2020 (10) TMI 1103 - SC - Indian Laws

Smuggling - Charas with a resin content of 34.5% - offence under Section 20 of the NDPS Act - scope and essence of the High Court s appellate jurisdiction against a judgment of acquittal - extent of reliance upon a document with which the other side was not confronted with during cross-examination - non-examination of independent witnesses. Scope of appeal in cases of acquittal - HELD THAT - There is no legal necessity for us to reappreciate the entire evidence merely on the premise that the High Court has convicted the appellant for the first time in exercise of its appellate jurisdiction. Instead, the scope of the present appeals ought to be restricted to test whether the trial Court s order was indeed perverse and whether the High Court s reappreciation of evidence and consequent conviction was founded on cogent evidence. Reliance on prosecution s reply to bail application - HELD THAT - The High Court has correctly noted in the present case that no opportunity to controvert this reply document was given to the prosecution, nor was PW5 confronted with it. Moreover, no weight can be accorded to such reply when the trial Court itself, while rejecting bail on 17.11.1994, had interpreted the same to conclude that the police was not having a prior information that the petitioner was carrying Charas in his Maruti Van, though, it appears, that there was a general information against the petitioner indulging in such activities. - Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the High Court was adequately justified to interfere with and reverse the findings. Need for independent witnesses - HELD THAT - As regards the question of contradiction between PW2 and PW5 s statements, we find that the High Court s observations are unimpeachable. It would indeed be patently wrong to suggest that PW5 deposed that the independent witnesses were called after the suspected contraband had already been recovered from underneath the 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. Leniency in sentencing - HELD THAT - Section 20(ii)(C) of the NDPS Act, as it stands post the amendment of 2001, specifies the same minimum mandatory punishment of ten years for possession of commercial quantity of cannabis. The High Court, as the law was being misconstrued at that time, relied upon the quantity of pure resin content of 424 gms - the sentence accorded by the High Court is clearly already far too charitable. The appellant s bail bonds are cancelled and the respondent State is directed to take the appellant into custody to serve the remainder of his two years sentence - Appeal dismissed.

Issues Involved:
1. Scope of the High Court’s appellate jurisdiction against a judgment of acquittal.
2. Extent of reliance upon a document with which the other side was not confronted during cross-examination.
3. Impact of non-examination of independent witnesses on the prosecution case.
4. Consideration of leniency in sentencing.

Detailed Analysis:

A) Scope of Appeal in Cases of Acquittal
The Supreme Court examined whether the High Court exceeded its jurisdiction in setting aside the trial court’s acquittal. It was clarified that appellate courts have the power to reconsider questions of both law and fact and re-appreciate the entirety of evidence on record. However, there is a self-restraint on such power, considering the presumption of innocence. The Supreme Court cited *Ramabhupala Reddy v. State of Andhra Pradesh* and *State of UP v. Banne*, noting that interference is justified in cases of patent errors of law, grave miscarriage of justice, or perverse findings of fact. The Court emphasized that it would not reappraise evidence unless the High Court disregarded established principles or substantial and grave injustice had been done.

B) Reliance on Prosecution’s Reply to Bail Application
The trial court’s acquittal was primarily based on the finding that the case was not one of ‘chance recovery’, relying on a reply submitted by the prosecution in opposition to the appellant’s bail application. The Supreme Court noted that reliance on such a document without confronting the concerned witness during cross-examination was inappropriate. The Court cited *Sita Ram Bhau Patil v. Ramchandra Nago Patil*, emphasizing that the opposite party must be confronted with an admission during cross-examination. The High Court correctly noted that no opportunity to controvert this reply was given to the prosecution, and the trial court’s reliance on it was impermissible.

C) Need for Independent Witnesses
The Supreme Court addressed the trial court’s observation that no independent witness supported the prosecution case and that the testimonies of police witnesses were contradictory. The Court noted that lack of independent witnesses is not fatal to the prosecution case, as held in *Kalpnath Rai v. State*. The High Court provided cogent reasons showing how the testimony of the alleged hostile independent witness (PW1) substantially supported the prosecution case. PW1’s statement broadly corroborated the seizure of contraband from the appellant’s possession. The High Court also clarified that there was no material contradiction between the statements of PW2 and PW5 regarding the presence of independent witnesses during the search.

D) Leniency in Sentencing
The Supreme Court considered the leniency in sentencing awarded by the High Court. Despite the mandatory minimum sentence of ten years under Section 20(ii) of the NDPS Act, the High Court had imposed a sentence of two years’ rigorous imprisonment and a fine of ?50,000, considering the appellant’s age, circumstances, and delay in trial. The Supreme Court noted that the High Court’s reliance on the pure resin content for sentencing was incorrect, as clarified in *Hira Singh v. Union of India*. The total quantity of the mixture, including the neutral substance, should be considered, which in this case was 1 kg 230 gms, exceeding the definition of ‘commercial quantity’. Thus, the sentence awarded by the High Court was already lenient.

Conclusion
The Supreme Court dismissed the appeals, upheld the High Court’s conviction, and directed the respondent State to take the appellant into custody to serve the remainder of his two years’ sentence.

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