TMI Blog2020 (10) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... oreover, 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 et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as weighed using scales obtained from a nearby shop and was found to be 1 kg and 230 gms. After a 10 gm sample of the contraband was extracted, the charas was sealed and seized, and other procedural formalities were completed. The appellant was arrested and statement of one of the two independent witnesses Nam Singh (PW1) was recorded. The sample was sent for chemical analysis where it was confirmed to be charas with a resin content of 34.5%. The prosecution, accordingly, charged the appellant for offence under Section 20 of the NDPS Act. 4. Over the course of trial, five witnesses were examined by the prosecution and various documents including PW1 s statement, appellant s written consent for search, recovery memo, arrest memo, seals and site plan were adduced in evidence. PW1 was declared hostile by the prosecution as he denied having personally witnessed seizure of the charas, but nevertheless he broadly supported the prosecution case as regards procedural compliances, sealing of the recovered narcotics and presence of the appellant. PW2 to PW5, being police witnesses, corroborated the prosecution version regarding search, seizure, and other statutory compliances under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d immaterial. Fourth and most crucially, PW5 (Investigating Officer) had not been confronted with the prosecution s earlier reply to the bail application and thus the same could not be relied upon to doubt the prosecution version. The High Court further opined that the alternate theory propounded by the defence was selectively not suggested to PW5. Given these two facts, there was nothing to infer that there was any prior information and the case was clearly one of chance recovery, thus ameliorating the requirements to comply with Section 42 of the NDPS Act. 7. The High Court thereafter heard the appellant on the quantum of sentence and passed a separate order of sentencing dated 18.05.2010, observing that although the quantity of the seized charas was 1 kg 230 gms but the pure resin content was only 424 gms, which was not a commercial quantity . Further, giving due weight to the appellant s dependants and the over 15 years delay in trial, the High Court awarded a lenient sentence of two years rigorous imprisonment and a fine of ₹ 50,000 (or further one-year imprisonment in lieu thereof). CONTENTIONS OF PARTIES 8. The aggrieved appellant has challenged the revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquittal 11. The appellant s contention that the High Court could not have set aside a finding of acquittal, is legally unfounded. It has been settled through a catena of decisions that there is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal. An appellate Court is free to reconsider questions of both law and fact, and re- appreciate the entirety of evidence on record. There is, nonetheless, a selfrestraint on the exercise of such power, considering the interests of justice and the fundamental principle of presumption of innocence. Thus, in practice, appellate Courts are reluctant to interfere with orders of acquittal, especially when two reasonable conclusions are possible on the same material. Ramabhupala Reddy v. State of Andhra Pradesh, (1970) 3 SCC 474. 12. This Court has very illustratively, in State of UP v. Banne (2009) 4 SCC 271, 28 , listed circumstances were interference of an appellate Court against acquittal would be justified. These would include patent errors of law, grave miscarriage of justice, or perverse findings of fact. In turn, Babu v. State of Kerala (2010) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on cogent evidence. B) Reliance on prosecution s reply to bail application 15. It is apparent that the appellant s acquittal was primarily based upon the finding that the case was not one of chance recovery . The trial Court reached such finding solely on the basis of certain averments made in a written reply submitted on 09.11.1994 by the prosecution in opposition to the appellant s bail application. 16. Learned counsel for the appellant could not fairly dispute the distinction between replies submitted to the Court in some pending proceedings, as compared to the statements recorded by the police under Section 161 of CrPC. Nevertheless, a Court should be overcautious to place reliance on a piece of evidence with which the concerned witness has not been confronted despite an opportunity to do so. Although there is no need to separately prove the court records emanating during trial but no legal presumption can be extended to the veracity of the contents of such documents. The reply filed in court proceedings, at best, can be treated as an admission; which as held by this Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil (1977) 2 SCC 49, must not only be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliable can form the basis of a successful conviction. 20. The trial Court held that no independent witness supported the prosecution case and that the testimonies of the star policewitnesses, namely, PW2 and PW5, were contradictory. Both these observations are unreasoned and unsubstantiated by the evidence on record. The High Court, on the contrary, has given cogent and lucid reasons as to how the testimony of PW1 (alleged hostile independent witness) also substantially supports the prosecution case. 21. Although declared hostile by the prosecution, Nam Singh (PW1), admits to being literate and having signed his statement on the spot. During cross-examination he admits to having duly perused the contents of these documents before having signed them, and of not being under any form of police pressure, thus, seriously undermining any oral statement to the contrary. His deposition independently establishes that the Maruti van of the appellant had indeed been stopped, the appellant s consent was taken, a search had been conducted, certain items were seized and some substance had been weighed and sealed. Although PW1 claimed not to have specifically witnessed seizure of the chara ..... X X X X Extracts X X X X X X X X Extracts X X X X
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