Generally the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record.
Then notice under Section 50 of the NDPS Act was given to the accused and appellant has consented to search the same by the NCB officials. Thereafter the bag was searched and the officers have found 13 Kg. of charas. The charas was divided into two portions of 6½ Kg. each and two packets were made which were marked as ‘X’ and ‘Y’ respectively. From each of these packets, two samples of 25 grams were drawn. The 2 Crl.A.No.688 of 2013 samples drawn from the packet – Mark ‘X’ – were marked as ‘X1’ and ‘X2’ and the samples drawn from packet – Mark ‘Y’ – were marked as ‘Y1’ and ‘Y2’. Thereafter all the four samples were sealed in a polythene bag by heat sealing process and were put in paper envelopes and sealed with paper seals, signed by NCB officials as well as the appellant-accused Jeet Ram. On each sample seal no.6 of NCB was affixed on all the four corners and the bulk charas in packets ‘X’ and ‘Y’ was sealed in paper parcels with six seals each. The seals were handed over to PW-1 and the all the samples and the parcels were signed by NCB officials and accused. Further, in the statement recorded as contemplated under Section 67 of the NDPS Act, the appellant has admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter a Panchnama was drawn which was signed by the appellant and he was arrested on 19.06.2001. The two samples of ‘X1’ and ‘Y1’ along with a letter were sent through PW-2 Hayat Singh to Chemical Analyst for analysis, who has vide his report opined that both the samples were of charas. On the said basis, the appellant-accused was charged and challaned for the offence under Section 20 of the NDPS Act.
acquitted the appellant-accused mainly on the grounds that – the prosecution case was not supported by any independent witness; the prosecution has failed to show that the seized charas was recovered from the dhaba of the appellant-accused and further there is no evidence to show that the appellant-accused was found in possession of the charas, as pleaded by the prosecution; there was non compliance of Section 50 of the NDPS Act; as the samples were handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying the same to the Central Laboratory at Delhi and these seals remained with the Director, as such the chances of tampering could not be ruled out and also on the ground that the case of the prosecution was unnatural and improbable.
High Court by reappreciating the evidence on record has come to conclusion that the prosecution has proved its case beyond reasonable doubt and also has proved that 13 Kg. of charas was recovered from the possession of the appellant-accused, who was managing the dhaba in question, and set aside the judgment of the trial court and ordered conviction
Apex court held that -. Though the ratio laid down that the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record. - The trial court acquitted the appellant mainly on the ground that prosecution case was not supported by independent witnesses; conscious possession was not proved; non-compliance of Section 50 of the NDPS Act; proper procedure was not followed in sending the samples for examination and the case of the prosecution was unnatural and improbable-Section 50 of the NDPS Act is applicable only in the case of personal search, as such, there is no basis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act. Even with regard to the finding of the trial court that the case of the prosecution was not supported by independent witnesses, it is clear from the evidence on record that the incident had happened at about 10:30 p.m. in a dhaba which is away from the village site and all other persons who are found in the dhaba were the servants of the accused. It is also clear from the evidence on record that Suresh Kumar and Attar Singh examined on behalf of the appellant are closely related to the accused, as such, they could not be said to be independent witnesses. - The case of the prosecution was found to be unnatural and improbable by the trial court only on the ground that 13 Kg. of charas was lying in open in a gunny bag. The trial court found that it is not believable that any person would keep such a huge quantity of charas in open condition. - It is clear from the evidence of prosecution witnesses that the officials of NCB got information that trafficking of charas was going on in the area in question.as rightly held by the High Court, that the trial court totally lost sight of the fact that on 19.06.2001 JMIC, Theog had also appended his signatures on the samples as well as bulk parcels and, therefore, there was no chance of tampering of the samples. Further, there was no such suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2 Hayat Singh.For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court.
Crl.A.No.688 of 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.688 OF 2013
Jeet Ram …..Appellant
Versus
The Narcotics Control Bureau, Chandigarh …..Respondent
J U D G M E N T
R. Subhash Reddy, J.
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 the
judgment of conviction dated 11.12.2012 and further order of sentencing
the appellant, dated 31.12.2012, passed by the High Court of Himachal
Pradesh, Shimla in Criminal Appeal No.493 of 2003.
