NDPS Act - when The Report of the FSL Ex.PX did not show anywhere that the resin was of cannabis plant in order to bring it within the definition of “Charas”. and when The Police did not give any option to the appellants to be searched before a Magistrate of a competent Gazetted Officer. - Trial court acquitted the case - High court reversed the order - Apex court set aside the High court order - We have checked the original record to satisfy ourselves. Exhibits PW8/B, PW8/C, PW8/D and PW8/E, which are arrest memos, do not reflect that any option or choice was given to the accused before their personal search was undertaken. It is true that the personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the Trial Court in disbelieving the case of the prosecution. Considering the totality of the circumstances, in our view, the assessment on facts made by the Trial Court was absolutely correct and did not call for any interference by the High Court.
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.870 OF 2016
SANJEEV & ANR. Appellant
VERSUS
STATE OF HIMACHAL PRADESH Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal under the provisions of Section 379 of the
Code of Criminal Procedure, 1973 read with Section 2(A) of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 is directed against the judgment dated 26.05.2016
passed by the High Court1 reversing the acquittal rendered in
favour of the appellants by the Trial Court2 and order dated
20.06.2016 passed by the High Court imposing punishment of
rigorous imprisonment of ten years, with imposition of fine in
the sum of Rs.1,00,000/- (Rupees One Lakh Only) in respect of
the offence punishable under Section 20 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (“the NDPS Act” for
short).
1 The High Court of Himachal Pradesh at Shimla
2 The Special Judge, Fast Track, Kullu, Himachal Pradesh
2
2. For the sake of facility, we may reproduce the case of
the prosecution as narrated by the High Court in its judgment
and order under challenge:
“2. The case of the prosecution, in a nut shell, is that
on 22.12.2010, HC Nand Lal along with other police
personnel was on patrolling duty in official vehicle.
They spotted the accused of Ruara Bridge sitting by the
side of the road. The accused tried to abscond. They
were apprehended. The bag was also lifted and brought to
the vehicle. Word ‘COASTER’ was inscribed on the red
coloured bag. The place was solitary and no independent
person was available on the spot. The I.O. sent Const. Om
Prakash (PW-7) to search for independent witnesses,
however, he could not trace any independent witnesses.
The I.O. associated Const. Om Prakash (PW-7) and Const.
Bhupinder Singh as witnesses and checked the bag. On
checking, stick and pancake like charas was recovered from
the bag and some of the sticks were found to be wrapped in
a polythene. The charas was weighed with the help of
electronic scale. It weighed 1 kg. 500 grams. The charas
was repacked in the same bag and bag was sealed in a cloth
parcel with three seals of seal impressions “A”. The
specimen of seal was obtained separately. Seal after use
was handed over to Const. Om Prakash (PW-7). The I.O.
filled in the NCB-I form in triplicate. Thereafter, I.O.
prepared rukka. It was sent to the Police Station. FIR
Ext. PW-2/B was registered. The I.O. prepared the spot
map and handed over the case properly for resealing to ASI
Naresh Chand (PW-2). He resealed the same with three
seals of seal impression “T” and filed in column nos.9 to
11 of NCB-I form. On 23.12.2010, I.O. prepared the
special report and produced the same before Dy. S.P.
Kullu. ASI Naresh Chand deposited the parcel containing
charas sealed with seal “A” and resealed with seal
impression “T” along with NCB-I form in triplicate with
MHC Chaman Lal, PW-1. He made necessary entry in the
relevant register at Sr. No.149. The case property was
sent to FSL, Junga. The report of the FSL is Ext. PX. The
investigation was completed and the challan was put up
before the Court after completing all the codal
formalities.”
3. The prosecution mainly relied upon the testimonies of PW7
and PW8, namely Constable Om Prakash and Head Constable Nand
Lal respectively. According to these witnesses, on the day in
question at about 9.00 p.m. when the police party had reached
3
the other side of the Ruara Bridge, they found the appellants
sitting by the side of bonfire and a bag was lying on the
ground near them. As the police put search light towards the
direction of the appellants, the appellants tried to run away.
The police party followed them and after having crossed a
distance of about 100 meters, they were nabbed. Thereafter,
the bag was also retrieved which was found to contain charas
weighing about 1.5 kgs. According to the witnesses, the
electronic weighing scale which was with the police party was
utilized to check the weight of the contraband. Thereafter,
the procedure for taking personal search of the accused was
followed.
4. The entire evidence was considered by the Trial Court and
in the opinion of the Trial Court, broadly three features
emerged from the evidence:
1. The Report of the FSL Ex.PX did not show anywhere
that the resin was of cannabis plant in order to
bring it within the definition of “Charas”.
