Case: Naresh Kumar @ Nitu Vs. The State Of Himachal Pradesh

2. The appellant is stated to have been apprehended at Majhotli, by the police party, on suspicion, at about 6.15 A.M. after he disembarked from the State public transport bus going from Nerwa to Chamunda. Two kilograms of Charas is stated to have been recovered from a bag in his possession in presence ofSita Ram an independent witness.Shayam Singh, the depotat Nerwa, andKhem Raj, the conductor of the bus in question were examined as defence witnesses.3. After consideration of the entirety of the evidence, particularly that of2, and also noticing thatConstable Rakesh Kumar, anto the incident, had not been mentioned as a witness in the seizure memo Exhibitthe Special Judge opined that two theories had emerged with regard to the accusations against the appellant. The appellant was acquitted, giving him the benefit of doubt.4. The High Court reversed the acquittal, holding thathad admitted his signatures on Exhibitthe bag along with the narcotic,2/D the arrest memo and thepersonal search memo. No complaint had been lodged by the witness that he had been compelled by the police to sign the documents under pressure. The statements of the official witnesses,Rakesh Kumar andHead Constable Parmanand, were trustworthy, inspiring confidence, and could not be rejected only on the ground that they were police personnel. Any discrepancy with regard to distance and travelling time between Nerwa and Majhotli could be attributed to memory loss with passage of time, and was not required to be with mathematical precision. The time with regard to purchase of bus ticket had not been established.

Reasoning: We find substance in the submission on behalf of the appellant, that the travelling time for the bus, in the hills, for this distance would be one hour or more. Prima facie, the prosecution story that the appellant was apprehended at Majhotli at 6.15 A.M. becomes seriously doubtful if not impossible. The bus would have reached Majhotli at about 8.00 A.M. or thereafter only. The conclusion of the High Court that passage of time, and memory loss, were sufficient explanation for the time difference, is held to be perverse, and without proper consideration of Exhibit DX.the independent witness has stated that he was stopped at Majhotli by the police at 10.30 A.M. and was allowed to leave after verification of his motor cycle papers. The witness has specifically denied that the appellant was apprehended in his presence and that any search, seizure and recovery was conducted in his presence. He had deposed that he was called to the police station at 1:00 P.M. and asked to sign the papers. The witness was declared hostile. This aspect has not been considered by the High Court, which proceeded on the only assumption that the signatures were admitted.8. 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. 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 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. Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC 1311 , is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession 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 have been proved if it is established beyond reasonable doubt and not on preponderance of probability.In the facts of the present case, and the nature of evidence as discussed, 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 submissions regardingwith Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case.11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record.