2. The appellant-accused was tried for a charge punishable under
Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985
(for short, ‘NDPS Act’). The Sessions Judge, Shimla by judgment dated
30.06.2003 acquitted the accused by recording a finding that the case of
prosecution was not free from doubt and there were many infirmities in
the case of the prosecution to hold that the accused was found to be in
possession of charas, as alleged by the prosecution.
1
Crl.A.No.688 of 2013
3. The case as put forth by the prosecution, briefly stated, is as
under:
On 18.06.2001 the Intelligence Officer in the Narcotics Control
Bureau (NCB), Chandigarh, by name – R.P. Singh (PW-4) was
proceeding to Theog from Shimla. He was travelling along with PW-3 –
O.P. Bhatt and other officials. In the transit they stopped at the dhaba to
have meals which was near the Nangala Devi Temple. When they
ordered meals and tea and were waiting for the food to be served, the
Intelligence Officer could smell the odour of charas. In the meanwhile,
the Zonal Director of NCB, Chandigarh, by name – Rakesh Goyal, who
was examined as PW-1 also reached the said dhaba. Then they have
questioned the appellant-accused about the smell of charas and on such
questioning he became nervous. As such there was increase of
suspicion of the NCB officials. On asking the owner of the dhaba, he
disclosed his name to be Jeet Ram and on further questioning he tried
to run away. Then he was apprehended and taken to the counter of the
dhaba. Just below the counter of the dhaba a gunny bag was found.
When asked, appellant has replied – there is nothing in it. Then notice
under Section 50 of the NDPS Act was given to the accused and
appellant has consented to search the same by the NCB officials.
Thereafter the bag was searched and the officers have found 13 Kg. of
charas. The charas was divided into two portions of 6½ Kg. each and
two packets were made which were marked as ‘X’ and ‘Y’ respectively.
From each of these packets, two samples of 25 grams were drawn. The
2
Crl.A.No.688 of 2013
samples drawn from the packet – Mark ‘X’ – were marked as ‘X1’ and
‘X2’ and the samples drawn from packet – Mark ‘Y’ – were marked as
‘Y1’ and ‘Y2’. Thereafter all the four samples were sealed in a polythene
bag by heat sealing process and were put in paper envelopes and
sealed with paper seals, signed by NCB officials as well as the
appellant-accused Jeet Ram. On each sample seal no.6 of NCB was
affixed on all the four corners and the bulk charas in packets ‘X’ and ‘Y’
was sealed in paper parcels with six seals each. The seals were
handed over to PW-1 and the all the samples and the parcels were
signed by NCB officials and accused. Further, in the statement recorded
as contemplated under Section 67 of the NDPS Act, the appellant has
admitted that for various reasons he was indulged in the trade of charas
to increase his income. Thereafter a Panchnama was drawn which was
signed by the appellant and he was arrested on 19.06.2001. The two
samples of ‘X1’ and ‘Y1’ along with a letter were sent through PW-2
Hayat Singh to Chemical Analyst for analysis, who has vide his report
opined that both the samples were of charas. On the said basis, the
appellant-accused was charged and challaned for the offence under
Section 20 of the NDPS Act.
