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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1110 OF 2016

KHEKH RAM                      …APPELLANT

VERSUS

STATE OF H.P.           …RESPONDENT

J U D G M E N T

AMITAVA ROY, J.

1. The  instant  appeal  mounts  a  challenge  to  the

judgment and orders dated 19.09.2016 and 22.09.2016 of

the High Court of Himachal Pradesh at Shimla rendered in

Criminal  Appeal  No.  218  of  2011  thereby  reversing  the

verdict dated 29.12.2010 of acquittal of the appellant by the

Trial Court from the charge under Sections 20 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short, hereafter referred to as the “Act”). By the impugned

decision, the appellant thus stand convicted under the above

provisions of  the Act  and has been sentenced to  undergo

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rigorous imprisonment for 20 years and to pay a fine of Rs. 2

lakhs, in default to suffer rigorous imprisonment for a period

of one year.

2. We have heard Mr. Ajay Marwah, learned counsel for

the  appellant  and  Mr.  Varinder  Kumar  Sharma,  learned

counsel for the respondent/State.

3. The  skeletal  facts  portraying  the  prosecution  case

originate from the wee hours of 20.10.2009, precisely 4 a.m

when the police patrol party led by Inspector/SHO Sanjeev

Chauhan    (PW-8), while located at a place known as Kelti

Dhar  noticed  an  Alto  vehicle  bearing  registration

No.HP-01K-0805  moving  towards  them  from  Shallang

onward to Kullu. On seeing the patrol party, the driver of the

vehicle  stopped  it,  alighted  therefrom and  made  good  his

escape in the adjacent apple orchard so much so that  in

spite  of  vigorous  search  operations  by  using  the  search

lights,  he  could  not  be  apprehended.  As  the  place  was

secluded, the investigating officer, PW-8 directed HHC-Hira

Singh,  a  member  of  the  team  to  scout  for  independent

witnesses to participate in the imminent search operations.

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The said constable however returned after 15-20 minutes to

disclose that neither any independent witness was available

at that hour nor any passerby was noticeable. At this, the

investigating  officer  associated  HHC-Kashmi  Ram  and

HHC-Hira Singh as witnesses and initiated a search of the

vehicle in their presence. In course of the search, a black

and red bag was found by the side of the seat of the driver

and when opened the search party found black substance

which prima facie by its smell appeared to be charas. The

search team also retrieved the registration certificate of the

vehicle which was in the name of Ses Ram son of Shri Devi

Singh as well as a bank passbook of Himachal Gramin Bank

issued in the name of Khekh Ram son of Chuhru Ram, R/o

village  Gramang,  PO  –  Shallang  showing  a  deposit  of

Rs.1,79,029/- as on 03.10.2009. The contraband on being

weighed was found to be of 14.750 kgs. The bag containing

the contraband was put in a cloth parcel and sealed with

seal of impression “T”.

4. In the report under Section 173 Cr.P.C. the driver of

the vehicle who fled was described to be stoutly built with

height of 5’5” and aged about 30-35 years and was referred

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to as Khekh Ram. After the completion of seizure, ruqqa was

sent to the police station through HHC-Hira Singh for the

registration  thereof.  In  course  of  the  investigation  on

20.10.2009,  the  owner  of  the  vehicle  Ses  Ram  was

summoned who disclosed that he had sold the vehicle to one

Govind Singh on 03.08.2009. Govind Singh was intercepted

on 20.10.2009 who in turn disclosed that on 19.10.2009 the

vehicle was taken by Khekh Ram for some personal work.

Subsequent thereto, the appellant, Khekh Ram was arrested

on 21.10.2009 while he was driving another vehicle. Govind

Singh  was  later  on  arrested  on  06.03.2010  and  on

completion of  the investigation following the receipt of  the

report of the chemical analysis, proceedings under Sections

20 and 29 of the Act was instituted against the appellant

and Govind Singh. The accused persons having denied the

charge, they were put to trial.

5. The  prosecution  examined  in  all  eight  witnesses

including  the  investigating  officer.  In  course  of  their

statements  recorded  under  Section  313  Cr.P.C.,  the

appellant  and  the  co-accused  stood  by  the  denial  of  the

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charge  and  alleged  false  implication.  No  defence  evidence

was however adduced.

6. The  Trial  Court  on  an  analysis  of  the  evidence  on

record acquitted both the accused persons. On appeal being

filed  by  the  State,  as  stated  hereinabove,  the  High Court

reversed  the  acquittal  qua  the  appellant  only  while

maintaining the exoneration of the co-accused Govind Singh.

7. The impugned judgment being one of reversal altering

the order of acquittal into conviction on the basis of common

set  of  evidence,  expedient  it  would  be  to  briefly  note  the

findings  of  the  two  forums  before  adverting  to  the  rival

assertions  made  in  this  appeal.  Noticeably,  in  essence,

whereas it was canvassed on behalf of the prosecution that

the materials on record amply establish the charge against

the accused persons, it was urged on behalf of the defence

that there was no evidence worth the name either to identify

the appellant Khekh Ram to be the driver of the offending

vehicle  who fled  on seeing the  police  patrol  party  or  that

either  or  both  the  accused  persons  were  in  conscious

possession of the contraband claim to be seized therefrom.