2. The Police did not give any option to the
appellants to be searched before a Magistrate of
a competent Gazetted Officer.
3. Going by the evidence on record, the case of the
prosecution could not be believed.
With this view, the Trial Court by its judgment and order
dated 31.08.2012 acquitted the appellants of the offence for
which they were charged.
4
5. The State being aggrieved preferred Criminal Appeal
No.546 of 2012 in the High Court, which appeal was allowed by
the High Court by its judgment under challenge. By a
subsequent order, the sentence as stated hereinabove was
imposed upon the appellant.
6. In this appeal, we have heard Mr. A. Sirajudeen, learned
Senior Advocate assisted by Mr. S. Mahendran and Mr. Parnam
Prabhakar, learned Advocates, and Mr. Aditya Dhawan, learned
Advocate for the appellants and Mr. Abhinav Mukerji, learned
Advocate for the State.
7. It is well settled that:-
(A) While dealing with an appeal against acquittal, the
reasons which had weighed with the Trial Court in
acquitting the accused must be dealt with, in case the
appellate Court is of the view that the acquittal
rendered by the Trial Court deserves to be upturned (See
Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and
another v. State of Himachal Pradesh4).
(B) With an order of acquittal by the Trial Court, the
normal presumption of innocence in a criminal matter gets
reinforced (See Atley v. State of Uttar Pradesh5).
3 (2019) 5 SCC 436 at para 31
4 (2020) 10 SCC 166 at para 14.3
5 AIR 1955 SC 807 at page 809
5
(C) If two views are possible from the evidence on
record, the appellate Court must be extremely slow in
interfering with the appeal against acquittal (See
Sambasivan and others v. State of Kerala6).
8. A perusal of the judgment passed by the High Court does
not show that the High Court had considered the matter from
the perspective stated above. As a matter of fact, the High
Court proceeded to consider the evidence on record
straightaway without considering the reasons that had weighed
with the Trial Court. The approach to be adopted was laid
down by this Court in Ramesh Babulal Doshi v. State of
Gujarat7 as under:-
“7. Before proceeding further it will be pertinent to
mention that the entire approach of the High Court in
dealing with the appeal was patently wrong for it did
not at all address itself to the question as to whether
the reasons which weighed with the trial court for
recording the order of acquittal were proper or not.
Instead thereof the High Court made an independent
reappraisal of the entire evidence to arrive at the
above-quoted conclusions. This Court has repeatedly laid
down that the mere fact that a view other than the one
taken by the trial court can be legitimately arrived at
by the appellate court on reappraisal of the evidence
cannot constitute a valid and sufficient ground to
interfere with an order of acquittal unless it comes to
the conclusion that the entire approach of the trial
court in dealing with the evidence was patently illegal
or the conclusions arrived at by it were wholly
untenable. While sitting in judgment over an acquittal
the appellate court is first required to seek an answer
to the question whether the findings of the trial court
are palpably wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate court
6 (1998) 5 SCC 412 at para 8
7 (1996) 9 SCC 225
6
holds, for reasons to be recorded, that the order of
acquittal cannot at all be sustained in view of any of
the above infirmities it can then — and then only —
reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we
have therefore to first ascertain whether the findings
of the trial court are sustainable or not.”
9. We have checked the original record to satisfy ourselves.
Exhibits PW8/B, PW8/C, PW8/D and PW8/E, which are arrest
memos, do not reflect that any option or choice was given to
the accused before their personal search was undertaken. It
is true that the personal search did not result in recovery of
any contraband material but the non-compliance of requirement
of affording an option, was one of the reasons which weighed
with the Trial Court in disbelieving the case of the
prosecution.
10. Considering the totality of the circumstances, in our
view, the assessment on facts made by the Trial Court was
absolutely correct and did not call for any interference by
the High Court.
11. We, therefore, allow this appeal, set-aside the judgment
and order passed by the High Court and restore the order of
acquittal recorded by the Trial Court. The fine, if any, paid
by the appellants be returned to them.
12. The appellants shall be set at liberty forthwith unless
their custody is required in connection with any other crime.
7
13. We express our gratitude for the assistance rendered by
Mr. A. Sirajudeen, learned Senior Advocate, Mr. S. Mahendran
and Mr. Parnam Prabhakar, learned Advocates, who appeared on
behalf of the Supreme Court Legal Services Committee.
............................J.
(UDAY UMESH LALIT)
............................J.
(S. RAVINDRA BHAT)
............................J.
(PAMIDIGHANTAM SRI NARASIMHA)
New Delhi,
March 09, 2022.
