2017 (11) TMI 778 - SC - Indian Laws

Charge under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HC reversing the verdict of acquittal of the appellant by the Trial Court - seriousness of offence - Held that - This Court concluded that the finding of innocence recorded by Trial Court was a reasonably possible view taken on the basis of the evidence and materials on record and thus the High Court ought not to have disturbed the same even if, on a re-appreciation of the evidence it was inclined to take a different view. This Court reiterated the oft quoted fundamental proposition that so long the view taken by the Trial Court in awarding acquittal on a criminal charge was a possible one, the exercise of the appellate power of the High Court under Section 378 of the Code would remain circumscribed by the well-settled parameters noticed hereinabove. The conviction of the appellant was set aside in the attendant facts and circumstances and his acquittal was restored. The Trial Court acquitted the appellant holding that the prosecution had failed to prove the charge beyond reasonable doubt. In the appeal, filed by the State, the High Court convicted and sentenced the appellant as above. The principal plea of the appellant before this Court was that the High Court had failed to appreciate that in absence of any independent witness, the evidence of the police witnesses ought to have been scrutinized with greater care and as the police witnesses had contradicted themselves about the authorship of the seizure memo, the arrest memo, consent memo and the NCB, no interference with the acquittal ought to have been made. The evidence of PW-4 and PW-6 was referred to for reinforcing the above assertion. The High Court in the attendant facts and circumstances, in our determination, erred in upturning the findings recorded by the Trial Court. The impugned judgment and order is thus set aside and the acquittal of the appellant is restored. This Court shares the concern expressed by the Trial Court on the shoddy investigation conducted in the case, having regard in particular to the seriousness of the offence involved and reiterate the direction issued by it to the Superintendent of Police, Kullu to enquire into the matter to ascertain the reason for the omission/lapses in the investigation, identify the person(s) responsible therefor and the action taken in connection therewith so as to ensure against repetition of such shortcomings in future

Summary

Issues Involved:
1. Reversal of acquittal by the High Court.
2. Identification of the appellant as the driver of the vehicle.
3. Conscious possession of the contraband.
4. Credibility of the evidence and adherence to legal procedures.
5. Appellate Court's power to reverse acquittal.

Issue-wise Detailed Analysis:

1. Reversal of Acquittal by the High Court:
The High Court reversed the Trial Court’s acquittal of the appellant, convicting him under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant was sentenced to 20 years of rigorous imprisonment and fined ?2 lakhs. The High Court emphasized the identification of the appellant and the recovery of his passbook from the vehicle.

2. Identification of the Appellant as the Driver of the Vehicle:
The prosecution's case rested significantly on the identification of the appellant, Khekh Ram, as the driver who fled the scene. PW-1, HHC-Hira Singh, claimed to recognize the appellant in the search light but admitted in cross-examination that he had only seen the side face from a distance of 40-50 yards and that the appellant was not known to him prior. PW-8, the Investigating Officer, did not initially claim to recognize the driver but later stated in cross-examination that he could recognize him. The Trial Court found these testimonies insufficient for positive identification, noting the absence of a test identification parade and the reliance on the passbook found in the vehicle.

3. Conscious Possession of the Contraband:
The gravamen of the charge required proving the appellant's conscious possession of the 14.750 kgs of charas. The Trial Court highlighted that the search and seizure were conducted without independent witnesses and in the appellant's absence. The High Court, however, inferred possession from the recovery of the appellant's passbook and the lack of explanation for its presence. The Supreme Court found the Trial Court's view reasonable, emphasizing that the presence of the passbook alone could not conclusively establish possession.

4. Credibility of the Evidence and Adherence to Legal Procedures:
The Trial Court scrutinized the evidence, noting significant anomalies such as the absence of the appellant's name in the initial ruqqa and the special report, and discrepancies in the photographs purportedly taken at the scene. The High Court overlooked these issues, focusing instead on the passbook and the appellant's failure to explain its presence. The Supreme Court found the Trial Court's detailed examination of evidence more convincing, particularly criticizing the prosecution's failure to provide a coherent and consistent identification of the appellant.

5. Appellate Court's Power to Reverse Acquittal:
The Supreme Court reiterated that an appellate court has full power to review and reconsider evidence but should exercise restraint in reversing acquittals unless the Trial Court's view is not reasonably plausible. The Supreme Court cited precedents emphasizing that suspicion, however grave, cannot replace proof. The view taken by the Trial Court was deemed overwhelmingly reasonable, and the High Court's reversal was found to lack sound, cogent, and persuasive reasons based on recorded facts and applicable law.

Conclusion:
The Supreme Court set aside the High Court's judgment, restoring the appellant's acquittal. It directed the Superintendent of Police, Kullu, to investigate the lapses in the investigation and submit a report within three months. The appellant was ordered to be released from custody if not required in any other case.