4. When the charge is denied by the appellant-accused, he was tried
for the aforesaid offence before the Sessions Judge, Shimla. To prove
the guilt of the appellant, the prosecution has examined four witnesses
in all, in support of its case. On behalf of the accused oral evidence was
let in to show that the dhaba in question was not being run by him and
3
Crl.A.No.688 of 2013
he was employed as a priest in the nearby temple. After considering the
oral and documentary evidence on record, the trial court by judgment
dated 30.06.2003 acquitted the appellant-accused mainly on the
grounds that – the prosecution case was not supported by any
independent witness; the prosecution has failed to show that the seized
charas was recovered from the dhaba of the appellant-accused and
further there is no evidence to show that the appellant-accused was
found in possession of the charas, as pleaded by the prosecution; there
was non compliance of Section 50 of the NDPS Act; as the samples
were handed over to PW-1 Rakesh Goyal who himself gave the sample
to PW-2 for carrying the same to the Central Laboratory at Delhi and
these seals remained with the Director, as such the chances of
tampering could not be ruled out and also on the ground that the case of
the prosecution 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 the NDPS Act read with Section
378 of the Code of Criminal Procedure before the High Court of
Himachal Pradesh at Shimla in Criminal Appeal No.493 of 2003. The
High Court by reappreciating the evidence on record has come to
conclusion that the prosecution has proved its case beyond reasonable
doubt and also has proved that 13 Kg. of charas was recovered from the
possession of the appellant-accused, who was managing the dhaba in
question, and set aside the judgment of the trial court and ordered
conviction of the appellant for offence punishable under Section 20 of
4
Crl.A.No.688 of 2013
the NDPS Act. By further hearing the appellant, order dated 31.12.2012
was passed sentencing the appellant-accused to undergo rigorous
imprisonment for 15 years and to pay fine of Rs.2,00,000/- and in
default, to undergo further imprisonment of one year. Aggrieved by the
conviction recorded and sentence imposed by the High Court, this
appeal is filed by the accused.
6. We have heard Sri Purushottam Sharma Tripathi, learned counsel
for the appellant and Sri Aman Lekhi, learned Additional Solicitor
General appearing for the respondent-NCB.
7. It is mainly contended by learned counsel for the appellant that
the well considered judgment of the trial court acquitting the appellant
from the charge, is reversed by the High Court without recording cogent
reasons. It is submitted that having regard to evidence on record, the
view taken by the trial court was possible view, and even assuming that
other view is possible, same is no ground to interfere with the judgment
of the trial court. The learned counsel, in support of this argument, has
placed reliance on the judgments of this Court in the case of Union of
India v. Bal Mukund & Ors.1
; Francis Stanly v. Intelligence Officer,
Narcotic Control Bureau, Thiruvananthapuram2
; and Rangaiah v.
State of Karnataka3
. Further it was contended that the story of the
prosecution is not supported by independent witnesses though it is clear
from the evidence on record that the houses in the village were only at a
1 (2009) 12 SCC 161
2 (2006) 13 SCC 210
3 (2008) 16 SCC 737
5
Crl.A.No.688 of 2013
distance of 500 meters from the place of dhaba. He submitted that the
High Court has committed error in relying on the testimony of official
witnesses to hold the appellant-accused guilty of the charge. While
pleading that it is not safe to rely on the testimony of official witnesses,
in absence of any independent witness, learned counsel has placed
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 the
submission of the learned counsel that there is no acceptable evidence
on record to hold that appellant-accused was in exclusive and conscious
possession of the seized material /charas as much as same was seized
from the gunny bag lying near the counter of the dhaba. In support of
the said plea, the learned counsel relied upon the judgments of this
Court in the case of Gopal v. State of M.P.6 and State of Punjab v.
Balkar Singh & Anr.7
. Further it is also stated that search notice issued
to the appellant was not in accordance with Section 50 of the NDPS Act
and placed reliance on the judgment of this Court in the case of K.
Mohanan v. State of Kerala8
. Further pleading that the testimony of the
defence witness was not considered in proper perspective by the High
Court, the learned counsel has submitted that it is a fit case to set aside
the judgment of the High Court and acquit the appellant from the charge
framed. Lastly it is contended by the learned counsel that in any event
the sentence of 15 years’ rigorous imprisonment with fine of
4 (2003) 9 SCC 159
5 1995 Supp. (4) 658
6 (2002) 9 SCC 595
7 (2004) 3 SCC 582
8 (2000) 10 SCC 222
6
Crl.A.No.688 of 2013
Rs.2,00,000/- is excessive and disproportionate to the gravity of the
charge having regard to the facts and circumstances of the case and the
age of the appellant. Further it is submitted that he is a pujari in the
temple, situated near the dhaba.