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8. The Trial Court in assessing the evidence adduced by

the prosecution was cognizant of the legal proposition that

graver  the  offence  and  severer  the  punishment,  greater

ought  to  be  the  care  taken  to  ensure  that  all  statutory

safeguards have been scrupulously adhered to and that a

heightened  scrutiny  of  such  compliance  thereof  is

warranted.  On  the  aspect  of  identification,  it  dealt  in

particular with the testimony of HHC-Hira Singh, PW-1 who

though  in  his  examination-in-chief  stated  that  he  could

recognize the person fleeing from the vehicle, in the search

light as Khekh Ram, he admitted in his cross-examination

that prior to the incident, the appellant was not personally

known to him and that he had seen him on that occasion

from a distance of 40 to 50 yards. It also recorded that the

investigating officer, PW-8 had not stated in his deposition

that the absconding person was Khekh Ram and that he had

been  identified  to  be  so  by  PW-1,  HHC-Hira  Singh  and

another member of the raiding party, namely, HHC-Kashmi

Ram. The investigating officer deposed that the co-accused

Govind  Singh  had  disclosed  on  interrogation,  that  Khekh

Ram had taken his vehicle for bringing his wife from Anni.

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The admission of the investigating officer, PW-8 that he did

not record in the ruqqa the fact that the driver of the vehicle

carrying  the  contraband  was  facing  him  and  that  he

accordingly could recognize him was noted. The Trial Court

thus  discarded  the  evidence  of  these  two  witnesses  to

connect  the  appellant  with  the  offence.  It  was  also

mentioned  by  the  Trial  Court  that  if  the  seizure  memo,

Ext.PW1/A in fact had been prepared by the investigating

officer  at the spot,  the same ought to have contained the

above facts bearing on the identification of the appellant and

that absence thereof and the omission to refer the name of

the appellant in the ruqqa Ext.PW8/A and the special report

Ext.PW3/A did bely as well the claim of his identification by

the police party. It was of the view that as evident from the

ruqqa Ext.PW8/A, the name of the appellant got mentioned

therein  on  the  basis  of  his  passbook  recovered  from the

vehicle. In the face of these anomalies, the Trial Court also

concluded that the recovery memo Ext.PW1/A had not been

prepared at the spot as claimed by the investigating officer.

It  also  observed  in  this  regard  that  in  the  special  report

Ext.PW3/A,  the  facts  mentioned  in  the  recovery  memo

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Ext.PW1/A were  not  referred  to  and  held  that  either  the

identification  of  the  appellant  was  not  available  to  the

investigating agency or was subsequently introduced by the

investigating  officer  in  order  to  connect  him  with  the

commission of the offence. The Trial Court recorded as well

that no test identification parade had been conducted qua

the appellant and also marked the absence of any claim by

PW-1, HHC-Hira Singh that on the arrest of the appellant on

21.10.2009, he had identified him as the person who had

fled  from  the  spot.  It  discarded  as  well  the  NCB  Form,

Ext.PW4/E  (in  which  the  name  of  the  appellant  was

mentioned),  on  the  ground  that  as  this  document  was

supposed to be prepared prior in point of time to ruqqa, it

was inexplicable as to why then the name of the appellant

was not mentioned in the ruqqa which was sent to the police

for  registration  of  the  case.  According  to  the  Trial  Court,

there was also no endorsement with regard to registration of

the FIR on the ruqqa Ext.PW8/A.  The Trial  Court  viewed

with disapproval as well, the photographs Ex. PW-8/B-1 to

Ex.  PW-8/B-8  claimed  to  have  been  taken  by  the

investigating officer with his digital camera, of the car and

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the seized article, as some of those did not bear any date and

the rest were of 05.01.2008 at 7.06 a.m., different from the

date  of  seizure  of  the  contraband  i.e.  20.10.2009.  In  the

estimate of  the Trial  Court,  these photographs thus could

not  be  related  to  the  seizure  claimed.  Vis-à-vis  the

co-accused Govind Singh, the Trial Court noticed that there

was no incriminating material  to prove his involvement in

the commission of the offence. Consequently, it acquitted the

appellant and the co-accused of the charge.

9. The  High  Court  however  on  a  reappraisal  of  the

evidence on record laid emphasis on the testimony of PW-1,

HHC-Hira  Singh  in  the  matter  of  identification  of  the

appellant as the person who fled from the scene on seeing

the patrol party.  Decisive weight was also extended to the

recovery of the passbook of the appellant from the chamber

of the dashboard of the vehicle. It recorded that the name of

the appellant was mentioned both in the ruqqa Ex. PW-8/A

and the NCB form which according to it had been missed by

the Trial Court. The High Court noted that the appellant had

failed  to  offer  any  explanation  about  the  presence  of  his

passbook  in  the  offending  vehicle  and  by  observing  that

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there was no reason for the prosecution to falsely implicate

him,  returned  a  finding  that  the  charge  against  him had

been  proved  beyond  all  reasonable  doubt.  It  however

reiterated that the prosecution had failed to prove the case

against  the  co-accused  Govind  Singh  and  affirmed  his

acquittal. The appeal of the State was partly allowed and the

appellant was convicted under Section 20 of the Act and was

sentenced as mentioned hereinabove.

10. Before we move on to the analysis of the facts and the

evidence on records apt it  would be to deal with the rival

contentions.

