TMI Blog2020 (9) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Lal (2015) 6 SCC 222 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6 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 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 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 ₹ 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mukund (2009) 12 SCC 161 ; Francis Stanly (2006) 13 SCC 210 ; and Rangaiah (2008) 16 SCC 737 . 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 on the judgments of this Court in the case of Sanwat Singh (1961) 3 SCR 120 ; Damodarprasad Chandrikaprasad (1972) 1 SCC 107 and Vinod Kumar (2015) 3 SCC 138 . Though the ratio laid down in the judgments relied on by the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 recons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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