On September 15th, the Supreme Court reiterated the law laid down in State of H.P. v. Pawan Kumar. In this case, it was held that Section 50 of the Narcotic Drugs and Psychotropic Substances Act can have no application when the contraband was allegedly recovered from the bag, which was being carried by the accused. Section 50 is applicable only in the case of personal search(s). Moreover, it was reiterated that Appellate Courts are vested with the powers to review and draw their conclusions.
Background
The Accused (Appellant) was tried for a charge punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) for possession of charas. On 30.06.2003, the Sessions Judge, Shimla acquitted the Appellant mainly on the ground that the Prosecution’s case was not supported by independent witnesses. Additionally, the Court ruled that conscious possession was not proved; there was non-compliance of Section 50 of the NDPS Act. The Court further ruled that proper procedure was not followed in sending the samples for examination and the case of the Prosecution was unnatural and improbable.
Aggrieved by the judgment of the Trial Court, the NCB, Chandigarh filed an appeal before the High Court of Himachal Pradesh. The High Court reappreciated the evidence on record. It set aside the judgment of the Trial Court. The Court passed the order for conviction and sentencing of the Accused.
Aggrieved by the conviction recorded and sentence imposed by the High Court, the accused filed an appeal before the Supreme Court.
Appellant’s Contentions
The Counsel for the Appellant made the following contentions:
Firstly, the Dhaba in question was not being run by him and he was employed as a priest in the nearby temple. Secondly, the story of the Prosecution is not supported by independent witnesses. Thirdly, there is no acceptable evidence on record to hold that Accused was in exclusive and conscious possession of the seized material /charas as much as the same was seized from the gunny bag lying near the counter of the Dhaba. Lastly, search notice issued to the Accused was not as per Section 50 of the NDPS Act.
Respondent’s Contentions
The Counsel for the Respondent made the following contentions :
The prosecution has proved its case beyond a reasonable doubt. Second, merely because independent witnesses were not examined, the same by itself is no ground to reject the case of the prosecution.
Third, the Dhaba was being run by his wife, which is near to the temple. As the appellant was on the counter during the relevant time, as such, it cannot be said that the seized material of charas was not seized from his conscious possession.
Court’s Observations
A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah rejected the submissions of the Appellant.
The Bench stated that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to the evidence on record. These were rightly set aside by the High Court.
It is always open to the Appellate Court to re-appreciate the evidence, on which the order of acquittal is founded. Thus, Appellate Courts are vested with the powers to review and come to their conclusion.
The Supreme Court referred to the case of State of H.P. v. Pawan Kumar wherein it was held that Section 50 of the Act can have no application when the contraband was allegedly recovered from the bag, which was being carried by the accused. Section 50 of the NDPS Act is applicable only in the case of personal search. As such, there is no basis for the findings recorded by the Trial Court that there was non-compliance of the provision under Section 50 of the NDPS Act.
The Court further noted that the evidence made it clear that the Accused was at the counter of the Dhaba which was constructed on the land owned by his wife near the temple. Further, the charas was found in the counter of the Dhaba in a gunny bag. The facts of the case show that the Accused not only had direct physical control over charas, he knew of its presence and character.
The Court stated that a functional and flexible approach in defining and understanding ‘possession’ as a concept has to be adopted and the word has to be understood keeping in mind the purpose and object of the enactment.
Court’s Decision
The Bench held that the judgment of the High Court does not suffer from any infirmity to interfere with the judgment of conviction. However, as the incident occurred in the year 2001 and as the appellant claimed to be a priest in the temple (who is now aged about 65 years), the sentence imposed on him was modified.
The Supreme Court reduced the sentence to a period of 10 years while maintaining the conviction and the penalty as imposed by the High Court.
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