11. Mr. Ajay Marwah, learned counsel for the appellant

has insistently  argued that  the prosecution having utterly

failed to establish the identity of the appellant with the driver

of the vehicle from which the contraband had been allegedly

seized, the view taken by the Trial Court on the basis of the

evidence  both  oral  and  documentary  being  flawless  and

reasonable, the High Court had erred in law and on facts in

reversing  the  same  on  grounds  patently  untenable.

According to the learned counsel, as neither the evidence of

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PW-1  and/or  PW-8  nor  any  of  the  contemporaneous

documents  claimed  to  have  been  prepared  in  connection

with the search and seizure does establish in any manner

the complicity of the appellant in the offence, the conviction

as recorded by the High Court if allowed to stand would be a

travesty of justice. Mr. Marwah urged that in absence of any

clinching  evidence  with  regard  to  the  identification  of  the

appellant as the driver of the vehicle who had fled on seeing

the patrol party, the recovery of his passbook from the car

per se cannot prove beyond reasonable doubt his culpability.

The  learned  counsel  maintained  that  an  overall

consideration of the oral and documentary evidence adduced

by  the  prosecution  would  unerringly  indicate  that  the

documents with regard to search and seizure had not been

prepared at the spot but subsequently,  to falsely foist  the

prosecution  on  the  appellant  only  on  the  basis  of  his

passbook and  no  other  evidence  whatsoever.  Mr.  Marwah

argued that the photographs relied upon by the prosecution

as  contemporaneous  documents  in  support  of  the  search

and seizure also bely the prosecution case as none of those,

though clicked with a digital camera, depict the date thereof

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i.e.  20.10.2009  and  therefore  cannot  by  any  stretch  of

imagination be related thereto. The learned counsel argued

that  as  conscious  possession  of  the  contraband  is  an

indispensable prerequisite for conviction of the appellant on

the charge framed against him, absence of his identification

is  destructive  of  the  substratum of  the  prosecution  case.

According to him, as the view taken by the Trial Court is not

only formidably plausible but also irrefutably reasonable, the

High  Court  had  grossly  erred  in  reversing  the  same  by

merely  substituting  its  view,  unsupported  by  the  material

available. In buttressal of his pleas, the learned counsel has

placed reliance on the decisions of this Court in Prem Singh

vs.  State of Haryana1, Krishan Chand vs.  State of H.P.2

and Mahinder Singh vs. State of Himachal Pradesh3 .  

12. Per contra, it has been assiduously argued on behalf

of  the  respondent/State  that  the  identification  of  the

appellant as the driver of the vehicle carrying the contraband

having been established beyond doubt and the search and

seizure of the commodity having been undertaken strictly in

1  (2013) 14 SCC 88 2  2017(6) SCALE 468 3  Criminal Appeal No.1286 of 2017 decided on 31.7.2017.

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accordance with the prescriptions of law, his conviction is

unassailable  and  ought  to  be  affirmed.  According  to  the

learned counsel, the inferences drawn by the Trial Court are

not borne out by the materials on record and therefore have

been  rightly  repudiated  in  the  impugned  judgment  and

order.

13. It  would  next  be  expedient  to  briefly  deal  with  the

authorities  cited  at  the  Bar  to  recapitulate  the  judicial

enunciation of the scope of an Appellate Court to reverse an

order of  acquittal  in a criminal trial.  In Prem Singh1, the

challenge  was  to  the  judgment  of  reversal  of  the

jurisdictional  High  Court  whereby  the  appellant  was

convicted along with the co-accused Vishwa Bandhu under

Section 302 read with Section 34 of the Indian Penal Code

(for short hereafter referred to as the “IPC”) and sentenced to

undergo rigorous imprisonment for life.  The appellant and

the aforenamed co-accused had been acquitted by the Trial

Court. All the seven accused persons were acquitted of the

charge of murder of Siri Krishan who as per the prosecution

case was on 26.11.1993 at  about  6.30/6.45 a.m.  gunned

down by some persons while he was on his morning walk.

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The incident  was  reported  to  the  brother  of  the  deceased

PW-16,  Sohan  Lal  by  one  Vijay  Kumar,  a  neighbour.  On

receipt  of  the  information,  PW-16  along  with  his  nephew

Navneet Kumar and Vijay Kumar went to the spot and found

the deceased lying in a pool of  blood. He was removed in

injured condition to the Government Hospital where he was

declared to have been brought dead.  

The  FIR  was  registered  and  on  the  completion  of  the

investigation,  charge-sheet  was  laid  against  the  appellant

and  others  under  Sections  120-B,  148,  302  read  with

Section 149 IPC and Section 25 of the Arms Act, 1959. The

investigation amongst others led to the recovery of firearms

on  the  disclosure  of  the  appellant  and  co-accused  Ballu.

Further, several empty cartridges and lead bullets were also

recovered from the place of occurrence. In the postmortem,

three  bullets  were  extricated  from  the  dead  body.  The

investigating agency forwarded the firearms recovered along

with the bullets retrieved from the dead body for forensic

examination.  Charge  was  framed  against  the  accused

persons on the provisions of law under which charge-sheet

had been submitted. At the end of the trial however, all the

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accused persons were acquitted. In the appeal by the State,

the High Court, as noted hereinabove, reversed the acquittal

qua the appellant and the co-accused Vishwa Bandhu.  

