LexNARESH KUMAR ALIAS NITU versus STATE OF HLMACHAL PRADESH
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A B [2017] 6 S.C.R. 424 NARESH KUMAR ALIAS.NITU v. STATE OF HlMACHAL PRADESH (Criminal Appeal No. I 053of2016) 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. E 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 of preponderance of probability - Evidence - Burden of proof 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. G H 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 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) 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 AIR 2003 SC 1311 distinguished [2004] 1 Suppl. SCR 607 distinguished [200S] 10 SCR 379 relied on Paras Paras Para9 G. _) H 426 SUPREME COURT REPORTS [2017) 6 S.C.R. A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal ·s 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. 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 imprison
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