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SUSHIL KUKREJA, J. –

The instant appeal has been preferred by the appellant-State under Section 378 of the Code of Criminal Procedure (Cr.PC) against the judgment of acquittal dated 01.07.2014, passed by learned Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh in Sessions Trial No.17 of 2014 (2013), whereby the accused (respondent herein) was acquitted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the ‘NDPS Act’).

2. Brief facts of the case, giving rise to the present appeal, as per the prosecution story, are that on 06.10.2012, a police party headed by ASI Bala Ram alongwith PSI Gaurav, HC Mukesh Kumar, HC Kapil Kumar proceeded from Police Station Kullu in official vehicle No. HP34-A 9986 being driven by driver Karam Chand for Nakabandi and traffic checking duty and when they reached Kenchi Mod near Chharod nullahManikaran road, Kullu at about 3:00 p.m., a person, having a black coloured bag (rucksack) on his shoulder, came from Jari side towards Chharod nullah and on seeing the police, he turned back and started running from the spot, but he was nabbed by the police at a distance of 100 metres In the meantime, another person, namely Kiran Kumar Shukla, also came there on his Motorcycle, who was stopped by the police and was associated as independent witness and thereafter on being inquired by the police, the aforesaid person disclosed his name as Manish Rawat (accused/respondent herein) and then the bag being carried by the accused was searched by the police in presence of independent witness Kiran Kumar Shukla. During search, in the outer pocket of the bag (black rucksack), one voter ID of accused was found and thereafter when the main pocket of the bag was opened, one plastic bag was found and after opening the said plastic bag, eight lumps wrapped in small plastic packets were found, which on checking were found to be charas. On weighment, the recovered contraband was found to be 840 grams. Thereafter, the police completed all the codal formalities, viz., recovered contraband was put back in the pithoo bag, then in the hand bag, in the same manner and further put in a cloth parcel, which was sealed with six seals, having impression ‘V’ and sample of seal was taken on a separate piece of cloth. NCB-I form, in triplicate, was filled and seal after its use was handed over to HC Kapil Kumar. Thereafter, the rukka was prepared by ASI Bala Ram and was sent to Police Station Kullu, through HC Kapil Kumar, on the basis of which, FIR in question was registered against the accused. Police clicked the photographs, recorded the statements of the witnesses and prepared the spot map. The cloth parcel, containing the recovered contraband, was handed over to SI/SHO, who, after checking the entries, re-sealed the same with three seals of seal impression ‘M’ and relevant columns of NCB-1 form in triplicate were filled. The accused was arrested and got medically examined. As per the SFSL report, the sample sent for analysis was found to be charas. After completion of the investigation, police presented the charge-sheet before the learned Trial Court.

3. On the completion of the investigation and receipt of the SFSL report, the charge-sheet was prepared and presented before the learned Trial Court.

4. Vide order dated 12.05.2014, the learned trial Court, framed charge against the accused under Section 20 of NDPS Act, to which he did not plead guilty and claimed trial.

5. In order to prove its case, the prosecution examined as many as eight witnesses and thereafter statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all set of incriminating evidence led by the prosecution against him, besides pleaded to be innocent and being falsely implicated. However, the accused did not examine any witness in his defence.

6. The learned trial Court, vide impugned judgment dated 01.07.2014, acquitted the accused of the offence punishable under Section 20 of NDPS Act, hence, the instant appeal preferred by the appellant-State.

7. The learned Additional Advocate General contended that the trial Court has not only failed to appreciate the evidence on record in its proper perspective but also has set unrealistic standards to evaluate the direct and cogent evidence led by the prosecution. He further contended that the findings of the learned trial Court are against the principals of criminal jurisprudence as it has been duly proved beyond reasonable doubt that the accused was apprehended by the police and Narcotic substance in the shape of charas weighing 840 grams was recovered from the accused. He also contended that there is no material contradiction in the statements of official witnesses, and their statements are consistent as such, the impugned judgment of acquittal is liable to be set aside.

8. Conversely, the learned counsel for the respondent/ accused contended that the impugned judgment has been passed by the learned Trial Court after proper appreciation of both facts and law. He further contended that the learned Trial Court has correctly appreciated the evidence in its true perspective and the impugned judgment does not require any interference by this Court, therefore, he submitted that the instant appeal, which sans merits, be dismissed.

9. We have heard learned Additional Advocate General for the appellant-State as well as learned counsel for the respondent and also carefully examined the entire records.

10. It is well settled by the Hon’ble Apex Court in a catena of decisions that the Appellate Court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative.

11. In C. Antony Vs. K.G. Raghavan Nair, (2003) 1 SCC 1 = (2002) Law Today Live Doc. Id. 15099, the Hon'ble Apex Court has observed as follows:

"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.”