This Court while reflecting on the scope of the power of the

High  Court  under  Section  378  of  the  Code  of  Criminal

Procedure,  1973  (for  short  hereafter  referred  to  as  the

“Code”)  in  dealing  with  an  order  of  acquittal  referred

amongst  others  to  an  extract  from  its  earlier  verdict  in

Murugesan and others vs. State4. The legal proposition as

enunciated in paragraph 21 of  the said ruling,  as  quoted

hereunder, was noted:

“21. A concise statement of the law on the issue that had emerged after over half a century of evo- lution since Sheo Swarup is to be found in para 42 of the Report in Chandrappa v. State of Kar- nataka. The same may, therefore, be usefully no- ticed below: (SCC p.432)

“42. From the above decisions, in our consid- ered view, the following general principles re- garding  powers  of  the  appellate  court  while dealing with an appeal against an order of ac- quittal emerge:

(1) An appellate court has full power to  review,  re-appreciate  and  recon- sider  the  evidence  upon  which  the order of acquittal is founded.

4  (2012) 10 SCC 383

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(2) The Code of Criminal Procedure, 1973 puts  no  limitation,  restriction or  condition  on  exercise  of  such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3)  Various  expressions,  such  as, ‘substantial and compelling reasons’, ‘good  and  sufficient  grounds’,  ‘very strong  circumstances’,  ‘distorted conclusions’,  ‘glaring  mistakes’,  etc. are not intended to curtail extensive powers  of  an  appellate  court  in  an appeal  against  acquittal.  Such phraseologies are more in the nature of ‘flourishes of language’ to empha- sise  the  reluctance  of  an  appellate court to interfere with acquittal than to curtail  the power of  the court to review the evidence and to come to its own conclusion.

(4)  An  appellate  court,  however, must  bear  in  mind that  in  case of acquittal,  there is  double presump- tion in favour of the accused. Firstly, the  presumption  of  innocence  is available  to  him  under  the  funda- mental  principle  of  criminal  ju- risprudence that every person shall be presumed to be innocent unless he is  proved guilty by a competent court of law. Secondly, the accused having  secured  his  acquittal,  the presumption of his innocence is fur- ther  reinforced,  reaffirmed  and strengthened by the trial court.

(5)  If two reasonable conclusions are possible on the basis of the evidence

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on record, the appellate court should not  disturb  the  finding  of  acquittal recorded by the trial court.”

(Emphasis supplied)

In  the  above  jurisprudential  backdrop,  this  Court  next

analyzed the evidence adduced by the prosecution and the

scrutiny thereof by the Trial Court in recording acquittal of

the appellant and the co-accused. The fatal anomalies and

deficiencies in the prosecution case, as noticed, by the Trial

Court were enumerated thus:

(a) Vijay  Kumar who had reported about the incident  to  PW-16,  Sohan Lal  had not  been

examined by the prosecution,  though it  was

its case that Vijay Kumar had witnessed the

occurrence.

(b) Though the prosecution tried to justify the non-examination  of  Vijay  Kumar  by

contending that it was his daughter who had

witnessed the occurrence,  even she was not

adduced as a witness.  

(c) The  testimony  of  PW-11,  Sohan  Lal  and PW-12,  Bharat  Lal  were  not  worthy  of  any

credence as they conceded that they had not

received any summons to appear as witness

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and in fact had appeared at the request of the

son of the deceased.

(d) PW-11, Sohan Lal was an employee of the brother of PW-13, Smt. Pushpa Devi, who was

the wife of the deceased.

(e) Though  PW-11  and  PW-12  claimed  that they knew the deceased from before and that

the house of the deceased was very near to the

place of occurrence, they did neither visit the

house of the deceased nor inform the family

members of the deceased nor did they report

the incident to the police.

(f)They instead roamed about  aimlessly  in  the streets of Karnal until they came to the place

of  occurrence  when  their  statements  were

recorded by the police.

(g) The recovery of weapons at the instance of the appellant and the co-accused Ballu was

highly doubtful.  

(h) As per the report of the Forensic Science Laboratory,  Madhuban,  no  nexus  could  be

established  between  the  bullets  recovered

from the dead body and the firearms allegedly

recovered.

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(i)PW-11 and PW-12 had identified the accused including the appellant for the first time in

Court.  

(j)The evidence of PW-11 and PW-12 was full of significant  discrepancies  with  regard  to  the

identity  of  the  accused  and  the  roles

attributed to them in the perpetration of the

crime.  

In  the  above  overwhelming  factual  premise,  this  Court

concluded that the finding of innocence recorded by Trial

Court was a reasonably possible view taken on the basis of

the evidence and materials  on record and thus the High

Court ought not to have disturbed the same even if, on a

re-appreciation  of  the  evidence  it  was  inclined  to  take  a

different  view.  This  Court  reiterated  the  oft  quoted

fundamental proposition that so long the view taken by the

Trial Court in awarding acquittal on a criminal charge was

a possible one, the exercise of the appellate power of the

High Court under Section 378 of the Code would remain

circumscribed  by  the  well-settled  parameters  noticed

hereinabove. The conviction of the appellant was set aside

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in the attendant facts and circumstances and his acquittal

was restored.  

14. This Court in  Krishan Chand2, was seized with the

impugnment of the judgment of the territorial High Court

convicting the appellant under Section 30 of the Narcotic

Drugs and Psychotropic Substances,  Act,  1985 (for  short

hereafter referred to as the “NDPS Act”) and sentencing him

to undergo rigorous imprisonment for a period of 20 years

and to pay fine of Rs. 2,00,000/- with default stipulation,

by reversing the acquittal recorded by the Trial Court.  

