Naresh Kumar @ Nitu vs The State Of Himachal Pradesh

NARESH KUMAR alias NITU ..........APPELLANT

Versus

STATE OF HIMACHAL PRADESH ......RESPONDENT

JUDGMENT

NAVIN SINHA, J.

The acquittal of the appellant by the Special Judge, Shimla

in Sessions Trial No.7-S/7/2012, from the charge under Sections

20 and 61 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred as ‘the Act’) has been reversed by

the High Court. The appellant has been sentenced to fifteen years

imprisonment and fine of Rs.2,00,000/-. Thus the present Signature Not Verified

appeal.

Digitally signed by NEETU KHAJURIA Date: 2017.07.27 18:04:47 IST Reason: 1

2. The appellant is stated to have been apprehended at

Majhotli, by the police party, on suspicion, at about 6.15 A.M.

after he disembarked from the State public transport bus going

from Nerwa to Chamunda. Two kilograms of Charas is stated to

have been recovered from a bag in his possession in presence of

PW-2, Sita Ram an independent witness. DW-1 Shayam Singh,

the depot in-charge at Nerwa, and DW-2 Khem Raj, the conductor

of the bus in question were examined as defence witnesses.

3. After consideration of the entirety of the evidence,

particularly that of PW-2 and DW-2, and also noticing that PW-1,

Constable Rakesh Kumar, an eye-witness to the incident, had not

been mentioned as a witness in the seizure memo Exhibit

PW-1/B, the Special Judge opined that two theories had emerged

with regard to the accusations against the appellant. The

appellant was acquitted, giving him the benefit of doubt.

4. The High Court reversed the acquittal, holding that PW-2

had admitted his signatures on Exhibit PW-1/B, the bag along

with the narcotic, Ex.PW-2/A seal impression, Ex.PW-2/D the 2 arrest memo and the Ex.PW-2/E personal search memo. No

complaint had been lodged by the witness that he had been

compelled by the police to sign the documents under pressure.

The statements of the official witnesses, PW-1 Rakesh Kumar and

PW-6 Head Constable Parmanand, were trustworthy, inspiring

confidence, and could not be rejected only on the ground that

they were police personnel. Any discrepancy with regard to

distance and travelling time between Nerwa and Majhotli could be

attributed to memory loss with passage of time, and was not

required to be with mathematical precision. The time with regard

to purchase of bus ticket had not been established.

5. Learned counsel for the appellant submits that he has been

falsely implicated. He was deboarded from the bus at Chopal after

it arrived from Majhotli and the narcotics planted on him. There

had been no recovery from him. The bus ticket evidently reveals

that he boarded the bus at 6:51 A.M. The question of his being

apprehended at 6:15 A.M. simply does not arise. The road

distance from Nerwa to Majhotli was 26 kms. as deposed by

DW-1. In the hills, it would have taken the bus at least one hour 3 or more, to cover this distance. The bus could not have reached

Majhotli till 8:00 A.M. or thereafter. PW-2, the independent

witness, deposed that he was stopped by the police at about

10.30 A.M. at Majhotli and after checking his motor cycle papers

was allowed to leave. He was called to the Police Station at 1.00

P.M. and asked to put his signatures on certain documents. The

witness denied any search, seizure and recovery from the

appellant in his presence. If an independent witness was

available, and relied upon by the prosecution, his evidence could

not be discarded without reason, to hold that the police version

was the truth. Additional submissions were made with regard to

non-compliance with Section 50 of the Act, as there was personal

search also, and that the complainant himself could not be the

investigating officer. Reliance was placed on Basappa vs. State

of Karnataka, 2014 (5) SCC 154 that if two views were possible,

the acquittal ought not to have been interfered with in appeal.

6. We have considered the submissions on behalf of the

parties, and also examined the evidence and other materials on

record.

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7. The public bus, on which the appellant was traveling, was

going from Nerwa to Chamunda. The ticket issued to the

appellant Exhibit DX, proved by the bus Conductor DW-2, bears

the time of issuance 6.51 A.M., visible to the naked eye. The

distance from Nerwa to Majhotli, is 26 kms. as deposed by DW-1.

We find substance in the submission on behalf of the appellant,

that the travelling time for the bus, in the hills, for this distance

would be one hour or more. Prima facie, the prosecution story

that the appellant was apprehended at Majhotli at 6.15 A.M.

becomes seriously doubtful if not impossible. The bus would have

reached Majhotli at about 8.00 A.M. or thereafter only. The

conclusion of the High Court that passage of time, and memory

loss, were sufficient explanation for the time difference, is held to

be perverse, and without proper consideration of Exhibit DX.

PW-2, the independent witness has stated that he was stopped at

Majhotli by the police at 10.30 A.M. and was allowed to leave after

verification of his motor cycle papers. The witness has specifically

denied that the appellant was apprehended in his presence and

that any search, seizure and recovery was conducted in his

5 presence. He had deposed that he was called to the police station

at 1:00 P.M. and asked to sign the papers. The witness was

declared hostile. This aspect has not been considered by the

High Court, which proceeded on the only assumption that the

signatures were admitted.

8. In a case of sudden recovery, independent witness may not

be available. But if an independent witness is available, and the

prosecution initially seeks to rely upon him, it cannot suddenly

discard the witness because it finds him inconvenient, and place

reliance upon police witnesses only. In the stringent nature of the

provisions of the Act, the reverse burden of proof, the

presumption of culpability under Section 35, and the

presumption against the accused under Section 54, any reliance

upon Section 114 of the Evidence Act in the facts of the present

case, can only be at the risk of a fair trial to the accused.

Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC

1311, is distinguishable on its facts as independent witness had

refused to sign because of the fear of terrorists. Likewise S.

6 Jeevananthanan vs. State, 2004(5) SCC 230, also does not

appear to be a case where independent witnesses were available.

9. The presumption against the accused of culpability under

Section 35, and under Section 54 of the Act to explain possession

satisfactorily, are rebuttable. It does not dispense with the

obligation of the prosecution to prove the charge beyond all

reasonable doubt. The presumptive provision with reverse burden

of proof, does not sanction conviction on basis of preponderance

of probability. Section 35 (2) provides that a fact can be said to

have been proved if it is established beyond reasonable doubt and

not on preponderance of probability. That the right of the accused

to a fair trial could not be whittled down under the Act was

considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417,

observing:-

“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If 7 the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”

10. In the facts of the present case, and the nature of evidence

as discussed, the prosecution had failed to establish the

foundational facts beyond all reasonable doubt. The special judge

committed no error in acquitting the appellant. The High Court

ought not to have interfered with the same. The submissions

regarding non-compliance with Section 50 of the Act, or that the

complainant could not be the investigating officer are not

considered necessary to deal with in the facts of the case.

11. In Basappa (supra), it was observed that the High Court

before setting aside an order of acquittal was required to record a

finding that the conclusions of the Trial Court were so perverse

8 and wholly unreasonable, so as not to be a plausible view by

misreading and incorrect appreciation of evidence. The

conclusions of the High Court in the facts of the present case are

more speculative, based on conjectures and surmises, contrary to

the weight of the evidence on record.

12. The order of the High Court is set aside. The acquittal of the

appellant ordered by the Special Judge is restored. The appellant

is set at liberty forthwith, unless wanted in any other case. The

appeal is allowed.

………………………………….J. (L. Nageswara Rao)

……….………………………..J. (Navin Sinha) New Delhi, July 27, 2017

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