REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1053 OF 2016

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

appeal.

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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.  4

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

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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.

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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

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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

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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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