The  prosecution  case,  as  noted  in  brief  was  that  on

27.11.2010 at about 5 a.m. while the patrol party including

the complainant-SHO Gurbachan Singh, PW-6 was on duty

at the Patarna Bridge, a person was seen coming with a

rucksack on his back. On seeing the police party, he tried

to flee but was apprehended and he disclosed his name to

be Krishan Chand. His bag was searched which revealed

some black substance which appeared to be charas. The

contraband on being weighed was found to be of 7 kgs. It

was seized and sealed. The appellant was arrested. Ruqqa

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was prepared and was sent to the police station and after

obtaining the report from the Forensic Science Laboratory,

the appellant was sent up for trial. Prosecution examined

six witnesses. In course of his statement under Section 313

Cr.P.C. the appellant denied recovery of charas from him.

He further claimed to be innocent and alleged that he had

been falsely  implicated.  He  also examined two witnesses

Narain Singh and Govind Singh in defence.  

The  Trial  Court  acquitted  the  appellant  holding that  the

prosecution  had  failed  to  prove  the  charge  beyond

reasonable doubt. In the appeal, filed by the State, the High

Court convicted and sentenced the appellant as above.

The principal plea of  the appellant before this Court was

that the High Court had failed to appreciate that in absence

of  any  independent  witness,  the  evidence  of  the  police

witnesses ought to have been scrutinized with greater care

and as the police  witnesses had contradicted themselves

about  the  authorship  of  the  seizure  memo,  the  arrest

memo, consent memo and the NCB, no interference with

the  acquittal  ought  to  have  been made.  The  evidence  of

22

PW-4 and PW-6 was referred to for reinforcing the above

assertion.

This  Court  noted  that  the  Trial  Court  in  acquitting  the

appellant  had laid  emphasis  on two aspects,  namely,  no

independent witness was examined and fatal contradictions

in the testimonies of PW-4 and PW-6. This Court, analyzing

the testimony of  PW-4, Umesh Kumar recorded that this

witness had stated that as the place of the occurrence was

isolated having no habitation nearby, he was associated in

the  investigation  by    PW-6,  Gurbachan  (complainant)

whereafter the person as well as the bag of the appellant

was searched after making him aware of his right to have

the  said  exercise  undertaken  before  a  Magistrate  or  a

Gazetted Officer.  This witness affirmed that on searching

the  bag  of  the  appellant,  charas  weighing  7  kg.  was

detected which was seized, parceled and sealed whereafter

NCB  form  was  filled  up,  sample  seal  was  taken  in  a

separate  piece  of  cloth  and  the  seized  contraband  was

taken in possession and the related memo was signed by

him as well as Head Constable, Tain Singh. This witness

disclosed further that the party was at the spot for about 1

23

hour 40 minutes and it was dark at the relevant point of

time. Further they did neither have any search light nor the

lights of  the vehicle had been switched on. He expressed

ignorance as to in whose handwriting the consent memo

was  written.  He  however  stated  that  the  search  memo,

seizure memo, arrest memo, sample seal and the NCB Form

were all  in the hand of  SHO, Gurbachan Singh.  He also

stated that he was not aware as to who scribed the personal

search memo of the accused.

While appraising the testimony of PW-6 this Court noticed

in  particular  that  this  witness  did  not  remember  the

duration of the stay of the police party at the spot before

the accused was apprehended. This witness however was

clear in deposing that it was not night time and that the

accused could be seen from a distance of  10 meters.  He

contradicted PW-4 by stating that the consent memo, memo

of search, seizure memo, noting on the sample seal, memo

of personal search was not in his hands but was got written

by him from one of the members of the police party under

his dictation.

24

This Court noticed the contradiction on the above aspects

in the evidence of PW-4 and PW-6 and observed that those

could not be glossed over as minor, more particularly in the

background of the allegation of false implication made by

the  accused/appellant.  It  held  the  view,  that  from  the

evidence  it  appeared  that  the  place  where  the

accused/appellant  had  been  apprehended  was  not  an

isolated  one  as  one  house  of  Govind  Singh,  DW-2  was

located nearby. This Court thus rejected the version of the

prosecution  that  independent  witnesses  could  not  be

associated as the place was desolate. In all, in view of the

above inconsistencies  and the deficiencies  in  prosecution

evidence,  this  Court  held  that  the  possession  of  the

contraband by the accused/appellant and seizure thereof

from him was doubtful. It noted as well that though there

was a reference of recovery of knife at the time of opening of

the bag allegedly carried by the accused/appellant, it did

not find place in the seizure memo which further created

doubt in the prosecution case. The conviction was set aside

holding that the High Court had failed to take note of the

contradictions in the evidence in the proper perspective and

25

had  failed  thereby  to  appreciate  that  harsher  is  the

punishment,  the  stricter  ought  to  be  the  proof  of  the

charge.

15. The elaboration of the facts in the decisions cited at

the Bar has been to underline the factual setting in which

reversal of the orders of acquittal had been interfered with by

this Court. Though it is no longer res integra that an order of

acquittal,  if  appealed  against,  ought  not  to  be  lightly

interfered with, it is trite as well that the Appellate Court is

fully empowered to review, re-appreciate and reconsider the

evidence on record and to reach its own conclusions both on

questions of fact and on law. As a corollary,  the Appellate

Court  would  be  within  its  jurisdiction  and  authority  to

dislodge  an  acquittal  on  sound,  cogent  and  persuasive

reasons based on the recorded facts and the law applicable.