8. On the other hand, it is argued by Sri Aman Lekhi, learned
Additional Solicitor General appearing for the respondent-NCB, that the
findings recorded by the trial court are erroneous and contrary to
evidence on record, as such, it is always open to the High Court in
appeal to reappreciate the evidence and set aside such erroneous view
taken by the trial court. It is submitted that though prosecution has
proved its case beyond reasonable doubt, on mere surmises and
presumptions the trial court has found that the case of the prosecution is
unnatural and same is correctly overturned by the High Court. Further it
is submitted that the incident had happened at about 10:30 p.m. at the
dhaba which is away from the actual village site, as such, merely
because independent witnesses were not examined, same by itself is no
ground to reject the case of the prosecution. Further it is submitted that
it is admitted position that dhaba was being run by his wife, which is
near to the temple. As the appellant was on the counter during the
relevant time, as such, it cannot be said that the seized material of
charas was not seized from his conscious possession. To support
various contentions learned Additional Solicitor General relied on the
several judgments of this Court.
7
Crl.A.No.688 of 2013
o To support his contention that appellate courts have full powers to
review the evidence, upon which order of acquittal is founded and
come to their own conclusion, he relied on the following judgments :
1. Sanwat Singh & Ors. v. State of Rajasthan9
2. Damodarprasad Chandrikaprasad v. State of Maharashtra10
3. Vinod Kumar v. State of Haryana11
o In support of his contention that merely because independent
witnesses are not examined, same is no ground to reject the case
of the prosecution, learned Additional Solicitor General has relied
on the following judgments of this Court :
1. Dharampal Singh v. State of Punjab12
2. Baldev Singh v. State of Haryana13
o To support his argument that the charas was seized from the
conscious possession of the appellant, the learned ASG has placed
reliance on the following judgments of this Court :
1. Madan Lal & Anr. v. State of H.P.14
2. Mohan Lal v. State of Rajasthan15
9 (1961) 3 SCR 120
10 (1972) 1 SCC 107
11 (2015) 3 SCC 138
12 (2010) 9 SCC 608
13 (2015) 17 SCC 554
14 (2003) 7 SCC 465
15 (2015) 6 SCC 222
8
Crl.A.No.688 of 2013
Further, it is submitted that having regard to the nature of offence which
has large repercussions on the society, sentence imposed does not
warrant any interference. Hence, prayed for dismissal of the appeal.
9. Having heard the learned counsel on both sides and on perusal of
the record, we do not find any substance in any of the contentions
advanced by the learned counsel for the appellant, except the
submission on the quantum of sentence.
10. It is mainly contended by learned counsel for the appellant that
the High Court / appellate Court was not justified in interfering with the
judgment of acquittal passed by the trial court merely because another
view is possible. As noted earlier, in support of his argument that merely
because another view is possible, same is no ground to interfere with
the judgment of acquittal by the appellate court, the learned counsel has
relied on judgments of this Court in the case of Bal Mukund1
; Francis
Stanly2
; and Rangaiah3
. To counter the said submission, the learned
Additional Solicitor General Sri Aman Lekhi has submitted that it is
always open to the appellate court to review the evidence on record
upon which order of acquittal is founded and if it comes to conclusion
that the order passed by the trial court is erroneous and unreasonable, it
is always open for the appellate court to interfere with the order of
acquittal. It is contended that the view taken by the trial court is not a
possible view having regard to evidence on record. Such erroneous
finding can be corrected by the appellate court. In support of his
argument, the learned Additional Solicitor General has placed reliance
9
Crl.A.No.688 of 2013
on the judgments of this Court in the case of Sanwat Singh9
;
Damodarprasad Chandrikaprasad10 and Vinod Kumar11. Though the
ratio laid down in the judgments relied on by the learned counsel for the
appellant is that the appellate court would not interfere with the judgment
of acquittal only because another view is possible but at the same time
whether the findings recorded by the trial court in support of acquittal are
valid or not is a matter which is to be considered with reference to facts
of each case and evidence on record. On close scrutiny of the
depositions of the witnesses examined on behalf of the prosecution as
well as on behalf of the accused, we are of the view that the findings
recorded by the trial court are contrary to evidence on record and view
taken by the trial court was not possible at all, as such the High Court
