TaxTMI 
TaxTMI 
2020 (10) TMI 1103
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....he appellant. The police in the course of rummaging found that the van was loaded with tins of ghee, a bag of maize, 20 bottles of honey, rajmah, angithi, thermos, stepney and some other miscellaneous articles. A polythene bag underneath the driver's seat was also discovered. Suspecting it to contain narcotics, the police summoned two local shopkeepers (including Nam Singh, PW1) as independent witnesses. The appellant was informed of his statutory right to be searched in the presence of a magistrate or gazetted officer but he consented to being searched by the police party itself. The contents of the bag were then examined and charas, in the form of dhoopbati and balls was found. It was weighed using scales obtained from a nearby shop and was found to be 1 kg and 230 gms. After a 10 gm sample of the contraband was extracted, the charas was sealed and seized, and other procedural formalities were completed. The appellant was arrested and statement of one of the two independent witnesses - Nam Singh (PW1) was recorded. The sample was sent for chemical analysis where it was confirmed to be charas with a resin content of 34.5%. The prosecution, accordingly, charged the appellant for of....
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....witness had not supported the prosecution version. 6. The respondentState appealed before the High Court, which through judgment dated 23.04.2010 held that the reasoning of the trial Court was totally fallacious. The High Court upon reappreciating the entire evidence on record, observed that first, the trial Court had wrongly discarded the statement of PW1, for he had corroborated major parts of the prosecution version and had merely pleaded ignorance to recovery of the polythene bag. Second, the conviction was possible even in the absence of any independent witness. Third, it was shown how the version of PW2 and PW5 could be reconciled and any possible contradiction would be remote and immaterial. Fourth and most crucially, PW5 (Investigating Officer) had not been confronted with the prosecution's earlier reply to the bail application and thus the same could not be relied upon to doubt the prosecution version. The High Court further opined that the alternate theory propounded by the defence was selectively not suggested to PW5. Given these two facts, there was nothing to infer that there was any prior information and the case was clearly one of chance recovery, thus amelioratin....
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....nsel for the parties and on perusal of the record, we find that these appeals raise the following three questions of law: (A) What is the scope and essence of the High Court's appellate jurisdiction against a judgment of acquittal?; (B) What is the extent of reliance upon a document with which the other side was not confronted with during crossexamination?; and (C) Whether nonexamination of independent witnesses vitiates the prosecution case? Additionally, considering that the question of sentencing arose for the first time before the High Court, the possibility of taking a lenient view in the present circumstances also requires consideration. A) Scope of appeal in cases of acquittal 11. The appellant's contention that the High Court could not have set aside a finding of acquittal, is legally unfounded. It has been settled through a catena of decisions that there is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal. An appellate Court is free to reconsider questions of both law and fact, and re- appreciate the entirety of evidence on record. There is, nonetheless, a selfrestraint on the exe....
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....rinciples cannot shock judicial conscience and this Court does not permit its conscience to be projected save where known and recognised tests of testimonial assessment are totally disregarded; otherwise, conscience can become an unruly customer." 14. There is, therefore, no legal necessity for us to reappreciate the entire evidence merely on the premise that the High Court has convicted the appellant for the first time in exercise of its appellate jurisdiction. Instead, the scope of the present appeals ought to be restricted to test whether the trial Court's order was indeed perverse and whether the High Court's reappreciation of evidence and consequent conviction was founded on cogent evidence. B) Reliance on prosecution's reply to bail application 15. It is apparent that the appellant's acquittal was primarily based upon the finding that the case was not one of 'chance recovery'. The trial Court reached such finding solely on the basis of certain averments made in a written reply submitted on 09.11.1994 by the prosecution in opposition to the appellant's bail application. 16. Learned counsel for the appellant could not fairly dispute the distinction between 'replies'....
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....s carrying Charas in his Maruti Van, though, it appears, that there was a general information against the petitioner indulging in such activities." 18. Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the High Court was adequately justified to interfere with and reverse the findings. C) Need for independent witnesses 19. It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. Kalpnath Rai v. State, (1998) AIR SC 201, 9 However, such omissions cast an added duty on Courts to adopt a greater-degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction. 20. The trial Court held that no independent witness supported the prosecution case and that the testimonies of the star policewitnesses, namely, PW2 and PW5, were contradictory. Both these observations are unreasoned and unsubstantiated by the evidence on record. The High Court, on the contrary, has given cogent and lucid reasons as to how the testimony of PW1 (alleged hostile independent witness) also substantially supports the prosecution case. 2....