Crl. Misc. No. 198- MA of 2008
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Crl. Misc. No. 198- MA of 2008
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State of Haryana
Versus
Jagraj Singh and another
—
Present:- Mr. A.K. Jindal, Assistant Advocate
General, Haryana, for the applicant-appellant.
—
The aforesaid Criminal Miscellaneous
Application has been filed by the State, under Section 378(3)
of the Code of the Code of Criminal Procedure ( amended up
to date ) seeking leave of the Court to file an appeal against
the judgment of acquittal dated 15.02.2008, rendered by the
Special Judge, Sirsa.
2. The facts, in brief, are that 26.05.2006, at
about 6.15 PM, a Police party headed by Arun Kumar, Sub
Inspector of Police Station Odhan, was present, on the road,
leading from village Jandwala to Rajpura, for patrolling and
detection of crime. In the meanwhile, a motorcycle was seen
coming. The rider thereof, tried to reverse the same with a
view to escape. However, the rider and the pillion rider were
apprehended, along with the motorcycle. Jagraj Singh,
Crl. Misc. No. 198- MA of 2008
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accused, was driving the motorcycle, and Gurpreet Singh was
the pillion rider thereof. The Investigating Officer suspected
that they were carrying some contraband. The search of the
accused, was conducted in accordance with the provisions of
law, as a result whereof, 200 grams opium milk, from the
person of Jagraj Singh and 100 grams opium milk, from the
person of Gurpreet Singh, were recovered. Two samples of
10 grams each, from the opium milk, recovered from the
accused-respondents, were taken out and the remaining opium
milk was put into separate containers. The samples and the
containers, containing the remaining opium milk, were
converted into parcels, duly sealed, and taken into
possession, vide a separate recovery memo. The motorcycle
was also taken into possession, vide a separate recovery
memo. Ruqa was sent to the Police Station, on the basis
whereof, the FIR was recorded, against the accused-
respondents. The site plan was prepared. The accused were
arrested. The statements of the witnesses were recorded. After
the completion of investigation, the accused were challaned.
3. On their appearance, in the Court, the
accused were supplied the copies of documents, relied upon by
the prosecution. Charge under Section 18 of the Narcotic Drugs
and Psychotropic Substances Act, was framed against the
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accused, to which they pleaded not guilty and claimed judicial
trial.
4. The prosecution, in support of its case,
examined Inderjeet, H.C., (PW-1), Tajinder Singh, C.,
(PW-2), Arun Kumar, S.I., (PW-3), Kuldeep Kumar, EHC,
(PW-4), Mahinder Singh, HC, (PW-5), and Vinod Kumar,
Inspector, ( PW6 ). Thereafter, the Public Prosecutor for the
State, closed the prosecution evidence.
5. The statements of the accused, under
Section 313 of the Code of Criminal Procedure, were
recorded. They were put all the incriminating circumstances,
appearing against them, in the prosecution evidence. They
pleaded false implication. They, however, did not produce
any evidence in defence, and closed the same.
6. The trial Court, after hearing the Counsel
for the parties and on going through the evidence, produced
by the prosecution, acquitted the accused-respondents, on the
grounds that no independent witness was joined by the
Investigating Officer, despite availability and as such the
possibility of planting the alleged minor recovery of opium
milk, could not be ruled out; that there was a delay of six days
in sending the sample parcels to the office of the Forensic
Science Laboratory, which remained unexplained, and as such
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the possibility of tampering with the same could not be ruled
out when there was no other evidence to prove the link
evidence; that the statement of Vinod Kumar, Inspector,
( PW-6 ), before whom the case property and the sample
parcels were allegedly produced, was not recorded by the
Investigating Officer and, as such, it could be said that the
same were not produced before him; that no effort was made,
to trace the owner of the motorcycle, so as to ascertain the
origin of the opium milk; that the material contradictions,
cropped up in the evidence of the prosecution witnesses,
which remained unexplained and, as such, its case became
doubtful; that the prosecution case was unnatural and
improbable; and that no valid offer under Section 50 of the
Act was given.
7. I have heard the Counsel for the applicant-
appellant, and have gone through the evidence and record of
the case, carefully.
8. The Counsel for the applicant-appellant
submitted that the grounds, taken up by the trial Court, for
acquitting the accused-respondents, cannot be said to be valid.
He further submitted that the trial Court fell into an error, in
acquitting the accused-respondents, on the basis of flimsy
grounds. He further submitted that non-joining of an
Crl. Misc. No. 198- MA of 2008
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independent witness, did not at all affect the merits of the
case. He further submitted that, even the delay, in sending the
sample parcels, to the office of the Forensic Science
Laboratory, did not cause any dent, in the case of the
prosecution. He further submitted that the offer given in this
case, was valid. It was also submitted by him that non-
recording of the statement of Vinod Kumar, SI/SHO ( PW-6 ),
did not at all affect the merits of the case. He further
submitted that non-tracing the owner of the motorcycle, also
did not cause any dent in the case of the prosecution. He
further submitted that the contradictions which cropped up,
in the statements of the prosecution witnesses, as noted by the
trial Court in its judgment, could not be said to be material,
but, on the other hand, were natural and, as such, the case of
the prosecution, did not become doubtful. Accordingly, the
prayer referred to above, in para 1 above, was made.
9. After giving my thoughtful consideration, to the
contentions, raised by the Counsel for the applicant-appellant,
in my considered opinion, the same do not carry any
substance. The perusal of the judgment of the trial Court, the
evidence, and record of the case clearly goes to reveal that
the same is based on the correct appreciation of evidence and
law on the point. Since the recovery allegedly effected from
Crl. Misc. No. 198- MA of 2008
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the accused-respondents, in the instant case, could be
characterized as minor and the chances of plantation of the
same could not be ruled out, keeping in view the stringent
punishment, provided by the Act, the trial Court, was right in
coming to the conclusion, that, on account of the infirmities,
referred to above, it was a fit case, in which the acquittal of
the accused-respondents, should be recorded. The judgment
of the trial Court, being based on the correct appreciation of
evidence, led by the prosecution, and law on the point, does
not suffer from serious infirmity. The contradictions,
cropping up, in the evidence of the prosecution witnesses,
could not be said to be minor, in nature, or insignificant. The
other points, taken up by the trial Court, in recording acquittal
of the accused-respondents, could also be said to be valid,
persuading this Court, to come to the same conclusion, as was
arrived at by the trial Court. It is settled principle of law, that
the Appellate Court, while deciding the application for grant
or refusal of leave to institute an appeal, against the judgment
of acquittal, is required to see, as to whether, the same suffers
from perversity mis-reading or mis-appreciation of the
evidence produced, inherent infirmities and lacunae. If the
two conclusions are possible, on the basis of the evidence,
one going in favour of the accused-respondents, and the other
Crl. Misc. No. 198- MA of 2008
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in favour of the prosecution, then the former is required to
prevail over the latter. In those circumstances, no leave can be
granted to institute an appeal, against the judgment of
acquittal, rendered by the trial Court. The judgment of
acquittal, recorded by the trial Court, does not suffer from
inherent infirmities, lacunae, perversity, irregularities or
illegalities, persuading the Court, to differ from the
conclusion, arrived at, by it. In this view of the matter, no
ground is made out, for the grant of leave to file an appeal,
against the judgment of acquittal dated 15.02.2008, rendered
by the trial Court.
10. For the reasons recorded herein-before, criminal
miscellaneous No. 198-MA of 2008 is dismissed.
October 22 ,2008 ( Sham Sunder )
dinesh Judge