415 : (2007) 2 SCC (Cri) 325] : (SCC p. 432, para 42)

“42. From the above decisions, in our considered view, thefollowing general principles regarding powers of the appellatecourt while dealing with an appeal against an order of acquittalemerge:

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SUPREME COURT REPORTS

(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittalis founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and anappellate court on the evidence before it may reach its ownconclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial and compellingreasons’, ‘good and sufficient grounds’, ‘very strongcircumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.are not intended to curtail extensive powers of an appellatecourt in an appeal against acquittal. Such phraseologies aremore in the nature of ‘flourishes of language’ to emphasise thereluctance of an appellate court to interfere with acquittal thanto curtail the power of the court to review the evidence and tocome to its own conclusion.

(4) An appellate court, however, must bear in mind that in caseof acquittal, there is double presumption in favour of theaccused. Firstly, the presumption of innocence is available tohim under the fundamental principle of criminal jurisprudencethat every person shall be presumed to be innocent unless heis proved guilty by a competent court of law. Secondly, theaccused having secured his acquittal, the presumption of hisinnocence is further reinforced, reaffirmed and strengthenedby the trial court.

(5) If two reasonable conclusions are possible on the basis ofthe evidence on record, the appellate court should not disturbthe finding of acquittal recorded by the trial court.”

For the aforesaid reasons, we reject the submission made by thelearned counsel for the appellant.Even with regard to the plea of theappellant that the evidence on record on behalf of the prosecution is notsufficient enough to hold that the appellant-accused was in consciouspossession of the seized material, also cannot be accepted. It is clearfrom the evidence on record that the appellant was on the counter of thedhaba which was constructed on the land owned by his wife near thetemple and the charas was found in the counter of the dhaba in agunny bag. The facts of the case show that accused not only had direct physical control over charas, he had the knowledge of its presence andcharacter. As rightly contended by Sri Aman Lekhi, learned AdditionalSolicitor General in the case of Mohan Lal[15] this Court had held that afunctional and flexible approach in defining and understanding possessionas a concept has to be adopted and the word has to be understoodkeeping in mind the purpose and object of the enactment. In the statementrecorded under Section 313 of Code of Criminal Procedure, though theappellant has referred to Brij Lal and Mantu in support of a version,contrary to that presented by prosecution but he has not chosen to examineeither Brij Lal or Mantu. No defence witness has deposed to the chainof events, as has been stated by the appellant in the statement underSection 313, Cr.PC. It is also fairly well settled that where accusedoffers false answers in examination under Section 313 Cr.PC, samealso can be used against him. Further onus was on the appellant to explainthe possession and in absence of the same being discharged, presumptionunder Section 54 of the NDPS Act also will kick in.

12. For the aforesaid reasons, we are of the view that the judgmentof the High Court does not suffer from any infirmity so as to interferewith the judgment of conviction.

13. At the same time we find force in the submission of the learnedcounsel for the appellant in sentencing the appellant for 15 years’ rigorousimprisonment with a fine of Rs.2,00,000/-. Having regard to peculiarfacts and circumstances of the case and in view of the fact that theincident occurred in the year 2001 and as the appellant claimed to be apriest in the temple, who is now aged about 65 years, we deem itappropriate that it is a fit case to modify the sentence imposed on theappellant. Accordingly, the sentence awarded on the appellant is reducedto a period of 10 (ten) years, while maintaining the conviction and thepenalty as imposed by the High Court. The order of sentence dated31.12.2012 passed by the High Court stands modified. The appeal ispartly allowed to the extent indicated above.

Divya Pandey

Appeal partly allowed.

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