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2020 (10) TMI 1103 - SC - Indian LawsSmuggling - 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.
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