rightly interfered with the same and recorded its own findings to convict
the appellant. The trial court acquitted the appellant mainly on the
ground that prosecution case was not supported by independent
witnesses; conscious possession was not proved; non-compliance of
Section 50 of the NDPS Act; proper procedure was not followed in
sending the samples for examination and the case of the prosecution
was unnatural and improbable. As rightly held by the High Court, this
Court in the case of State of H.P. v. Pawan Kumar16 has held that
Section 50 of the NDPS Act is applicable only in the case of personal
search, as such, there is no basis for the findings recorded by the trial
court that there was non-compliance of provision under Section 50 of the
16 (2005) 4 SCC 350
10
Crl.A.No.688 of 2013
NDPS Act. Even with regard to the finding of the trial court that the case
of the prosecution was not supported by independent witnesses, it is
clear from the evidence on record that the incident had happened at
about 10:30 p.m. in a dhaba which is away from the village site and all
other persons who are found in the dhaba were the servants of the
accused. It is also clear from the evidence on record that Suresh Kumar
and Attar Singh examined on behalf of the appellant are closely related
to the accused, as such, they could not be said to be independent
witnesses. Pappu was the only other person who is none other than the
servant of the dhaba and we cannot expect such a person to be a
witness against his own master. Dealing with the issue of conscious
possession, it is to be noticed that dhaba is constructed on the land
which belongs to Kaushalya Devi who is none other than the wife of the
accused. Further in deposition PW-4 has stated that when the accused
was questioned as to who was the owner of the dhaba, he claimed to be
the owner. The case of the prosecution was found to be unnatural and
improbable by the trial court only on the ground that 13 Kg. of charas
was lying in open in a gunny bag. The trial court found that it is not
believable that any person would keep such a huge quantity of charas in
open condition. It is clear from the evidence of prosecution witnesses
that the officials of NCB got information that trafficking of charas was
going on in the area in question. Two police parties had left for Theog –
one party headed by PW-4 R.P. Singh started earlier and second party
headed by PW-1 Rakesh Goyal left a little later from Shimla. Thus the
11
Crl.A.No.688 of 2013
depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat; PW-1 Rakesh Goyal
and PW-2 Hayat Singh are consistent and trustworthy and cannot be
said to be unnatural and improbable. Further it is also to be noted that
the trial court has held that seal with which samples and remaining bulk
of charas was sealed was handed over to PW-1 Rakesh Goyal who
himself gave the sample to PW-2 for carrying to Central Laboratory at
Delhi and since the seals remained with the Director, 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 court totally lost sight of the
fact that on 19.06.2001 JMIC, Theog had also appended his signatures
on the samples as well as bulk parcels and, therefore, there was no
chance of tampering of the samples. Further, there was no such
suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2
Hayat Singh.
11. For the aforesaid reasons, we are of the clear view that the view
taken by the trial court was not at all possible, having regard to the
evidence on record and findings which are erroneously recorded
contrary to evidence on record were rightly set aside by the High Court.
As submitted by the learned Additional Solicitor General appearing for
the prosecution, it is always open to the appellate court to reappreciate
the evidence, on which the order of acquittal is founded, and appellate
courts are vested with the powers to review and come to their own
conclusion. The judgments in the case of Sanwat Singh9
;
Damodarprasad Chandrikaprasad10 and Vinod Kumar11 also support
12
Crl.A.No.688 of 2013
the case of the respondent. It is relevant to refer to paragraphs 17 and
18 of the judgment in the case of Vinod Kumar11 which read as under :
“17. Before we dwell upon the factual score whether the
prosecution has proven the case to warrant a conviction,
we think it apt to recapitulate the principles relating to
the jurisdiction of the High Court while deciding the
appeal against acquittal. In this context, reproducing a
passage from Jadunath Singh v. State of U.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 an appeal against acquittal the High Court has
full power to review at large all the evidence and to
reach the conclusion that upon that evidence the
order of acquittal should be reversed. This power of
the appellate court in an appeal against acquittal
was formulated by the Judicial Committee of the
Privy Council in Sheo 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] .