If only when the view taken by the Trial Court in ordering

acquittal is an equally plausible and reasonable one that the

Appellate  Court  would  not  readily  substitute  the  same by

another view available to it, on its independent appraisal of

the materials on record. This legally acknowledged restraint

on the power of the Appellate Court would get attracted only

26

if the two views are equally plausible and reasonable and not

otherwise. If the view taken by the Trial Court is a possible

but not a reasonable one when tested on the evidence on

record and the legal principles applied, unquestionably it can

and ought to be displaced by a plausible and reasonable view

by the Appellate Court in furtherance of the ultimate cause

of justice. Though no innocent ought to be punished, it is

equally imperative that a guilty ought not to be let of casually

lest justice is a casualty.

16. Having regard to the two irreconcilable views adopted

by  the  Courts  below,  it  is  felt  expedient  to  revisit  the

essential aspects of the evidence bearing in particular on the

identification of the appellant as the possessor and carrier of

the contraband. The FIR registered on 20.10.2009 discloses

PW-8,  Inspector  Sanjeev  Chauhan  to  be  the

complainant/informant.  It  sets  out  that  on 20.10.2009  at

about 4 a.m.  the vehicle  HP-01K-0805 which was coming

from  Shallang  was  signalled  to  stop  by  the  patrol  party,

whereupon  the  driver  thereof  stopped  the  car,  alighted

therefrom and disappeared in the adjoining apple  orchard

and could not be apprehended in spite of being chased with

27

search lights. The FIR discloses that in spite of an endeavour

made no independent witness could be secured and that on

the search of the vehicle a bag of red and black colour was

recovered containing 14 kg. 750 grams of charas which was

seized and sealed in presence of the members of the patrol

team,  namely,  HHC-Kashmi  Ram  and  HHC-Hira  Singh

(PW-1). That in course of the search a registration certificate

in the name of Ses Ram s/o Devi Ram and a passbook of

Himachal Gramin Bank, Kullu in the name of the appellant

was recovered was stated as well. It was mentioned that the

driver of the vehicle, who had run away after stopping the

same, was well built with a height of 5’5” and aged about

30-35 years and the person was named as Khekh Ram.  

17. PW-1,  HHC-Hira  Singh,  who  was  a  member  of  the

patrol  as  well  as  search team substantially  reiterated  the

facts leading to the spotting of the vehicle, the escape of the

driver, recovery of the contraband and the seizure thereof.

Qua the aspect of identification, this witness stated that at

the time of his fleeing from the spot, he could recognize him

in the search light as Khekh Ram and also located him in

the Court. In cross-examination however this witness stated

28

that when the search light was focused on the person, the

police party noticed the back portion of his and he claimed

further to have seen his side face from a distance of 40 to 50

yards.  He  admitted  as  well  that  Khekh  Ram  was  not

personally known to him before the incident. This witness

testified that photographs of the bag lying on the seat of the

vehicle were taken at the spot. He denied the suggestion that

Khekh  Ram  was  lifted  from  his  house  in  the  night  of

20.10.2009 merely on the basis of suspicion and that he was

falsely implicated in the case.  

18. PW-2, Ses Ram deposed that he was the owner of the

Alto car and had on 13.08.2009 sold the same to Govind

Singh.  He  clarified  that  though  the  sale  transaction  had

occurred, as the vehicle had been privately financed and the

loan was not repaid, the same could not be transferred in

the  name  of  Govind  Singh.  This  witness  in  his

cross-examination  stated  that  after  the  purchase  of  the

vehicle  by Govind Singh,  he had employed a Nepali,  as a

driver thereof.

29

19. PW-8, Inspector Sanjeev Chauhan, the Investigating

Officer, on oath reiterated his version in the FIR and stated

in  particular  that  after  packing  the  bag  containing  the

contraband with a cloth, he sealed the same with nine seals

of “T” and thereafter filled the NCB forms, amongst others

Ext.PW4/E. He drew up also the seizure memo of the car,

the keys, the registration certificate, the passbook and the

charas  vide  Ext.PW1/A.  He  stated  to  have  prepared  the

ruqqa Ext.PW8/A and handed over the same to HHC-Hira

Singh,  PW-1  to  take  it  to  the  police  station,  Kullu  for

registration of  the FIR.  He claimed that  photographs were

also taken by him of the seized commodity in the form of

Ext.PW8/B-1 to Ext.PW8/B-10 with his digital camera. He

stated to have completed the proceedings at the spot with

the help of search lights and the headlights of the vehicles

whereafter he directed ASI Ratan Lal to locate Ses Ram and

to arrest Khekh Ram. He deposed to have summoned Ses

Ram and Govind Singh to the police station and after the

disclosures made by them about the sale of the vehicle and

the temporary entrustment by Govind Singh of the vehicle to

Khekh Ram, he arrested the appellant on 21.10.2009 at 4

30

p.m.  He  stated  that  after  the  arrest  of  the  appellant,  he

prepared  a  special  report,  Ext.PW-3/A.  In  his

examination-in-chief though this witness had reiterated his

narration in the FIR that the driver of the Alto car on being

stopped, jumped therefrom and fled, he did not claim to have

identified him to be the appellant. In his cross-examination

he  however  testified  that  when  he  came  down  from  the

vehicle, the driver of the Alto vehicle was facing him and he

could thus recognize him. He denied the suggestion that he

had not mentioned in the ruqqa that he could see the face of

Khekh  Ram.  As  the  identification  of  the  appellant  is  of

determinative  significance,  the  instant  scrutiny  of  the

evidence has been, for obvious reasons, confined chiefly to

this aspect.

