IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No.62-MA of 2009
Date of Decision: 05.03.2009
State of Haryana
Applicant
Versus
Subhash and others
Respondents
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr.K.S.Godara, DAG Haryana for the applicant-State
.....
Jasbir Singh, J.
By filing this application, prayer has been made by the applicant
for grant of leave to file an appeal against judgment dated 23.10.2008, vide
which, the respondents were acquitted of the charges framed against them
under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short, the Act).
Heard.
It was allegation against the respondents that on 28.6.2005, they
were found in possession of 175 kgs. Of poppy husk without any licence.
Case of the prosecution, as noticed by the trial Court in its
judgment, under challenge, reads thus:-
Criminal Misc. No.62-MA of 2009 2
“Brief facts of the prosecution case, are on 28.6.2005 at
about 7.05 p.m. Bhagwan Dass ASI alongwith Kharak Singh HC
No.1439, Mainpal Constable No.456, Chailu Ram constable
No.1016, all from police station Adampur, District Hisar, were
on patrol duty and as such were present at police barrier at bye
pass, T point, on the road leading to village Siswal, thereat
Bhagwan Dass ASI (for short IO) received secret information,
according to which jeep trademark Marsha having soil colour,
bearing registration No.HR-24-D-5778 (for short jeep) in
which, two youth were sitting, had been gone out of order, near
Lakhpul, near Dhani (Farm house) falling within the territorial
jurisdiction of village Shishwal and was parked there at and it
was suspected of loading of some contraband. Having found the
information credible, the IO alongwith other officials
constituted the raiding party and proceeded to the destination
where Jeep was disclosed to be parked and when the IO reached
at Lakhpul, there at one person namely Kalu Ram son of Mukh
Ream, who was resident of village Adampur was mounting on
motor cycle, was joined into the raiding party. At the distance
of 8-10 acres from the Lakhpul (bridge) towards village
Shishwal police party saw the jeep and when it came near to the
jeep it saw one person was sitting on the driving seat of it and
was made to alight from the jeep and on enquiry he (accused
Subhash) disclosed his whereabouts and on further enquiry he
revealed to the IO that his brother in law (sister’s husband)
Criminal Misc. No.62-MA of 2009 3Dharampal alias Papli alias Pappu (accused Dharampal) was
accompanying him and both of them had come from Rajasthan.
Suddenly, jeep went out of order and accused Dharampal went
to Mandi Adampur to fetch Mechanic and he (accused Subhash)
was waiting for him.
Investigation officer told to the accused Subhash that he
was suspecting the jeep loaded with some contraband and he
served notice Ex.P2 under section 50 of the the Narcotic Drugs
& Psychotropic Substances Act, 1985 (for short Act), intending
to search the jeep and accused Subhash was left at option that if
he desired to get the jeep searched before the Magistrate or
Gazetted Officer then the gazetted officer or Magistrate could
be summoned at the site where the jeep was parked. However,
Subhash accused while giving reply Ex.P3 to the notice Ex.P2
reposed faith in the IO. Thereafter, the jeep was searched.
During the course of search of the jeep, five plastic bags, white
colour, were found loaded in it. All the five bags were untied
and it was found same were containing poppy husk. From each
of the five bags two representative samples measuring 200 gms
each were collected and on weighing residue in each bag it was
found 34 kgs 600 gms of poppy husk. All the 10 representative
samples and five bags containing poppy husk were converted
into sealed parcels under the seal of BD (Bhagwan Dass) and
after putting the seal, the seal was handed over to Kharak Singh
HC and the case property and jeep were taken into possession
Criminal Misc. No.62-MA of 2009 4by the police vide seizure memo/ recovery memo. Recovery
memo were prepared at the site. Accused Subhash was arrested
at the spot.”
On completion of investigation, final report was put in Court for
trial. Necessary documents were supplied to the respondents. They were
charge sheeted to which they pleaded not guilty and claimed trial.
Prosecution produced ten witnesses and also brought on record documentary
evidence to prove its case.
On conclusion of prosecution’s evidence, separate statements of
the respondents-accused were recorded under Section 313 Cr.P.C.