These two decisions have been consistently
referred to in the judgments of this Court as laying
down the true scope of the power of an appellate
court in hearing criminal appeals: see Surajpal
Singh v. State [AIR 1952 SC 52 : 1952 Cri LJ 331]
and Sanwat Singh v. State of Rajasthan [AIR 1961
SC 715 : (1961) 1 Cri LJ 766] .”
Similar view has been expressed in Damodarprasad
Chandrikaprasad v. State of Maharashtra [(1972) 1 SCC
107 : 1972 SCC (Cri) 110] , Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033] , State of Karnataka v. K.
Gopalakrishna [(2005) 9 SCC 291 : 2005 SCC (Cri)
1237], Anil Kumar v. State of U.P. [(2004) 13 SCC 257 :
2005 SCC (Cri) 178] , Girja Prasad v. State of
M.P. [(2007) 7 SCC 625 : (2007) 3 SCC (Cri) 475]
and S. Ganesan v. Rama Raghuraman [(2011) 2 SCC
83 : (2011) 1 SCC (Cri) 607] .
18. In this regard, we may fruitfully remind ourselves the
principles culled out in Chandrappa v. State of
13
Crl.A.No.688 of 2013
Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri)
325] : (SCC p. 432, para 42)
“42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient grounds’,
‘very strong circumstances’, ‘distorted conclusions’,
‘glaring mistakes’, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of ‘flourishes of language’ to emphasise
the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court.”
14
Crl.A.No.688 of 2013
For the aforesaid reasons, we reject the submission made by the
learned counsel for the appellant. Even with regard to the plea of the
appellant that the evidence on record on behalf of the prosecution is not
sufficient enough to hold that the appellant-accused was in conscious
possession of the seized material, also cannot be accepted. It is clear
from the evidence on record that the appellant was on the counter of the
dhaba which was constructed on the land owned by his wife near the
temple and the charas was found in the counter of the dhaba in a gunny
bag. The facts of the case show that accused not only had direct
physical control over charas, he had the knowledge of its presence and
character. As rightly contended by Sri Aman Lekhi, learned Additional
Solicitor General in the case of Mohan Lal15 this Court had held that a
functional and flexible approach in defining and understanding
possession as a concept has to be adopted and the word has to be
understood keeping in mind the purpose and object of the enactment. In
the statement recorded under Section 313 of Code of Criminal
Procedure, though the appellant has referred to Brij Lal and Mantu in
support of a version, contrary to that presented by prosecution but he
has not chosen to examine either Brij Lal or Mantu. No defence witness
has deposed to the chain of events, as has been stated by the appellant
in the statement under Section 313, Cr.PC. It is also fairly well settled
that where accused offers false answers in examination under Section
313 Cr.PC, same also can be used against him. Further onus was on
the appellant to explain the possession and in absence of the same
15
Crl.A.No.688 of 2013
being discharged, presumption under Section 54 of the NDPS Act also
will kick in.
12. For the aforesaid reasons, we are of the view that the judgment of
the High Court does not suffer from any infirmity so as to interfere with
the judgment of conviction.
13. At the same time we find force in the submission of the learned
counsel for the appellant in sentencing the appellant for 15 years’
rigorous imprisonment with a fine of Rs.2,00,000/-. Having regard to
peculiar facts and circumstances of the case and in view of the fact that
the incident occurred in the year 2001 and as the appellant claimed to
be a priest in the temple, who is now aged about 65 years, we deem it
appropriate that it is a fit case to modify the sentence imposed on the
appellant. Accordingly, the sentence awarded on the appellant is
reduced to a period of 10 (ten) years, while maintaining the conviction
and the penalty as imposed by the High Court. The order of sentence
dated 31.12.2012 passed by the High Court stands modified. The
appeal is partly allowed to the extent indicated above.
………….………………………………...J.
[ASHOK BHUSHAN]
….…………………………………………J.
[R. SUBHASH REDDY]
….…………………………………………J.
[M.R. SHAH]
New Delhi.
September 15, 2020.
16
