Sushil Kukreja, Judge
1. The present appeal has been preferred by the appellant- State under Section 378 of the Code of Criminal Procedure (Cr.PC) against the judgment of acquittal dated 07.11.2014 passed by the learned Special Judge-I, Shimla, H.P., in Sessions Trial No.4-S/7 of 2013, whereby the accused (respondent herein) was acquitted of the offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the ‘NDPS Act’).
2. Briefly stated the facts of the case, giving rise to instant appeal as per the prosecution story, are that on 28.09.2012, while a police party headed by Dy. SP Vijay Sharma, was on patrolling duty near Tara Devi, it received a secret information at about 10.30 A.M. that one person named Shiv Kumar, having Mobile No.8894164432, was coming from Dalash (Kullu) alongwith charas. On the basis of said information, police laid a naka and started checking the vehicles and when a bus bearing No.CH-01G-8893 came from Shimla side, it was stopped for checking and thereafter, when a person, sitting on Seat No.40, was asked to disclose his name, he disclosed his name as Shiv Kumar (accused/respondent herein), who was having a pithu bag in his lap. Thereafter, the driver and conductor of the bus were associated as witnesses by the police and then search of the pithu bag being carried by the accused was conducted. During the search, one sweater and one carry bag, wrapped with cello tape were taken out and on opening the carry bag, one shoe box, wrapped with cello tape, was found and after opening the shoe box, a black coloured substance was found inside the box. On smelling and experience, it was found to be charas. On weighment, the recovered contraband was found to be 3.150 kilograms. Thereafter, the police completed all the codal formalities, viz., recovered contraband was repacked in the same manner and then put in a cloth parcel, which was sealed with 6 seals of seal impression ‘H’. Sample seal was separately taken on a piece of cloth. NCB form, in triplicate, was filled and seal after use was handed over to Krishan Chand. The Investigating Officer prepared the rukka and sent to the police station, through Constable Biri Singh, on the basis of which, FIR in question was registered against the accused. Police recorded statements of the witnesses, clicked photographs and prepared the spot map. The accused was arrested and got medically examined. The cloth parcel, containing the recovered contraband, was handed over to SHO, who, after checking the entries, re-sealed the same with 6 seals of seal impression ‘C’ and deposited the case property in the Malkhana. The case property was sent to FSL, Junga for analysis.
3. On the completion of the investigation and receipt of the SFSL report, the charge-sheet was prepared and presented before the learned Trial Court.
4. The learned trial Court, vide order dated 23.05.2013 framed charges against the accused under Section 20 of NDPS Act, to which he did not plead guilty and claimed trial.
5. The prosecution, in order to prove its case, examined 16 witnesses. Statement of the accused under Section 313, Cr.PC was recorded, wherein he denied all set of incriminating evidence led by the prosecution against him, besides pleaded to be innocent and having been falsely impliaced in the case.
6. The learned trial Court, vide impugned judgment dated 07.11.2014, acquitted the accused for commission of the offence punishable under Section 20 of NDPS Act, hence, the instant appeal preferred by the appellant-State.
7. The learned Senior Additional Advocate General contended that the trial Court has not appreciated the evidence in its right perspective, but at the same time, has set unrealistic standards to evaluate the direct and cogent evidence. He further contended that the learned trial Court has wrongly given undue weightage to the minor contradictions in the statements of prosecution witnesses which do not go to the root of the case and further these minor contradictions are bound to occur due to lapse of time. Hence, he submitted that the impugned judgment of acquittal is liable to be set aside.
8. Conversely, the learned counsel for the respondent/accused contended that the impugned judgment has been passed by the learned Trial Court after proper appreciation of both facts and law. He further contended that the learned Trial Court has correctly appreciated the evidence in its true perspective and the impugned judgment does not require any interference by this Court. Therefore, he submitted that the instant appeal, which sans merits, be dismissed.
9. We have heard learned Senior Additional Advocate General for the appellant-State as well as learned counsel for the respondent/accused and also carefully examined the entire records.
10. It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Further, if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.
11. The scope of power of Appellate Court in case of appeal against acquittal has been dealt with by the Hon’ble Apex Court in Muralidhar alias Gidda & another Vs. State of Karnatka reported in (2014) 5 SCC 730, which reads as under :-
"10. Lord Russell in Sheo Swarup [1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said,
"... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed:
"7 the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.”
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem Karan [13], Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan [20], Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa [26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
"(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”
12. The Hon’ble Supreme Court in Rajesh Prasad vs. State of Bihar & another, (2022) 3 SCC 471, observed as under:-
“31.The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:
31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir]
31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows:
31.2.1. Where the approach or reasoning of the High Court is perverse;
(a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489]
(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on justice; the ground that they were “interested” witnesses. [State of U.P. v. Hakim Singh (1980)
(c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393]
(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]
(e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99]
(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]
(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish “motive”. [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445] 31.2.2. Where acquittal would result is gross miscarriage of (a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502] (b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610].”
