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2025 DIGILAW 338 (HP)

State of Himachal Pradesh v. Rakesh Singh

2025-03-11

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : (Sushil Kukreja, J.) The instant appeal has been preferred by the appellant/State under Section 378 of Criminal Procedure Code against judgment dated 10.04.2015, passed by learned Special Judge, Mandi, District Mandi, H.P., in Sessions Trial No. 02/2011, whereby the accused (respondent herein) was acquitted from the charges under Section 20 of the Narcotic Drugs & Psychotropic Substance Act (for short “the NDPS Act”). 2. The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under: 2(a). On 08.05.2010 a police team was patrolling at Mehar- Dhar and also checking the vehicles. Around 08:30 p.m., a maruti car, having registration No. CHF-4499, came from Joginder Nagar side and it was stopped. Accused Rakesh Singh was sitting on rear seat and he tried to flee, but he was nabbed. The accused was baffled and he was hiding something under his T-shirt. On being directed to show as to what he was hiding, charas in the shape of sticks was recovered from him. The recovered contraband, on being weighed, was found to be 150 grams. Thereafter, the police completed all the codal formalities, viz., recovered contraband was taken into possession, spot map was prepared, statements of the witnesses were recorded and NCB forms, in triplicate, were filled in. After completion of the investigation, police presented the challan in the learned Trial Court. 3. The learned Trial Court took cognizance against the accused and charge under Section 20 of the NDPS Act was framed against him. The prosecution, in order to prove its case, examined eight witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein he stated that he was falsely implicated. However, he did not examine any witness in his defence. 4. The learned Trial Court, vide impugned judgment dated 10.04.2015 acquitted the accused, hence the instant appeal preferred by the appellant/State. 5. We have heard the learned Senior Additional Advocate General for the appellant/State, learned counsel for the accused/respondent and carefully examined the entire records. 6. The learned Senior Additional Advocate General for the appellant/State contended that the learned Trial Court has ignored the relevant material and not appreciated the statements of the witnesses in its right perspective. He further contended that the Trial Court took a hyper technical view and the impugned judgment is based on surmises and conjectures, thus liable to be quashed and set-aside. He further contended that the Trial Court took a hyper technical view and the impugned judgment is based on surmises and conjectures, thus liable to be quashed and set-aside. Lastly, it is prayed that the impugned judgment of acquittal, passed by the learned Trial Court, be quashed and set- aside. 7. Conversely, the learned counsel for the accused/respondent contended that the judgment passed by the learned Trial Court is the result of proper appreciation of the material on record and the same was passed after appreciating the evidence and law to its right and true perspective. He further contended that there are material contradictions in the statements of the prosecution witnesses. He also submitted that prosecution has miserably failed to ensure compliance of Section 50 of NDPS Act. The investigating officer had failed to inform the accused that he had a legal right to get his search conducted before a Gazetted Officer or a Magistrate. 8. The scope of power of appellate court in case of appeal against acquittal has been dealt with by the Hon’ble Apex Court in case titled Muralidhar alias Gidda & another vs. State of Karnatka reported in (2014)5 SCC 730 , which reads as under : "10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... 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." The opinion of the Lord Russell has been followed over the years. 11. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "7...........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons. 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” 9. The Hon’ble Supreme Court in Rajesh Prasad vs. State of Bihar & another, (2022) 3 Supreme Court Cases 471, observed as under: “31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows: 31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352 ] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297 ] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297 ] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir 1991 Supp (1) SCC 35 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows: 31.2.1. Where the approach or reasoning of the High Court is perverse; (a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393 ] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489 ] (b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were “interested” witnesses. [State of U.P. v. Hakim Singh (1980) (c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393 ] (d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297 ] (e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297 ] (e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99 ] (f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610 ] (g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish “motive”. [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445 ] 31.2.2. Where acquittal would result is gross miscarriage of justice; (a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502 ] (b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610 ]” 10. In H.D. Sundara & others vs. State of Karnataka, (2023) 9 Supreme Court Cases 581, the Hon’ble Supreme Court has observed that the appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. The relevant portion of the above judgment is as under: “8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The relevant portion of the above judgment is as under: “8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows: 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible. 9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After reappreciating the oral and documentary evidence, the appellate court must first decide whether the trial court’s view was a possible view. The appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. The appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken.” 11. Thus, the law on the issue can be summarized 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. Further, if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court. 