20. Section 20 of the Act under which the appellant had

been charged prescribes for punishment for contravention in

relation to cannabis plant and cannabis. Section 29 of the

Act  ordains the punishment for  abetment  of  and criminal

conspiracy for commission of  an offence punishable under

Chapter  IV.  The  gravamen  of  the  charge  against  the

appellant  is  possession  and  transportation  of  charas  as

31

punishable under the above provisions. It cannot be gainsaid

thus, that the appellant to be guilty of the offence with which

he had been charged, he must be proved to be in conscious

possession  of  the  contraband  seized.  This  assumes  great

significance as admittedly the procedure of search of the Alto

vehicle which allegedly he had been driving and the seizure

of charas, the registration certificate of the vehicle and the

passbook in the name of the appellant in particular had been

in his absence as well  as without the participation of  any

independent witness. The identification of the appellant to be

the  driver  who had absconded  on  seeing  the  patrol  party

therefore  is  the  sine  qua non for  the  proof  of  the  charge

leveled  against  him.  The  materials  on  record  propel  three

pieces  of  evidence  in  this  regard,  firstly  the  testimony  of

PW-1  and  PW-8,  secondly  the  evidence  of  Govind  Singh

according  to  whom  the  vehicle  had  been  taken  by  the

appellant  for  bringing  his  wife  from  Anni  and  most

importantly the recovery of the bank passbook in his name

from the  vehicle.  To  recall,  though PW-1  claimed  to  have

identified  the  absconding  driver  of  the  vehicle  to  be  the

appellant  Khekh  Ram  in  the  search  light,  in

32

cross-examination  he  stated  to  have  seen  along  with  the

other  members  of  the  patrol  party,  his  back  portion.  He

endeavoured to improve his observation, by mentioning that

he had seen also his side face from a distance of 40 to 50

yards,  but  admitted  that  Khekh  Ram  was  not  personally

known to him before that incident.  

21. PW-8  though  was  silent  with  regard  to  the

identification of  the fleeing driver,  in cross-examination he

mentioned that at the point of time when the two vehicles

were  face  to  face,  the  driver  of  the  Alto  car  was  facing

towards the police vehicle and he could recognize him. This

witness however did not claim to have identified the driver to

be  the  appellant,  Khekh  Ram  at  that  point  of  time.  The

testimony of PW-1 and PW-8 taken together by itself is not

adequately  persuasive  to  unimpeachably  establish  the

identity of the driver of the Alto vehicle to be Khekh Ram, the

appellant.  In  absence  of  any  test  identification  parade,

implication  of  the  appellant  on  the  basis,  this  piece  of

evidence, where the appellant Khekh Ram was not known to

either  of  these  two  witnesses  or  had  been  seen  by  them

before would be clearly hazardous. Whereas the disclosure

33

made by the co-accused Govind Singh that he had lent the

vehicle  to  the  appellant  to  carry  his  wife  on  19.10.2009

would not  ipso facto  be a conclusive proof of his identity as

the driver of the vehicle at the time of its interception by the

police party, the recovery of his passbook therefrom, albeit a

factor weighing against him, cannot as well clinch by itself

the issue of his identification in favour of the prosecution.

With the evidence forthcoming that the registered owner of

the vehicle was Ses Ram (PW-2) who deposed to have sold it

to Govind Singh but the registration thereof had not been

transferred and further that the vehicle had been temporarily

lent  to  the  appellant  for  his  personal  work,  does  not

irrefutably rule out the possibility of use thereof by anyone of

them at the relevant time. In the overall  state of  evidence

with regard to identification, in our comprehension, the view

taken by the Trial  Court is overwhelmingly reasonable.  To

the contrary, the conclusion of the High Court on this issue

seems to be dominantly guided by the recovery of the bank

passbook in the name of the appellant from the vehicle and

the reference of his name in the ruqqa Ext.PW8/A and the

NCB  form.  The  failure  of  the  appellant  to  explain  the

34

presence  of  his  bank  passbook  in  the  car  also  weighed

considerably with the High Court against him.  

22. The photographs, claimed by the prosecution to have

been taken by the Investigating Officer, PW-8 with his digital

camera to correlate the seized article with the one captured

therein,  to  state  the  least,  wholly  lack  in  credence  and

persuasion. Not only, as expected, the photographs with the

kind of camera used, do not record the date of the procedure

i.e. 20.10.2009, some of those do not bear any date whereas

the rest  are  dated 05.01.2008,  7.06 a.m.  The prosecution

has  failed  to  offer  any  explanation  whatsoever  for  this

anomaly. It is thus more than apparent that the appellant

has been implicated in the offence wholly due to the recovery

of  his  bank  passbook  from  the  vehicle  for  which  as  a

consequence his name was recorded in all  the documents

prepared  in  connection  with  the  exercise  undertaken.  In

absence of any other cogent, coherent and clinching evidence

of his identification as the driver of the Alto car carrying the

contraband, this document to reiterate, cannot be acted in

isolation  to  base  his  conviction.  Having  regard  to  the

materials on record, it is clear that his arrest in connection

35

with this case was due to the recovery of his bank passbook

from the car and not on the basis of his spot identification.

