NARESH KUMAR ALIAS NITUversusSTATE OF HLMACHAL PRADESH

                             [2017] 6 S.C.R. 424



A                      NARESH KUMAR ALIAS.NITU

                                      v.
                   STATE OF HlMACHAL PRADESH
                       (Criminal Appeal No. I 053of2016)
B
                                JULY27,2017
           [L. NAGESWARA RAO AND NAVIN SINHA, JJ.)
           Narcotic Drugs and Psychotropic Substances Act, 1985:
           ss. 20 and 61 - Charge under - Acquittal by Special Judge
C   giving benefit of doubt - Conviction by High Court - On appeal,
    held: Prosecution failed to establish the foundational facts beyond
    all reasonable doubt - The conclusions of High Court were
    speculative, based on conjectures and surmises,contrary to the
    weight of the evidence on record - Order of acquittal passed by
D   Special Judge upheld.
            ss. 35 and 54 - Presumption under - Held: Are rebuttable -
    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 the
    basis ofpreponderance ofprobability - Evidence - Burden ofproof
E
            Witness:
            Independent witness - Reliance on - Held: If independent
     evidence is available, and prosecution initially relies on it,
    subsequently the prosecution cannot discard the witness because it
F   finds him inconvenient.
           Allowing the appeal, the Court
           HELD: 1. 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
G   cannot suddenly discard the witness because it finds him
    inconvenient, and place reliance upon police witnesses only. PW-
    2, the independent witness has specifically denied that the
    appellant was apprehended in his presence and that any search,
    seizure and recovery was conducted in his presence. [Paras 7
    and 3) [428-B-D)
H
                                    424
         NARESH KUMAR ALIAS NITU v. STATE OF                            425
                 HIMACHAL PRADESH

      Karamjit Singh v. State (Delhi Administration) AIR 2003           A
      SC 1311 ; S. Jeevananthanan v. State (2004) 5 SCC
      230 : [2004] 1 Suppl. SCR 607 - distinguished.
      2. The presumption against the accused of culpability under
Section 35, and under Section 54 of the Narcotic Drugs and
Psychotropic Substances Act, 19S5 to explain possession                 B
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      C
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.
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           D
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.
[Paras S, 9] [42S-E, F-G]
      Noor Avga v. State of Punjab (200S) 16 SCC 417 :
      [200S] 10 SCR 379 - relied on.                                    E
        3. In the facts of the present case, and the nature of
evidence 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 conclusions of the High Court        F
in the facts of the present case are more speculative, based on
conjectures and surmises, contrary to the weight of the evidence
on record. [Paras 10, 11] [429-D, F-G]
                      Case Law Reference
                                                                        G. _)
      AIR 2003 SC 1311            distinguished         Paras
      [2004] 1 Suppl. SCR 607 distinguished             Paras
      [200S] 10 SCR 379           relied on             Para9

                                                                        H
426             SUPREME COURT REPORTS                            [2017) 6 S.C.R.


A            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1053 of2016.
              From the Judgment and Order dated 16/29.08.2016 of the High
      Court ofHimachal Pradesh at Shimla in Crl. Appeal No.4145 of2013.
              Rishi Malhotra, Adv. for the Appellant.
·s
              Varinder Kumar Sharma, Adv. for the Respondent.
             The Judgment of the Court was delivered by
              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
C     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 ofRs.2,00,000/-. Thus the present appeal.
               2. The appellant is stated to have been apprehended at Majhotli,.
D     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, particu.larly
      that of PW-2 and DW-2, and also noticing that PW-I, Constable Rakesh
      Kumar, an eye-witness to the incident, had not been mentioned as a
      witness in the seizure memo Exhibit PW- I /B, the Special Judge opined
 F
      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,
 G    Ex.PW-2/A seal impression, Ex.PW-2/D the 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-I Rakesh
      Kumar and PW-6 Head Constable Parmanand, were trustworthy, inspiring
 H
          NARESH KUMAR ALIAS NITU v. STATE OF                                      427
           HIMACHAL PRADESH [NAVIN SINHA, J.]

confidence, and could not be rejected only on the ground that they were            A
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.
                                                                          B
         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 boarde.d
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 C
Majhotli was 26 kms. as deposed by DW-1. In the hills, it would have
taken the bus at least one hour 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 D
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 E
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.               F
        6. We have considered the submissions on be~alf of the parties,
and also examined the evidence and other materials on record.
         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                   G
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.                  H
428            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     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
B
      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 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
c     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
D     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.
 E    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. Jeevananthanan vs.
      State, 2004(5) SCC 230, also does not appear to be a case where
      independent witnesses were available.
 F             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
G     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
      sec 417, observing:-
H
          NARESH KUMAR ALIAS NITU v. STATE OF                                 429
           HIMACHAL PRADESH [NAVIN SINHA, J.]

      "58 ...... An initial burden exists upon.the prosecution and only A
      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 B
      "preponderance of probability" on the accused. If 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       C
      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 mle, 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     D
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 Secti<?n
50 of the Act, or that the complainant could not be the investigating         E
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 requ)Jed to record a finding
that the conclusions of the Trial Court were so perverse and wholly           F
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      G
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.


Kalpana K.Tripathy                                           Appeal allowed