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TMI Blog2020 (9) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 the NDPS Act. By further hearing the appellant, order dated 31.12.2012 was passed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh & Anr. (2004) 3 SCC 582. 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 Kerala (2000) 10 SCC 222. 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 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 reapprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat; PW-1 Rakesh Goyal and PW-2 Hayat Singh are consistent and trustworth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal 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 K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same being discharged, presumption under Section 54 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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