12. In the instant case, the accused has been tried for the commission of the offence punishable under Section 20 of the NDPS Act on the allegations that on 08.05.2010, around 08:45 p.m., at Mohardhar, Kunnu, he was found in exclusive and conscious possession of 150 grams of charas. 13. To substantiate the charge framed against the respondent/accused and to bring home the guilt of the accused, the prosecution has examined as many as eight witnesses. However, the case of the prosecution mainly rests upon the statements of PW-2, Constable Dhani Ram, and PW-7, HC Kewal Singh, who is the Investigating Officer. Both these witnesses have deposed that on 08.05.2010 they alongwith Constable Ashwani Kumar, HHG Brahama Nand went for Nakabandi and traffic checking towards Mehar-dhar. Around 08:30 p.m., a maruti car, having registration No. CH-F-4499 came from Joginder Nagar side and it was signaled to be stopped. They further deposed that a person was sitting on the rear seat of the vehicle and he tried to flee. On being inquired, he (accused) divulged his name as Rakesh. Around 08:30 p.m., a maruti car, having registration No. CH-F-4499 came from Joginder Nagar side and it was signaled to be stopped. They further deposed that a person was sitting on the rear seat of the vehicle and he tried to flee. On being inquired, he (accused) divulged his name as Rakesh. As per these witnesses, the accused was perplexed and he was hiding something inside his T-shirt. He was asked to show as to what he was hiding, on which from his vest, a black substance, which was in the shape of big and small sticks was found, which was charas. The recovered contraband, on weighment, was found to be 150 grams. It was put in the same manner in the vest and kept in a cloth parcel. The cloth parcel was sealed with seal having seal impression “Z” at four places and the sample seal was taken separately on a separate piece of cloth, which is Ex. PW-2/A. 14. The learned Trial Court has acquitted the accused mainly on the ground that the Investigating Agency has failed to comply with the mandatory provisions of Section 50 of the NDPS Act. 15. Admittedly, as per the case of the prosecution itself, the contraband was recovered from the packet concealed by the accused in the vests worn by him under his T-shirt during his personal search. 16. However, from the entire evidence which finds place on record on the part of prosecution and even if taken as a whole on face value, it is clear that the investigation agency has failed to comply with the mandatory provision of section 50 of NDPS Act, 1985. 17. In the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand ( (2018) 18 SCC (380 ), Hon'ble Supreme Court has held that it is mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. State of Uttarakhand ( (2018) 18 SCC (380 ), Hon'ble Supreme Court has held that it is mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. Further that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. Para Nos.18 to 20 of the aforesaid judgment read as follows: "18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra). 19. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392 )." 18. In a recent judgment of the Hon’ble Supreme Court, titled as Ranjan Kumar Chadha vs. State of Himachal Pradesh , AIR 2023 Supreme Court 5164 , Hon'ble Supreme Court has extensively addressed the scope and object of Section 50 of NDPS Act and laid down the guidelines by holding that search and seizure and recovery of contraband not made in the presence of any Magistrate or Gazetted Officer and non-compliance with the mandatory procedure under Section 50 of NDPS Act,1985 is fatal to the prosecution case. It has been held as under: “33. Ordinarily, it could be said or argued that “to search any person” would mean, to search the articles on the person or body of the person to be searched and would normally not include the articles which are not on the body of the person to be searched. When we are deliberating on the scope and true purport of Section 50 of the NDPS Act, we should bear in mind that the main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized officer. … … … … … … … … … 36. Considering the aforesaid provisions, the inference which can be drawn is that “to search any person” would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of the NDPS Act. Considering the aforesaid provisions, the inference which can be drawn is that “to search any person” would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of the NDPS Act. In contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50. However, when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed. This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. The concealment which is suspected is on the person or about his person. 64. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:- (i) Section 50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer. (iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50. (vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate. (vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence. (viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.” 19. In the instant case, the contraband was allegedly recovered from the packet concealed by the accused in the vest worn by him under his T-shirt during his personal search. Any other article that has been recovered may be relied upon in any other independent proceedings.” 19. In the instant case, the contraband was allegedly recovered from the packet concealed by the accused in the vest worn by him under his T-shirt during his personal search. However, no option was given to the accused prior to his personal search either before a Gazetted Officer or before a Magistrate in flagrant violation of the mandatory provisions of Section 50 of the NDPS Act. The prosecution has failed to prove on the basis of oral and documentary evidence that the accused was made aware of his right to be searched before a Gazetted Officer or before a Magistrate. 20. By applying the abovesaid principles in the case on hand, since there is total violation of mandatory provisions of Section 50 of the NDPS Act as such the recovery stood vitiated. Therefore, we are of the considered opinion that the view taken by the learned trial Court while acquitting the accused is a reasonable view based on the evidence and the same cannot be said to be either perverse or contrary to the material on record. 21. In view of what has been discussed hereinabove, no interference in the judgment of acquittal, rendered by the learned Trial Court, is required, as the same is the result of proper appreciation of evidence and law. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Bail bonds are discharged. Pending application(s), if any, shall also stand(s) disposed of.