12. In State of Karnataka Vs. K. Gopalkrishna, (2005) 9 SCC 291, while dealing with an appeal against acquittal, the Court observed:-

"17. We are conscious of the fact that we are dealing with an appeal against an order of acquittal. In such an appeal the appellate court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal…....”

13. In the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and others, reported in (2016) 4 SCC 357, the Hon'ble Apex Court has observed as under:-

"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasivan V.State of Kerala 1998(5)SCC412,has held:

"The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."

21. This court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."

14. From the above decisions, it is clear that the appellate court has the full power to review or re-appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction in exercise of such power by the appellate court and the appellate court may reach at it is own conclusion on the same set of evidence, both on question of facts as well as on law.

15. In the case on hand, the accused stood charged for commission of the offence punishable under Section 20 of NDPS Act. To substantiate the said charge and to bring home the guilt of the accused, the prosecution has examined as many as eight witnesses. However, the case of the prosecution mainly rests upon the statements of PW-1 HC Kapil Kumar, PW-2 ASI Bala Ram (Investigating Officer) and PW-8 Kiran Kumar Shukla (Independent witness), who have been examined primarily to prove the search, recovery and seizure of 840 grams of charas from the exclusive and conscious possession of the accused.

16. PW-1 KC Kapil Kumar as well as PW-2 ASI Bala Ram deposed in one voice that on 06.10.2012, they alongwith other police officials left for Nakabandi and traffic checking duty towards Chharod nullah in official vehicle HP-34-A-9986 being driven by Karam Chand and at about 3:00 pm, a person came by foot from Jari side towards Chharod nullah and on seeing the police party turned back and started fleeing from the spot. On suspicion, the said person was chased by PW-2 and was apprehended at a distance of 100 metres. One Pithu bag was hanging over the right shoulder of that person. At that very moment, another person came from Jari side on motorcycle and was stopped, who disclosed his name as Kiran Shukla and he was associated as independent witness alongwith other police officials. The accused disclosed his name es Manish Rawat and the pithu bag which was recovered from the possession of the accused was checked on which ‘LP’ was written. From the outer pocket of the bag, one voter ID of accused was recovered and when the main pocket of the bag was opened, one plastic bag was recovered and inside the same, eight small plastic packets Ext. P-5 to Ext. P-12 were found and when the same were checked, those were found containing charas, which was weighed and the same was found to be 840 grams. Thereafter, the said charas was again put in polythene bag Ext. P-4 and the said polythene bag was again put in Pithu bag Ext.P-2.Thereafter, the Pithu bag was sealed in a sealed parcel Ext.P-1 with six seals of seal impression ‘V’ and after taking the sample of seal, the case property was seized through memo Ext.PW-1/A. NCB form in triplicate Ext.PW-2/B was also filled up. The seal was handed over to PW-1. Seizure memo Ext.PW-1/A bears the signature of accused, Kiran Shukla as well as PW-1. Thereafter, rukka Ext.PW-1/D was prepared and was sent to Police Station through PW-1 HC Kapil Kumar for registration of case. Thereafter they left for Police Station and after reaching the Police Station, the case property alongwith other documents were handed over to SI/SHO Gambhir Chand for resealing. Both of them were cross-examined at length by the learned defence counsel, however, nothing favourable could be elicited from their length cross-examination which might impeach their credibility. They both successfully withstood the test of cross-examination.

17. PW-8 Kiran Kumar Shukla, who is the independent witness, supported the case of prosecution with respect to the search, recovery and seizure of 840 grams of charas from the exclusive and conscious possession of the accused. He categorically deposed that on 06.10.2012, he had gone to Jari in connection with his business on his Motorcycle. After doing his business work, when he was coming back at about 3 pm to his home and reached near Kenchi Mour, Chharod nala, he was intercepted by the police. The accused was already nabbed by the police, who was asked about his name and he (accused) disclosed his name as Manish Rawat. The police informed him that they wanted to conduct search of accused. One bag, which was on the shoulder of accused was searched and when firstly the outer pocket of the bag was opened, the voter ID of the accused was found. Thereafter, the main pocket of the bag was opened, in which one polythene bag was found and when the said polythene bag was opened, about 7-8 small transparent plastic packets were recovered, in which some black substance was visible. On smelling the said black substance, it was found to be cannabis. The said 7-8 cannabis (chapati numa) packets were weighed, which was found to be about 840 grams. After weighing the aforesaid charas, the same was again put in the said bag. The I.D. was also put in the front pocket of the bag and thereafter the Pithu bag containing the case property and ID was put inside the cloth parcel, which was sealed with eight seals of seal impression 'V’ and the same was seized vide memo Ext. PW-1/A which bears his signatures in red circle and also bear the signatures of other witness and the accused. This witness was also cross-examined at length by the learned defence counsel, however, nothing favourable could be extracted from his crossexamination.

