In a well-worded, well-drafted, well-articulated, well-reasoned and well-analysed judgment titled Jeet Ram vs. Narcotics Control Bureau, Chandigarh in Case No.: Criminal Appeal No. 688 of 2013 in exercise of its criminal appellate jurisdiction delivered as recently as on September 15, 2020, a three Judge Bench of the Apex Court has laid down in no uncertain terms that Section 50 of the NDPS Act is applicable only in the case of personal search. This the Supreme Court has reiterated unambiguously while affirming the conviction of an accused who was a temple priest. Very rightly so!
To start with, the ball is set rolling in para 1 of this latest, landmark and laudable judgment authored by Justice R Subhash Reddy for himself, Justice Ashok Bhushan and Justice MR Shah wherein it is observed that:
This appeal is filed by the sole accused, in Sessions Trial No. 7-5/2002 of 2001 on the file of Sessions Judge, Shimla, aggrieved by the judgment of conviction dated 11.12.2012 and further order of sentencing the appellant, dated 31.12.2012, passed by the High Court of Himachal Pradesh, Shimla in criminal Appeal No. 493 of 2003.
To be sure, it is then revealed in para 2 that:
The appellant-accused was tried for a charge punishable under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). The Sessions Judge, Shimla by judgment dated 30.06.2003 acquitted the accused by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution.
To put it succinctly, it is then stated in para 3 that, The case as put forth by the prosecution, briefly stated, is as under:
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 officials. Thereafter the bag was searched and the officers have found 13 Kg of charas.
The charas was divided into two portions of 6 ½ 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'. Thereafter all the four samples were sealed in a polythene bag by heat sealing process and were put in paper envelopes and seal with paper seals, signed by NCB officials as well as the appellant-accused Jeet Ram. On each sample seal no. 6 of NCB was affixed on all the four corners and the bulk charas in packets 'X' and 'Y' was sealed in paper parcels with six seals each. The seals were handed over to PW-1 and all the samples and the parcels were signed by NCB officials and accused.
Further, in the statement recorded as contemplated under Section 67 of the NDPS Act, the appellant has admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter a Panchnama was drawn which was signed by the appellant and he was arrested on 19.06.2001. The two samples of 'X1' and 'Y1' along with a letter were sent through PW-2 Hayat Singh to Chemical Analyst for analysis, who has vide his report opined that both the samples were of charas. On the said basis, the appellant-accused was charged and challaned for the offence under Section 20 of the NDPS Act.
To put things in perspective, it is then stated in para 4 that:
When the charge is denied by the appellant-accused, he was tried for the aforesaid offence before the Sessions Judge, Shimla. To prove the guilt of the appellant, the prosecution has examined four witnesses in all, in support of its case. On behalf of the accused oral evidence was let in to show that the dhaba in question was not being run by him and he was employed as a priest in the nearby temple.
After considering the oral and documentary evidence on record, the trial court by judgment dated 30.06.2003 acquitted the appellant-accused mainly on the grounds that – the prosecution case was not supported by any independent witness; the prosecution has failed to show that the seized charas was recovered from the dhaba of the appellant-accused and further there is no evidence to show that the appellant-accused was found in possession of the charas, as pleaded by the prosecution; there was non compliance of Section 50 of the NDPS Act; as the samples was 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.
As it turned out, para 5 then states that:
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 sentencing the appellant-accused to undergo rigorous imprisonment for 15 years and to pay fine of Rs. 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.
Truth be told, the Bench then observes in para 9 that:
Having heard the learned counsel on both sides and on perusal of the record, we do not find any substance in any of the contentions advanced by the learned counsel for the appellant, except the submission on the quantum of sentence.
Most significantly, the Bench then very rightly points out in para 10 that:
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:
- Union of India v Bal Mukund & Ors. (2009) 12 SCC 161;
- Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210 and
- Rangaiah v. State of Karnataka (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 & Ors. v. State of Rajasthan (1961) 3 SCR 120;
- Damodarprasad Chandrikaprasad v. State of Maharashtra (1972) 1 SCC 107 and
- Vinod Kumar v. State of Haryana (2015) 3 SCC 138.
Though the ratio laid down in the judgments relied on by the learned counsel for the appellant is that the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record.
On close scrutiny of the depositions of the witnesses examined on behalf of the prosecution as well as on behalf of the accused, we are of the view that 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.
The trial court acquitted the appellant mainly on the ground that prosecution case was not supported by independent witnesses; conscious possession was not proved; non-compliance of Section 50 of the NDPS Act; proper procedure was not followed in sending the samples for examination and the case of the prosecution was unnatural and improbable.
As rightly held by the High Court, this Court in the case of State of H.P. v. Pawan Kumar (2005) 4 SCC 350 has held that 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. Even with regard to the finding of the trial court that the case of the prosecution was not supported by independent witnesses, it is clear from the evidence on record that the incident had happened at about 10:30 p.m. in a dhaba which is away from the village site and all other persons who are found in the dhaba were the servants of the accused.
It is also clear from the evidence on record that Suresh Kumar and Attar Singh examined on behalf of the appellant are closely related to the accused, as such, they could not be said to be independent witnesses. Pappu was the only other person 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 B.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 and 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 could not be ruled out. In this regard, it is to be noticed, as rightly held by the High Court, that the trial court totally lost sight of the fact that on 19.06.2001 JMIC, Theog had also appended his signatures on the samples as well as bulk parcels and, therefore, there was no chance of tampering of the samples. Further, there was no such suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2 Hayat Singh.
Briefly stated, the key point of para 11 is that:
For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court. As submitted by the learned Additional Solicitor General appearing for the prosecution, 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 judgments in the case of Sanwat Singh; Damodarprasad Chandrikaprasad and Vinod Kumar also support the case of the respondent.
For the aforesaid reasons, we reject the submission made by the learned counsel for the appellant. Even with regard to the plea of the appellant that the evidence on record on behalf of the prosecution is not sufficient enough to hold that the appellant-accused was in conscious possession of the seized material, also cannot be accepted. It is clear from the evidence on record that 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. 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.
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.
Be it noted, it is then observed in para 12 that:
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.
Finally, while adding a rider, it is then held in the last para 13 that:
At the same time we find force in the submission of the learned counsel for the appellant in sentencing the appellant for 15 years rigorous imprisonment with a fine of Rs. 2,00,000/-. 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, we deem it appropriate that it is a fit case to modify the sentence imposed on the appellant.
Accordingly, 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. The order of sentence dated 31.12.2012 passed by the High Court stands modified. The appeal is partly allowed to the extent indicated above.
All said and done, it may well be said that with a lot of painstaking efforts this latest, landmark and extremely laudable judgment has been absolutely right in inferring the logical conclusion and by citing the relevant case laws along with cogent arguments! All the courts of our country in similar such cases must always strictly adhere to the guidelines which have been laid down in this notable case and the reasoning adopted to reach the conclusion that we see here! There can be no denying or disputing as held by a three Judge Bench of the Apex Court in this case that, Section 50 NDPS Act is applicable only in the case of personal search!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkehra, Meerut – 250001, Uttar Pradesh.
