By TIOL News Service

NEW DELHI, NOV 11, 2017: THE instant appeal challenges the judgment and orders dated 19.09.2016 and 22.09.2016 of the High Court of Himachal Pradesh reversing the verdict dated 29.12.2010 of acquittal of the appellant by the Trial Court from the charge under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. By the impugned decision, the appellant thus stand convicted under the above provisions of the Act and has been sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs . 2 lakhs, in default to suffer rigorous imprisonment for a period of one year.

The facts portraying the prosecution case originate from the wee hours of 20.10.2009, precisely 4 a.m when the police patrol party led by Inspector/ SHO Sanjeev Chauhan (PW-8), while located at a place known as Kelti Dhar noticed an Alto vehicle bearing registration No.HP - 01K -0805 moving towards them from Shallang onward to Kullu. On seeing the patrol party, the driver of the vehicle stopped it, alighted therefrom and made good his escape in the adjacent apple orchard so much so that in spite of vigorous search operations by using the search lights, he could not be apprehended. As the place was secluded, the investigating officer, PW-8 directed HHC-Hira Singh, a member of the team to scout for independent witnesses to participate in the imminent search operations. The said constable however returned after 15-20 minutes to disclose that neither any independent witness was available at that hour nor any passerby was noticeable. At this, the investigating officer associated HHC-Kashmi Ram and HHC-Hira Singh as witnesses and initiated a search of the vehicle in their presence. In course of the search, a black and red bag was found by the side of the seat of the driver and when opened the search party found black substance which prima facie by its smell appeared to be charas . The search team also retrieved the registration certificate of the vehicle which was in the name of Ses Ram son of Shri Devi Singh as well as a bank passbook of Himachal Gramin Bank issued in the name of Khekh Ram son of Chuhru Ram, R/o village Gramang, PO – Shallang showing a deposit of Rs.1,79,029 /- as on 03.10.2009. The contraband on being weighed was found to be of 14.750 kgs .

In the report under Section 173 Cr.P.C . the driver of the vehicle who fled was described to be stoutly built with height of 5'5" and aged about 30-35 years and was referred to as Khekh Ram. After the completion of seizure, ruqqa was sent to the police station through HHC-Hira Singh for the registration thereof. In course of the investigation on 20.10.2009, the owner of the vehicle Ses Ram was summoned who disclosed that he had sold the vehicle to one Govind Singh on 03.08.2009. Govind Singh was intercepted on 20.10.2009 who in turn disclosed that on 19.10.2009 the vehicle was taken by Khekh Ram for some personal work. Subsequent thereto, the appellant, Khekh Ram was arrested on 21.10.2009 while he was driving another vehicle. Govind Singh was later on arrested on 06.03.2010 and on completion of the investigation following the receipt of the report of the chemical analysis, proceedings under Sections 20 and 29 of the Act was instituted against the appellant and Govind Singh. The accused persons having denied the charge, they were put to trial.

The Trial Court on an analysis of the evidence on record acquitted both the accused persons. On appeal being filed by the State, the High Court reversed the acquittal qua the appellant only while maintaining the exoneration of the co-accused Govind Singh.

The Supreme Court observed the general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal as,

1. An appellate court has full power to review, re-appreciate 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."

The Supreme Court further observed,

- Though it is no longer res integra that an order of acquittal, if appealed against, ought not to be lightly interfered with, it is trite as well that the Appellate Court is fully empowered to review, re-appreciate and reconsider the evidence on record and to reach its own conclusions both on questions of fact and on law.

- As a corollary, the Appellate Court would be within its jurisdiction and authority to dislodge an acquittal on sound, cogent and persuasive reasons based on the recorded facts and the law applicable. If only when the view taken by the Trial Court in ordering acquittal is an equally plausible and reasonable one that the Appellate Court would not readily substitute the same by another view available to it, on its independent appraisal of the materials on record. This legally acknowledged restraint on the power of the Appellate Court would get attracted only if the two views are equally plausible and reasonable and not otherwise. If the view taken by the Trial Court is a possible but not a reasonable one when tested on the evidence on record and the legal principles applied, unquestionably it can and ought to be displaced by a plausible and reasonable view by the Appellate Court in furtherance of the ultimate cause of justice.

- Though no innocent ought to be punished, it is equally imperative that a guilty ought not to be let of casually lest justice is a casualty.

The Supreme Court revisited the essential aspects of the evidence bearing in particular on the identification of the appellant as the possessor and carrier of the contraband and observed,

- It is a common place proposition that in a criminal trial suspicion however grave cannot take the place of proof and the prosecution to succeed has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused.

- For this, the prosecution case has to be in the category of "must be true" and not "may be true".

- It is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof.

- The well established cannon of criminal justice is "fouler the crime higher the proof".

- In unmistakable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.

- In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record.

- The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

- If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

In view of the above principles, the Supreme Court held,

"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. The Superintendent of Police, Kullu would complete the inquiry and submit a report to this Court within a period of three months herefrom . The appeal is allowed. The appellant be released from custody if not required in connection with any other case."

(See 2017-TIOL-415-SC-NDPS)