Criminal Law – Appeal against acquittal – Appellant acquitted u/s.20, NDPS Act – Acquittal reversed by High Court – On appeal, held: Appellant’s acquittal was primarily based upon the finding that the case was not one of ‘chance recovery’ – Trial Court reached such finding on the basis of certain averments made in a written reply submitted by prosecution in opposition to appellant’s bail application – No opportunity to controvert this reply document was given to the prosecution, nor was PW5 confronted with it – Further, PW1’s statement (sole independent witness, though declared hostile by prosecution) corroborates and strengthens the seizure of contraband substance (charas) from the possession of appellant – Testimonies of star police-witnesses, PW2 and PW5 are not contradictory – On facts, two years’ rigorous imprisonment and fine of Rs.50,000/- awarded by High Court is not disturbed – Narcotics, Drugs and Psychotropic Substances Act, 1985 – s.20 – Code of Criminal Procedure, 1973 – s.161 – Constitution of India –Art.136.
Evidence – Court records – Veracity of – Held: No legal presumption can be extended to the veracity of the contents of Court records emanating during trial.
Witness – Lack of independent witnesses – Duty of Courts – Discussed – Criminal Trial.
Narcotics, Drugs and Psychotropic Substances Act, 1985 – s.20(ii)(C) – Minimum mandatory sentence – Discussed – Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 2001. Dismissing the appeals, the Court
HELD: 1. 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 re-consider 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. [Para 11][1051-C-D]
Ramabhupala Reddy v. State of Andhra Pradesh (1970)
3 SCC 474; State of UP v. Banne (2009) 4 SCC 271; Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9 SCR 1039; Ram Jag v. State of UP (1974) 4 SCC 201 : [1974] 3 SCR 9 – relied on.
2.1 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 by the prosecution in opposition to the appellant’s bail application. A Court should be over-cautious 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 must not only be proved, but also the opposite party must be confronted with it at the stage of cross examination. [Paras 15, 16][1052-G; 1053-A-C] Sita Ram Bhau Patil v. Ramchandra Nago Patil (1977)
2 SCC 49 : [1977] 2 SCR 671 – relied on.
2.2 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, 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. [Paras 17, 18][1053-G; 1054-A-B]
3. Lack of independent witnesses are not fatal to the prosecution case. However, such omissions cast an added duty on Courts to adopt a greater-degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction. The trial Court held that no independent witness supported the prosecution case and that the testimonies of the star police-witnesses, namely, PW2 and PW5, were contradictory. Both these observations are unreasoned and unsubstantiated by the evidence on record. Although declared hostile by the prosecution, PW1(alleged hostile independent witness) admits to being literate and having signed his statement on the spot. His statement broadly corroborates and strengthens the seizure of contraband substance from the possession of the appellant.[Paras 19-21][1054-C-E]
4. After having given a very generous consideration to the appellant’s age and circumstances, as well as the delay in trial and appeal, the interests of justice would be served to simply not disturb the sentence of two years’ rigorous imprisonment and a fine of Rs.50,000 awarded by the High Court. The law on minimum mandatory sentence, both at the time of commission of the offence and at the stage of appeal, prohibits any imprisonment lower than a term of ten years. Section 20(ii) of the NDPS Act, as it stood before the amendment of 2001, specified that where contravention relates to cannabis in a form other than ganja, then the same shall be punishable with “rigorous imprisonment which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees”. 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. Instead, as now stands clarified by a co-ordinate Bench of this Court inHira Singh v. Union of India the total quantity of the mixture, which includes the neutral substance, ought to be relevant for purposes of sentencing. This total quantity in the instant case is 1 kg 230 gms, which exceeds the definition of ‘commercial quantity’. Thus, the sentence accorded by the High Court is clearly already far too charitable.[Paras 23-25][1055-C-G; 1056-A]
Hira Singh v. Union of India (2020) SCC OnLine SC 382; Kalpnath Rai v. State AIR 1998 SC 201 – relied on.
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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