The prosecution, in our view, has failed to adduce conclusive

and consistent evidence to bring home the charge against the

appellant.

23. It is a common place proposition that in a criminal

trial suspicion however grave cannot take the place of proof

and the prosecution to succeed has to prove its case and

establish  the  charge  by  adducing  convincing  evidence  to

ward off any reasonable doubt about the complicity of the

accused.  For  this,  the  prosecution  case  has  to  be  in  the

category of “must be true” and not “may be true”. This Court

while dwelling on this postulation, in Rajiv Singh vs. State

of Bihar and another5 dilated thereon as hereunder:

“66.  It  is  well  entrenched  principle  of criminal  jurisprudence  that  a  charge  can be  said  to  be  proved  only  when  there  is certain  and  explicit  evidence  to  warrant legal conviction and that no person can be held  guilty  on  pure  moral  conviction. Howsoever  grave  the  alleged  offence  may be, otherwise stirring the conscience of any court,  suspicion  alone  cannot  take  the place  of  legal  proof.  The  well  established cannon  of  criminal  justice  is  "fouler  the

5  (2015) 16 SCC 369

36

crime  higher  the  proof".  In  unmistakable terms,  it  is  the  mandate  of  law  that  the prosecution  in  order  to  succeed  in  a criminal  trial,  has  to  prove  the  charge(s) beyond all reasonable doubt.

67.  The  above  enunciations  resonated umpteen  times  to  be  reiterated  in  Raj Kumar  Singh  v.  State  of  Rajasthan  as succinctly summarized in paragraph 21 as hereunder:

21.  Suspicion,  however  grave  it  may  be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved".  In a criminal  trial,  suspicion  no  matter  how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and  "must  be"  is  quite  large  and  divides vague conjectures from sure conclusions. In a  criminal  case,  the  court  has  a  duty  to ensure that mere conjectures or suspicion do  not  take  the  place  of  legal  proof.  The large distance between "may be" true and "must be" true, must be covered by way of clear,  cogent and unimpeachable evidence produced  by  the  prosecution,  before  an accused is condemned as a convict, and the basic and golden rule must be applied. In such  cases,  while  keeping  in  mind  the distance between "may be" true and "must be" true, the court must maintain the vital distance  between  conjectures  and  sure conclusions  to  be  arrived  at,  on  the touchstone  of  dispassionate  judicial scrutiny  based  upon  a  complete  and comprehensive appreciation of  all  features of  the  case,  as  well  as  the  quality  and

37

credibility  of  the  evidence  brought  on record.  The  court  must  ensure  that miscarriage of justice is avoided and if the facts  and  circumstances  of  a  case  so demand, then the benefit of doubt must be given to the accused, keeping in mind that a  reasonable  doubt  is  not  an  imaginary, trivial or a merely probable doubt, but a fair doubt  that  is  based  upon  reason  and common sense.

[Emphasis laid by the Court]

68.  In  supplementation,  it  was  held  in affirmation of the view taken in Kali Ram v. State of H.P. that if two views are possible on the  evidence  adduced in  the  case,  one pointing to the guilt of the accused and the other  to  his  innocence,  the  view  which  is favourable  to  the  accused  should  be adopted.

69.  In  terms  of  this  judgment,  suspicion, howsoever  grave  cannot  take  the  place  of proof  and the prosecution case to  succeed has to be in the category of "must be" and not "may be" a distance to be covered by way of clear, cogent and unimpeachable evidence to  rule  out  any  possibility  of  wrongful conviction  of  the  accused  and  resultant miscarriage  of  justice.  For  this,  the  Court has to essentially undertake an exhaustive and analytical appraisal of the evidence on record and register findings as warranted by the  same.  The  above  proposition  is  so well-established  that  it  does  not  call  for multiple citations to further consolidate the same.”

38

24. In  our  estimate,  having  regard  to  the  quality  of

evidence  on  record  as  a  whole  and  in  particular  on  the

aspect  of  identification,  the view taken by the Trial  Court

being convincingly reasonable is acceptable in comparison to

one adopted by the High Court.

25. The  High  Court  in  the  attendant  facts  and

circumstances, in our determination, erred in upturning the

findings  recorded  by  the  Trial  Court.  The  impugned

judgment and order is thus set aside and the acquittal of the

appellant  is  restored.  This  Court  shares  the  concern

expressed  by  the  Trial  Court  on  the  shoddy  investigation

conducted  in  the  case,  having regard  in  particular  to  the

seriousness of the offence involved and reiterate the direction

issued by it to the Superintendent of Police, Kullu to enquire

into  the  matter  to  ascertain  the  reason  for  the

omission/lapses in the investigation,  identify the person(s)

responsible  therefor  and  the  action  taken  in  connection

therewith  so  as  to  ensure  against  repetition  of  such

shortcomings in future. The Superintendent of Police, Kullu

would complete the inquiry and submit a report to this Court

within  a  period  of  three  months  herefrom.  The  appeal  is

39

allowed.  The  appellant  be  released  from  custody  if  not

required in connection with any other case.

…........................................J. [N.V. RAMANA]

…........................................J. [AMITAVA ROY]

NEW DELHI; NOVEMBER 10, 2017.