18. Learned Additional Advocate General contended that the prosecution has proved its case beyond shadow of reasonable doubt to the effect that 840 grams of charas was recovered from the exclusive and conscious possession of the accused. He also submitted that as the recovery of charas was effected from the bag, which was being carried by the accused, therefore, the provisions of Section 50 of NDPS Act are not applicable and the learned trial Court had fallen into error in acquitting the accused on the ground that there has been noncompliance of the provisions of Section 50 of the Act.

19. After going through the judgment passed by the learned trial Court, it has become clear that the Court below has acquitted the accused only on the ground that the provisions of Section 50 of NDPS Act have not been complied with by the Investigating Officer and the personal search of the accused was carried out in violation of Section 50 of the Act, as such, the entire case of the prosecution is shrouded with shadow of doubts. The relevant portion of the judgment passed by learned trial Court reads as under:-

“17. In the light of ratio laid down in the case of Suresh versus State of Madhya Pradesh (supra) and also in the light of the facts of the present case as discussed above, when it has come on record that empowered officer has not informed the accused about the existence of his right that if he so requires, he shall be searched before the Gazetted Officer or a Magistrate especially when it has come on record that empowered officer was suspecting that accused was carrying some contraband with him, the provisions of Section 50 of the Act are certainly attracted in this case and as both the Investigator and the official witness PW-1 Head Constable Kapil Kumar have categorically admitted in their statements that no option was given to the accused to be searched before any Gazetted Officer or Magistrate nor he was informed about the existence of his right, the search of accused was carried out in violation of provisions of Section 50 and the entire case of prosecution is shrouded under the shadow of doubt, the benefit deserves to be given to the accused. Thus, while giving benefit of doubt to the accused, point No.1 is answered in the negative.”

20. We have scanned the entire evidence on record carefully and after going through the same, it has become clear that the charas in question was recovered from the rucksack, which was being carried by the accused on his right shoulder. Admittedly, the charas was not recovered from the personal search of the accused, therefore, Section 50 of NDPS Act is not applicable in the present case and the learned trial Court had erred in law in arriving at the conclusion that since the prosecution has failed to comply with the provisions of Section 50 of NDPS Act, the entire case of the prosecution is shrouded with shadow of doubt. PW-2 ASI Bala Ram, Investigating Officer, specifically deposed that firstly during search of the bag, the charas was recovered and on completion of the investigation, the accused was arrested, vide memo Ext.PW1/C and thereafter personal search of the accused was conducted regarding which, memo Ext. PW1/B was also prepared. Thus, from the perusal of the evidence on record reveals that personal search of the accused was conducted after recovery of the contraband which was being carried by the accused on his shoulder and after the arrest of the accused.

21. Learned counsel for the respondent contended that there is violation of Section 50 of NDPS Act as the accused was neither apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer nor his search was conducted in their presence. He further contended that the Investigating Officer and other police officials have not given their personal search to the accused before conducting his personal search. However, this contention of the learned counsel for the appellant is misconceived as it was a case of chance recovery and the contraband was recovered from the rucksack, which the accused was carrying with him on his right shoulder and not from his personal search.

22. In the case of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746, 500 grams of charas was recovered from the bag carried by an accused on his shoulder and it was observed by the Hon’ble Apex Court as under:

"15.The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its noncompliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or noncompliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P. [(2003) 7 SCC 465 : 2003 SCC (Cri) 1664 : 2003 Cri LJ 3868] The Court has observed: (SCC p. 471, para 16)

"16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra [(1999) 8 SCC 257 : 1999 SCC (Cri) 1422] , State of Punjab v. Baldev Singh [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and Gurbax Singh v. State of Haryana [(2001) 3 SCC 28 : 2001 SCC (Cri) 426] ).The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh’s case. Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance."

23. In State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350, a three Judges Bench of Hon’ble Apex Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container, etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the NDPS Act.

24. Thus, the aforesaid decision of the Hon’ble Supreme Court shows that the provisions of Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage, which he may be carrying. In other words, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application.

25. In the instant case, as observed earlier, the perusal of the evidence on record reveals that the personal search of the accused was conducted after the search of the rucksack and recovery of the contraband. PW-2 specifically deposed that the personal search of the accused was conducted after the recovery of the contraband and after his arrest. The prosecution evidence nowhere suggests that the personal search of the accused was conducted prior to recovery of the contraband. The perusal of memo Ext. PW1/B shows that the personal search of the accused was conducted after recovery of the contraband and after his arrest during his Jamatalashi as before preparing the arrest memo, the Investigating Officer was required to make personal search of the accused. The case is of a chance recovery and the contraband was recovered from the his rucksack (pithu bag), which was being carried by the accused on his right shoulder and his personal search did not lead to any recovery, as such there is no violation of Section 50 of NDPS Act as contended by the learned counsel for the respondent.

