Supreme Court discussed the extent of High Court’s appellate jurisdiction against judgement of acquittal and whether non examination of independent witnesses vitiates the prosecution case.

Raveen Kumar v State of Himachal Pradesh

Criminal Appeal No. 218788 of 2011, decided on 26^th October, 2020

 

Provisions of Law: Narcotics Drugs & Psychotropic Substances Act, 1985 (Section 20); Constitution of India (Article 136), Code of Criminal Procedure, 1973 (Section 161)

 

Bench: N.V. Ramana, Surya Kant, Hrishikesh Roy, JJ.

Facts:

In the present case, the appellant had challenged a judgement passed by a Division Bench of the Himachal Pradesh High Court whereby his acquittal under Section 20 of the NDPS Act was reversed and a sentence of two years rigorous imprisonment with a fine of Rs.50,000 was imposed upon him. Himachal Pradesh Police stopped the appellants’ vehicle at the J&K – HP border while conducting traffic checks and discovered a polythene bag containing 1.23Kg of charas. The trial court acquitted the appellant observing that possession of a prohibited substance had not been proved beyond reasonable doubt, wherein, heavy reliance was place by the court on a reply submitted by the prosecution to oppose appellant’s prayer for bail. Consequently, the State appealed before the Hight Court which held that the reasoning of the trial Court was totally fallacious and upon reappreciating the entire evidence on record, passed the impugned order of conviction.

 

Issues:

(i) What is the scope and essence of the High Court’s appellate jurisdiction against a judgment of acquittal?

 

(ii) What is the extent of reliance upon a document with which the other side was not confronted with during cross examination?

 

(iii) Whether non examination of independent witnesses vitiates the prosecution case?

 

(iv) To determine whether leniency is to be exercised while pronouncing the punishment in the present case?

 

Held:

(i) While considering this issue, the court reiterated that there is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal and that an appellate court is free to reconsider the questions pertaining to both, law and fact, and reappreciate the entirety of evidence on record. While deciding upon such extent, the bench relied on the listed circumstances, pointed out earlier in State of UP v. Banne [(2009) 4 SCC 271] wherein the interference of an appellate Court against acquittal was justified. Furthermore, deriving its powers from Article 136 of the Constitution, the bench propounded that it only examined whether the High Court has failed to correctly apply these principles governing appeals against acquittal or not. Thereby holding the view that there was no legal necessity for the bench, to reappreciate the entire evidence merely on the grounds that the High Court had convicted the appellant for the first time in exercise of its appellate jurisdiction.

 

(ii) Herein the court had to determine as to what extent, reliance could be placed on prosecutions reply to bail application as the appellant’s acquittal was primarily based upon the finding that the case was not of ‘chance recovery’ and trial court reached such finding solely on the basis of averments made in such reply. The bench pointed out that a court should be overcautious to place reliance on a piece of evidence with which the concerned witness has not been confronted despite an opportunity to do so, no need to separately prove the court records emanating during trial and that no legal presumption can be extended to the veracity of contents of such documents. Relying on Sita Ram Bhau Patil v. Ramchandra Nago Patil [(1977) 2 SCC 49] the court held that such reply filed in court proceedings can be treated as an admission which must be proved and the opposite party must be confronted with it at the stage of cross examination. Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the bench held that the High Court was justified to interfere and reverse the findings.

 

(iii) Reiterating the precedent laid down in Kalpnath Rai v. State [(1998) AIR SC 201] the court asserted that it would be gain said that lack of independent witnesses are not fatal to the prosecution case. Commenting upon the said precedent, the bench said that such omissions do cast an added duty on courts to adopt a greater degree of care while scrutinising the testimonies of police officers, which if found reliable, can form the basis of a successful conviction. Examining the statements of all the Personal Witnesses, the court held that their statements broadly corroborates and strengthens the seizure of contraband substance from the possession of appellant and the trivialities in the statements of such witnesses, arising out of confusion over time frame of search, conducted by police in the present case were immaterial.

 

(iv) The court observed that the High Court had already given a very generous consideration to the appellant’s age, circumstances as well as the delay in trial and appeal and the sentence accorded by the High Court was charitable enough. Considering the facts of the case and the precedent set in the case of Hira Singh v. Union of India with regards to the amount of such contraband considered as ‘commercial quantity’, the appeals were dismissed by the bench, bail bonds were cancelled and the respondent State was directed to take the appellant into custody to serve the remainder of his two years’ sentence.