Jeet Ram vs The Narcotics Control Bureau, … on 15 September, 2020


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Supreme Court of India

Jeet Ram vs The Narcotics Control Bureau, … on 15 September, 2020

Author: R. Subhash Reddy

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

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


                                                         JUDGMENT

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

Signature Not Verified prosecution was not free from doubt and there were many infirmities in
Digitally signed by
MEENAKSHI KOHLI
Date: 2020.09.15
16:27:30 IST
Reason: 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
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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
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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

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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.

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