26. The link evidence in the case is also complete. From perusal of the evidence on record, it has become clear that after recovery of the contraband from the exclusive and conscious possession of the accused, the same was sealed in a cloth parcel with six seals of seal impression ‘V’. After taking sample of impression of seal, case property was seized through seizure memo Ext. PW1/A and thereafter the case property alongwith other documents was handed over to SI/SHO Gambhir Chand for re-sealing, who appeared in the witness-box as PW-6 and deposed that on 06.10.2012 at about 7.40 pm, ASI Bala Ram personally handed over one cloth parcel containing 840 grams charas sealed with six seals of seal ‘V’ alongwith sample of seal, NCB-I form to him for re-sealing and he re-sealed the said parcel with three seals of seal impression ‘M’, sample of seal was taken separately and after filling the relevant columns of NCB form, he deposited the case property alongwith NCB form, sample of seal with MHC Ram Krishan. PW-3 HC Ram Krishan deposed that on 08.10.2012, he sent the sealed parcel alongwith sample seals ‘V’ and ‘M’ and NCB form in triplicate, copy of FIR, copy of seizure memo and docket through Constable Tarsem Lal for the deposit of the same at FSL, Junga. As per SFSL report Ext. PW2/G, the exhibit which was sent to the laboratory for analysis was the extract of cannabis and sample of charas.

27. Learned counsel for the respondent next contended that there are material contradictions in the statements of the prosecution witnesses about the manner of conducting the search and recovery, as such, the prosecution story is doubtful regarding the recovery of charas in question. He submitted that in his cross examination, PW-1 Head Constable Kapil Kumar firstly stated that the accused was arrested in his presence but he again stated that he left the spot even before the arrest of the accused by the Investigating Officer, whereas, arrest memo Ext.PW-1/C indicates that the accused was arrested by the police at 4:45 pm, which fact has also been endorsed by PW-2 ASI Bala Ram, who deposed that the accused was arrested before sending rukka Ext.PW-1/D to the Police Station, which falsifies the statement of PW-1 Head Constable Kapil Kumar, who firstly stated that accused was arrested in his presence and lateron stated that accused was not arrested in his presence. We have gone through the contradictions as pointed out by learned counsel for the respondent, however, these are only minor contradictions which do not go to the heart of the matter and shake the basic version of the prosecution case. The statements of the prosecution witnesses with respect to search and recovery of the charas in question from the possession of the accused are confidence inspiring. Their statements cannot be discredited and no benefit can be derived by the accused from the minor contradictions as pointed out by the learned counsel for the respondent.

28. Section 54 of the NDPS Act creates a presumption that the accused is guilty of an offence, if he fails to satisfactorily account for possession of contraband. Section 35 states that in a prosecution under the NDPS Act, it would be presumed that the accused has the culpable mental state necessary for the offence. It is needless to point out that before drawing presumption under Section 54 and Section 35 of the NDPS Act, the prosecution must establish a prima-facie case and which the accused is permitted to rebut. In the instant case, the prosecution has discharged its initial burden whereas the accused has not rebutted this statutory presumption. It is not the case of the accused that the said bag did not belong to him. Rather, from the front pocket of the bag, which was being carried by the accused, his voter ID was recovered, which also established that the bag in fact belonged to the accused.

29. The Apex Court has time and again held that once a physical possession of the contraband by the accused has been established, the onus is upon the accused to prove that it was not a conscious possession. In Madan Lal and another Vs. State of Himachal Pradesh, (2003) 7 SCC 465, it has been observed that once possession is established, the person, who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Relevant portion of the said judgment reads as under:-

“26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.”

30. In the case on hand, the accused was found to be in exclusive and conscious possession of 840 grams of charas. Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act would come into play and the onus shifts on the accused to prove that he was not in conscious possession of the contraband. However the accused has failed to discharge his burden in the manner known to law. In his statement under Section 313 of Cr.P.C., the accused has only pleaded that a false case has been lodged against him but he had not stated anything as to why would the police lodge the false case against him. It is not the case of the accused that the police officials had any previous enmity with him. Moreover, it is not possible to accept the contention of the accused that he is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the accused. Thus the accused has failed to rebut the presumption that the charas was not recovered from his exclusive and conscious possession.

31. Hence, in view of the detailed discussion made hereinabove, the appeal is allowed and the impugned judgment dated 01.07.2014 passed by the learned Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh, in Sessions Trial No.17 of 2014 (2013), which suffers from patent illegality, perversity and against the settled position of law, is quashed and set aside. Consequently, the accused is convicted for commission of the offence punishable under Section 20 of NDPS Act. Let the accused/respondent appear before this Court on 08.11.2024 for hearing on quantum of sentence.

Appeal allowed.

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