13. In H.D. Sundara & others vs. State of Karnataka, (2023) 9 SCC 581, the Hon’ble Supreme Court has observed that the Appellate Court cannot overturn acquittal only on the ground that after re- appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. The relevant portion of the above judgment is as under:-
“8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows:
8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9.Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the appellate court must first decide whether the trial court’s view was a possible view. The appellate court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken.”
14. Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. Further, if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.
15. In the instant case, the accused has been tried for commission of the offence under Section 20 NDPS Act on the allegation that on 28.09.2012 at around 11.50 AM, near ITBP Office NH-22, he was found in conscious and exclusive possession of 3.150 kgs of charas.
16. To substantiate the charge framed against the respondent- accused and to bring home the guilt of the accused, the prosecution examined as many as 16 witnesses. However, case of the prosecution mainly rests upon the statements of PW-7 Krishan Chand, PW-8 Gurbaksh Singh, PW-13 ASI Rajesh Kumar, PW-14 C. Biri Singh and PW-15 Dy. SP Vijay Sharma (Investigating Officer), who have been examined primarily to prove the search, recovery and seizure of 3.150 kgs of charas in question from the exclusive and conscious possession of the accused.
17. PW-7 Krishan Chand and PW-8 Gurbaksh Singh, who are the independent witnesses, did not support the prosecution case and as such, they were declared hostile. They were cross-examined at length by the learned Public Prosecutor, however, nothing favourable could be elicited from their cross-examination. Both these witnesses denied the suggestion of learned Public Prosecutor that on 29.09.2012, they were on way to Shimla in Bus No.CH-01G08893 and that the accused was occupying Seat No.40 in the bus and his mobile was checked by Dy. SP. They further denied that the contraband was recovered from the possession of the accused in their presence.
18. It is well settled that the conviction can be based upon the testimony of the police officials, provided that such testimony is reliable, trustworthy and confidence inspiring. In Pramod Kumar Versus State (Government of NCT of Delhi), (2013) 6 Supreme Court Cases 588, the Hon’ble Supreme Court has held that if the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the Court finds the evidence of the police officer as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. Para-13 of the judgment reads as under:-
“13. This Court, after referring to State of U.P. v. Anil Singh, State (Govt. of NCT of Delhi) v. Sunil and Ramjee Rai v. State of Bihar has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.”
19. Similarly, in Baldev Singh Versus State of Haryana, (2015) 17 Supreme Court Cases 554, the Hon’ble Supreme Court has held that evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Relevant para of the judgment reads as under:-
“10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.”
20. In Surinder Kumar Versus State of Punjab, (2020) 2 Supreme Court Cases 563, the Hon’ble Supreme Court has held that the Court cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption should be the other way round. Para-16 of judgment reads as under:-
“16. In State (NCT of Delhi) Vs. Sunil it was held as under: (SCC p.655)
“It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption should be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature”.
21. Therefore, in view of the aforesaid settled legal position, the testimony of police witnesses cannot be rejected on the ground of non- corroboration by independent witnesses, however such testimony needs to be carefully scrutinized. The same must inspire confidence and should be consistent with the case set up by the prosecution. In case there are material contradictions, which goes to the root of the case and make the prosecution case highly doubtful, then this Court would obviously be circumspect while placing reliance on such testimony.
22. We have closely scrutinized the entire evidence on record especially the statements of police witnesses but from the close scrutiny of the same, we are of the considered opinion that the prosecution has failed to prove its case against the accused beyond shadow of reasonable doubt.
23. So far as the statements of PW-13 ASI Rajesh Kumar, PW-14 Constable Biri Singh and PW-15 Dy.SP Vijay Sharma (Investigating Officer), are concerned, all these witnesses have deposed that on 28.09.2012, when the police party was on patrolling duty near Tara Devi in Government Vehicle bearing Registration No. HP-03A-1426, then at about 10.30 A.M., a secret information was received that one person named Shiv Kumar was coming from Dalash, District Kullu alongwith charas, whose mobile number was 8894164432. Thereafter, a naka was laid and vehicles were checked and when a Bus bearing No.CH-01G-8893 came from Shimla side, it was stopped for checking and the person, who was sitting at seat No.40, was asked to disclose his name, he disclosed his name as Shiv Kumar. Thereafter, for ascertaining his name, when a ring was given on his Mobile No.8894164432, the said mobile rang-up in his pocket. The accused was having a bag (pithu bag) in his lap and thereafter driver Gurbaksh and conductor Krishan Kumar of the bus were got associated as witnesses and then the accused was apprised about his right to be searched before a Magistrate or Gazetted Officer, on which he consented to be searched by the police party present on the spot. Thereafter, the pithu bag being carried by the accused was searched and during search, one sweater and one carry bag wrapped with cello tap were taken out and after opening the same, one shoe box, which was also wrapped with cello tap, was taken out and on opening the said shoe box, a black coloured substance was found. On smelling and experience, it was found to be charas. The substance was got weighed with the help of electronic weighing machine and it was found to be 3 kgs 150 grams with carry bag and shoe box. The same was put in a cloth parcel along with sweater in presence of the independent witnesses and PW-13 ASI Rajesh by affixing six seals of seal impression ‘H’ and NCB form in triplicate was filled. Seal impression was also taken separately on a piece of cloth and the seal was given to witness Krishan Chand.
