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2015 DIGILAW 456 (HP)

State Of Himachal Pradesh v. Onyemaechi

2015-05-04

PIAR SINGH RANA, SANJAY KAROL

body2015
JUDGMENT Sanjay Karol, J.—Petitioner-State has filed the present petition under the provisions of Section 378(3) of the Code of Criminal Procedure, seeking leave to appeal against the judgment dated 11.11.2014, passed by Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh, in Sessions Trial No. 48 of 2014, titled as State of H.P. v. Onyemaechi, whereby accused-respondent (hereinafter referred to as the accused) stands acquitted of the offence, punishable under the provisions of Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. In connection with FIR No. 108 dated 2.4.2014 (Ex. PW-7/A), registered at Police Station, Sadar (Kullu), under the provisions of Section 21 of the NDPS Act, and Section 14 of the Foreigners Act, accused Onyemaechi was charged to face trial, for having committed the aforesaid offences. Allegedly, he was found to be in conscious possession of 9 grams of cocaine and also violated the provisions of the Foreigners Act. 3. Based on the testimonies of the witnesses and the material on record, trial Court acquitted the accused of the offence, punishable under the provisions of Section 21 of the NDPS Act and convicted him for having committed an offence, punishable under the provisions of Section 14 of the Foreigners Act and sentenced to serve simple imprisonment for a period of eight months and pay fine of Rs. 3000/-, and in default of payment thereof, to further undergo simple imprisonment for a period of two months. Accused has already served the sentence, so imposed by the trial Court. 4. Hence, the present petition for leave to appeal by the State against the acquittal of the accused, in relation to offence punishable under Section 21 of the NDPS Act. 5. Mr. J.S. Guleria, learned Assistant Advocate General, has taken us through the record of the trial Court, so produced in Court, including the testimonies of the prosecution witnesses. 6. Briefly stated, case of the prosecution is that on the morning of 2.4.2014, at about 8.20, when police party headed by SI Shiv Singh Guleria (PW-8), consisting of Constable Varun Kumar (PW-2) and Constable Inder Dev (not examined), was present at HRTC Bus Stand, Sarwari, Kullu, they noticed a person, carrying a rucksack on his left shoulder. On inquiry, he disclosed his name as Onyemaechi, a Nigerian national. He handed over a scanned copy of the Passport to SI Shiv Singh Guleria. On inquiry, he disclosed his name as Onyemaechi, a Nigerian national. He handed over a scanned copy of the Passport to SI Shiv Singh Guleria. Visa of the accused was found to have expired as it was valid only up till 21.1.2014. On suspicion, police party searched the rucksack, from which one polythene envelope wrapped with a polythene tape was recovered. On opening the envelope, white coloured substance was recovered, which on checking was found to be cocaine, and when weighed was of 9 grams. Necessary proceedings were conducted on the spot. Report of the Forensic Science Laboratory revealed the contraband substance to be Cocaine. 7. We find testimonies of the police officials, namely Constable Varun Kumar (PW-2), HC Balbir Sharma (Pw-3) and SI Shiv Singh Guleria (PW-8), to have been contradicted by independent witnesses Rattan Lal (PW-1) and Ranjeet Nagal (PW-6). According to police officials, on suspicion, they apprehended the accused, and after associating independent witnesses, carried out the search and seizure operations. From the rucksack, so carried by the accused, cocaine weighing 9 grams was recovered. Thus, recovery was effected from his conscious possession. 8. But then, both the independent witnesses have deposed that they were called by the police to the Police Station and accused was not nabbed by the police in their presence. In fact, Ranjeet Nagal goes to state that it was in the early hours of the morning that the police called him to the Police Assistant Booth and made him sign the documents. Version of Rattan Lal is also somewhat to similar effect. According to him, he was called by the police to the Police Station and informed that cocaine was recovered from the accused. Police was talking to the accused in a language which he could not understand. 9. In view of two views having emerged on the vital point of conduct of search and seizure operations, we find no reason to interfere with the judgment so rendered by the trial Court. 10. Police was talking to the accused in a language which he could not understand. 9. In view of two views having emerged on the vital point of conduct of search and seizure operations, we find no reason to interfere with the judgment so rendered by the trial Court. 10. It is well established principle of law that (i) the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Balak Ram Vs. State of U.P., (1975) 3 SCC 219 ; Allarakha K. Mansuri Vs. State of Gujarat, AIR 2002 SC 1051 ; Raghunath and Ram Kishan and Others Vs. State of Haryana and Others, (2003) 1 SCC 398 ; State of Uttar Pradesh Vs. Ram Veer Singh and Others, (2007) 13 SCC 102 ; S. Rama Krishna Vs. S. Rami Reddy (D) by his LRs. and Others, AIR 2008 SC 2066 ; Sambhaji Hindurao Deshmukh and Others Vs. State of Maharashtra, (2008) 11 SCC 186 ; Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, (2009) 10 SCC 206 ; Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, (2009) 16 SCC 98 ; and Ram Singh @ Chhaju Vs. State of Himachal Pradesh, (2010) 2 SCC 445 . 11. State of Maharashtra, (2008) 11 SCC 186 ; Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, (2009) 10 SCC 206 ; Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, (2009) 16 SCC 98 ; and Ram Singh @ Chhaju Vs. State of Himachal Pradesh, (2010) 2 SCC 445 . 11. In Sheo Swarup and Others vs. The King-Emperor AIR 1934 227 (Privy Council), the Privy Council held that: "...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...." 12. In Chandrappa and Others Vs. State of Karnataka, (2007) 4 SCC 415 , the apex Court observed as under: "(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (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. (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 on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 13. In State of U.P. Vs. Banne @ Baijnath and Others, (2009) 4 SCC 271 , the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court; and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that "Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference." (Emphasis supplied). 14. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference." (Emphasis supplied). 14. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 15. In Prandas Vs. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in - Sheo Swarup and Others vs. The King-Emperor AIR 1934 227 (Privy Council) in these words: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."" 16. Hence, trial Court, in our considered view, rightly acquitted the accused of having committed an offence, punishable under the provisions of Section 21 of the NDPS Act. There is no error apparent on the face of record or illegality or perversity, resulting into miscarriage of justice, in the findings returned by the trial Court, warranting interference by this Court. As such, present petition for leave to appeal, being without any merit, is dismissed and disposed of.