Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, hereafter referred to as the “Act”).= 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. – 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- 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.

1
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
2
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.
3
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
4
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
5
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.
6
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.
7
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
8
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
9
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
10
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
11
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
12
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.
13
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.
14
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
15
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 evolution
since Sheo Swarup is to be found in para
42 of the Report in Chandrappa v. State of Karnataka.
The same may, therefore, be usefully noticed
below: (SCC p.432)
“42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while
dealing with an appeal against an order of acquittal
emerge:
(1) An appellate court has full power
to review, re-appreciate and reconsider
the evidence upon which the
order of acquittal is founded.
4 (2012) 10 SCC 383
16
(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 emphasise
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 presumption
in favour of the accused. Firstly,
the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence
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 further
reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence
17
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
18
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.
19
(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
20
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
21
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.