Incriminating material existing on record was put to them, which they denied,
claimed innocence and false implication. They also led evidence in defence.
The trial Court on appraisal of evidence, as led by the parties,
came to a conclusion that the prosecution has failed to prove guilt of the
respondents and accordingly, by giving them benefit of doubt, they were
acquitted of the charges framed against them. Hence, this application.
Counsel for the applicant has taken us through the contents of
the judgment and other documents placed on record. On perusal thereof, we
are not inclined to grant leave to file an appeal, to the applicant-State, against
the judgment under challenge.
As per case of the prosecution, at time of recovery of the case
property, ten representative samples were collected by the investigating
officer. Thereafter, those samples along with case property and Jeep were
produced before the SHO Police Station Adampur. However, during trial, SI
Rohtash Singh SHO has nowhere stated as to how many sample parcels were
Criminal Misc. No.62-MA of 2009 5
produced before him. As per affidavit (Ex.P1) filed by Prem Kumar (PW1),
he had received five sample parcels from Rameshwar Das (PW3) on
7.7.2005, for the purpose of depositing the same with Forensic Science
Laboratory. It was also so stated by Rameshwar Dass (PW3), however, this
witness has nowhere stated as to where remaining five sample parcels were
kept. Kharak Singh HC (PW2) has not supported case of the prosecution in
Court. This witness was declared hostile and cross-examined by the Public
Prosecutor, who failed to illicit from him anything favourable to the
prosecution. The respondents remained in custody throughout till disposal of
the case. The prosecution did not examine an independent witness, namely,
Kalu Ram by stating that he was won over. The trial Court has rightly
rejected above said reason and has rightly observed that non-examination of
an independent witness was fatal to the case of the prosecution. It has further
come on record that driver of the Jeep, in which police party has traveled to
and from the place of occurrence, was not joined in investigation. As per
case of the prosecution, respondent-Subhash was found sitting on steering
wheel of the Jeep, out of which alleged contraband was received. The trial
Court, by taking note of documents (Ex.D1 to Ex.D3) has rightly said that the
prosecution has failed to connect above said respondent with the Jeep in
question. As per evidence on record, Smt.Krishna Devi was registered owner
of the Jeep in question, however, she was not joined in the investigation. The
trial Court has further rightly come to the conclusion that the prosecution has
failed to prove that respondent Subhash was in conscious possession of the
contraband recovered. It has also come on record that when alleged
contraband was recovered, respondent Dharam Pal was not present at the
Criminal Misc. No.62-MA of 2009 6
spot. As per case of the prosecution, Dharam Pal had gone to a nearby town
to bring a mechanic to repair the Jeep. He was joined in investigation on a
statement made by the respondent Subhash, however, no such statement was
recorded. Disclosure statement made by respondent Dharam Pal has rightly
been ignored by the trial Court, having been made in police custody. The
trial Court has further held that there was a delay in depositing sample
parcels with the Forensic Science Laboratory. It has also come on record that
the process was initiated by the police party on receipt of a secret
information, however, PW10 has failed to show that information was reduced
into writing as was mandatory under the provisions of the Act. The trial
Court has rightly doubted the weighment of sample parcels.
Counsel for the applicant has failed to indicate any misreading
of evidence on the part of the Court below which may necessitate
interference by us. The view formed by the trial Court was justified.
Even in cases where two views are possible, ordinarily, the view
taken by the trial Court in favour of the accused is to be accepted.
Their Lordships of the Supreme Court in Allarakha K.Mansuri
v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case,
two views are possible, the one which favours the accused, has to be adopted
by the Court.
A Division Bench of this Court in State of Punjab v. Hansa
Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against
acquittal, has opined as under:-
“We are of the opinion that the matter would have to be
examined in the light of the observations of the Hon’ble
Criminal Misc. No.62-MA of 2009 7Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1)
SCC 166, which are that interference in an appeal against
acquittal would be called for only if the judgment under appeal
were perverse or based on a mis-reading of the evidence and
merely because the appellate Court was inclined to take a
different view, could not be a reason calling for interference.”
Dismissed.
(Jasbir Singh)
Judge
05.03.2009 (Jora Singh)
gk Judge