Narcotic Drugs & Psychotropic Substances Act, 1985 – ss.20,
50 and 54 – Appellant was charged u/s.20 – Acquitted by trial court – Convicted by High Court – On appeal, held: Findings recorded by trial court are contrary to the evidence on record – s.50 is applicable only in case of personal search – No basis for the findings recorded by trial court that there was non-compliance of provision u/s.50 – Depositions of prosecution witnesses are trustworthy and cannot be said to be unnatural and improbable – No suggestion of tampering of the samples was put either to PW-1 or PW-2 – It is always open to the appellate courts to reappreciate the evidence, on which the order of acquittal is founded and are vested with the powers to review and come to their own conclusion – Further, appellant was on the counter of the dhaba constructed on the land owned by his wife near the temple and charas was found in the counter of the dhaba in a gunny bag – He not only had direct physical control over charas, he had the knowledge of its presence and character – Onus was on him to explain the possession and in absence of the same being discharged, presumption u/s.54 also will kick in – Judgment of High Court does not suffer from any infirmity – However, on facts the sentence is reduced from 15 years to 10 years – Evidence – Code of Criminal Procedure, 1973 – s.313 . Criminal Trial – Appeal against acquittal – Power of appellate courts – Discussed.
Words & Expressions –”possession” – Meaning of, in the context of 1985 Act – Discussed – Narcotic Drugs & Psychotropic Substances Act, 1985.
Partly allowing the appeal, the Court
HELD: 1.1 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. 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 NDPS Act. The depositions of PW-4; PW-3; PW-1 and PW-2 are consistent and trustworthy and cannot be said to be unnatural and improbable. There was no suggestion of tampering either put to PW-1 or to PW-2. 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 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. Accused not only had direct physical control over charas, he had the knowledge of its presence and character. In the case of Mohan Lal 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. 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. 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. The judgment of the High Court does not suffer from any infirmity so as to interfere with the judgment of conviction. 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, 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. [Paras 10-13][567-C-D; 568-C, G; 570-G-H; 571-A-F]
Sanwat Singh & Ors. v. State of Rajasthan [1961] 3 SCR 120; Damodarprasad Chandrikaprasad v. State of Maharashtra (1972) 1 SCC 107 : [1972] 2 SCR 622; Vinod Kumar v. State of Haryana (2015) 3 SCC
138 : [2015] 1 SCR 328; Mohan Lal v. State of Rajasthan (2015) 6 SCC 222 : [2015] 5 SCR 435; State of H.P. v. Pawan Kumar (2005) 4 SCC 350 : [2005] 3 SCR 417 – relied on.
Union of India v. Bal Mukund & Ors. (2009) 12 SCC
161 : [2009] 5 SCR 205; Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210 : [2006] 10 Suppl. SCR 977; Rangaiah v. State of Karnataka (2008) 16 SCC 737 : [2008] 17 SCR 396; Jagdish v. State of M.P. (2003) 9 SCC 159; Gyan Singh v. State of U.P. (1995) Supp. 4 658; Gopal v. State of M.P. (2002) 9 SCC 595; State of Punjab v. Balkar Singh & Anr. (2004) 3 SCC 582: [2004] 3 SCR 25; K. Mohanan v. State of Kerala (2000)
10 SCC 222; Dharampal Singh v. State of Punjab (2010) 9 SCC 608 : [2010] 10 SCR 1160; Baldev Singh v. State of Haryana (2015) 17 SCC 554 : [2015] 12 SCR 969; Madan Lal & Anr. v. State of H.P. (2003) 7 SCC 465 : [2003] 2 Suppl. SCR 716 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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