24. Perusal of the record reveals that there are various contradictions and inconsistencies in the statements of police witnesses. PW-15 Dy. SP Vijay Sharma stated that the accused was apprised about his right to be searched before a Magistrate and Gazetted Officer, on this, he consented to be searched by the police party, vide memo Ext.PW13/A. However PW-13 ASI Rajesh Kumar nowhere stated that option was also given to accused to have right to be searched before the Magistrate. Contradictory to the statement of PW-15 Dy.SP Vijay Sharma, PW-13 ASI Rajesh Kumar stated that two options were given, i.e. option to be searched before gazetted officer and second to police officer. So far as the consent memo Ext.PW13/A under Section 50 of NDPS Act is concerned, the said memo is in printed form and only blanks are shown to be filled up. PW-16 ASI Pratap Singh, who was one of the members of the raiding party,vaguely stated that the accused was apprised about his legal right by Dy.SP Vijay Sharma, vide memo Ext.PW13/A. This witness nowhere deposed as to whether option of search before Magistrate or Gazetted Officer as per legal right of accused was conveyed to him or not. PW-14 Constable Biri Singh had also given different version regarding compliance of Section 50 of NDPS Act by deposing that Dy. SP Vijay Sharma asked the accused that he had a right to give his personal search to Dy.SP or to Gazetted Officer. This witness nowhere stated that option was given to accused to be searched before the Magistrate.
25. PW-15 Dy.SP Vijay Sharma stated that the accused was having Nokia-1100 mobile having sim No.8894164432, however, there is no documentary evidence on record to show that said mobile phone was deposited in the Malkhana. PW-10 HC Parkash Chand nowhere stated Nokia Mobile-1100 was deposited in the malkhana and that he had made any entry to this effect. PW-15 produced mobile Nokia-1100 Ext.PX alongwith battery and SIM at the time of recording his statement before the court on 11.07.2014 and deposed that the said mobile was brought by him from Police Station State CID Bharari. However, in his cross- examination, this witness stated that mobile Ext.PX was not sealed and he had not brought any record qua depositing or taking out the mobile phone from the malkhana. Therefore, no reliance can be placed upon the prosecution story that the mobile phone Ext.PX belonged to the accused, especially when no documentary evidence has been placed on record to show that said mobile and SIM belonged to the accused. The Investigating Officer had ample opportunity to collect documentary evidence to show that Nokia mobile phone-1100 and SIM bearing No.8894164432 belonged to the accused, however, he did not collect any such evidence. In absence of any such material evidence available on record, the prosecution has failed to establish on record that the Nokia Mobile Phone-1100 alongwith SIM bearing No.8894164432 belonged to the accused and it also failed to connect the said mobile phone with the accused as no documentary evidence has been placed on record or produced to show that on 28.09.2012 PW-15 Dy.SP. Vijay Sharma had given missed call on Nokia mobile-1100 Ext.PX having SIM No.8894164432 at the time of checking of bus to identify the accused. It has also come on record that in the bus there were so many passengers, However, the case of the prosecution is silent as to who were sitting by the side of seat No.40. PW-15 Dy.SP Vijay Sharma, in his cross- examination could not disclose about the occupants of seats No.39 and 41 in the bus, who were the most material witnesses and the Investigating Officer did not bother to associate them. No satisfactory reason has been given by the prosecution as to why the said material witnesses were not associated, despite having opportunity to associate them. The Investigating Officer had preferred to associate only driver and conductor of the bus, who did not support the prosecution story. Hence, due to various contradictions, discrepancies and inconsistencies in the statements of police witnesses, the same does not inspire confidence.
26. Law is well settled with regard to the fact that howsoever strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. The Hon’ble Supreme Court in Raj Kumar Singh Vs. State of Rajasthan, (2013) 5 SCC 722 on this aspect of the matter held as under:-
“21. Suspicion, howsoever grave it may be, cannot take the place of proof, and there is a large difference between something that `may be proved and `will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be and `must be is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be true and `must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be true and `must be true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.”
27. Consequently, in view of the detailed discussion made hereinabove, we are of the firm opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The view taken by the learned Trial Court while acquitting the accused under Section 20 of NDPS Act is a reasonable view based on the evidence on record and the same cannot be said to be perverse or contrary to the material on record. Hence, no interference in the judgment of acquittal dated 07.11.2014, rendered by the learned Special Judge-I, Shimla, HP, in Sessions Trial No.4-S/7 of 2013, is required as the same is the result of proper appreciation of evidence and law. The appeal, which is devoid of merits, deserves dismissal and is accordingly dismissed. Bail bonds are discharged.
28. In view of the provisions of Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023, the respondent is directed to furnish bail bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within a period of four weeks with the stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
29. The appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any.
