{"id":82684,"date":"2009-03-05T00:00:00","date_gmt":"2009-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-subhash-and-others-on-5-march-2009"},"modified":"2018-11-27T23:34:19","modified_gmt":"2018-11-27T18:04:19","slug":"state-of-haryana-vs-subhash-and-others-on-5-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-subhash-and-others-on-5-march-2009","title":{"rendered":"State Of Haryana vs Subhash And Others on 5 March, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
State Of Haryana vs Subhash And Others on 5 March, 2009<\/div>\n
               IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n\n                                  CHANDIGARH\n\n\n\n\n                                          Criminal Misc. No.62-MA of 2009\n                                              Date of Decision: 05.03.2009\n\n\nState of Haryana\n\n                                                                   Applicant\n                                    Versus\nSubhash and others\n                                                                 Respondents\n\nCORAM:- HON'BLE MR. JUSTICE JASBIR SINGH\n        HON'BLE MR. JUSTICE JORA SINGH\n\n\nPresent:     Mr.K.S.Godara, DAG Haryana for the applicant-State\n\n                            .....\n\n\nJasbir Singh, J.\n<\/pre>\n
             By filing this application, prayer has been made by the applicant<\/p>\n
for grant of leave to file an appeal against judgment dated 23.10.2008, vide<\/p>\n
which, the respondents were acquitted of the charges framed against them<\/p>\n
under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,<\/p>\n
1985 (in short, the Act).\n<\/p>\n
             Heard.\n<\/p>\n
             It was allegation against the respondents that on 28.6.2005, they<\/p>\n
were found in possession of 175 kgs. Of poppy husk without any licence.<\/p>\n
             Case of the prosecution, as noticed by the trial Court in its<\/p>\n
judgment, under challenge, reads thus:-\n<\/p>\n
 Criminal Misc. No.62-MA of 2009                             2<\/span><\/p>\n
                “Brief facts of the prosecution case, are on 28.6.2005 at<\/p>\n
          about 7.05 p.m. Bhagwan Dass ASI alongwith Kharak Singh HC<\/p>\n
          No.1439, Mainpal Constable No.456, Chailu Ram constable<\/p>\n
          No.1016, all from police station Adampur, District Hisar, were<\/p>\n
          on patrol duty and as such were present at police barrier at bye<\/p>\n
          pass, T point, on the road leading to village Siswal, thereat<\/p>\n
          Bhagwan Dass ASI (for short IO) received secret information,<\/p>\n
          according to which jeep trademark Marsha having soil colour,<\/p>\n
          bearing registration No.HR-24-D-5778 (for short jeep) in<\/p>\n
          which, two youth were sitting, had been gone out of order, near<\/p>\n
          Lakhpul, near Dhani (Farm house) falling within the territorial<\/p>\n
          jurisdiction of village Shishwal and was parked there at and it<\/p>\n
          was suspected of loading of some contraband. Having found the<\/p>\n
          information   credible,   the   IO   alongwith   other   officials<\/p>\n
          constituted the raiding party and proceeded to the destination<\/p>\n
          where Jeep was disclosed to be parked and when the IO reached<\/p>\n
          at Lakhpul, there at one person namely Kalu Ram son of Mukh<\/p>\n
          Ream, who was resident of village Adampur was mounting on<\/p>\n
          motor cycle, was joined into the raiding party. At the distance<\/p>\n
          of 8-10 acres from the Lakhpul (bridge) towards village<\/p>\n
          Shishwal police party saw the jeep and when it came near to the<\/p>\n
          jeep it saw one person was sitting on the driving seat of it and<\/p>\n
          was made to alight from the jeep and on enquiry he (accused<\/p>\n
          Subhash) disclosed his whereabouts and on further enquiry he<\/p>\n
          revealed to the IO that his brother in law (sister’s husband)
\n Criminal Misc. No.62-MA of 2009                              3<\/span><\/p>\n
          Dharampal alias Papli alias Pappu (accused Dharampal) was<\/p>\n
          accompanying him and both of them had come from Rajasthan.<\/p>\n
          Suddenly, jeep went out of order and accused Dharampal went<\/p>\n
          to Mandi Adampur to fetch Mechanic and he (accused Subhash)<\/p>\n
          was waiting for him.\n<\/p><\/blockquote>\n
                Investigation officer told to the accused Subhash that he<\/p>\n
          was suspecting the jeep loaded with some contraband and he<\/p>\n
          served notice Ex.P2 under section 50 of the the Narcotic Drugs<\/p>\n
          & Psychotropic Substances Act, 1985 (for short Act), intending<\/p>\n
          to search the jeep and accused Subhash was left at option that if<\/p>\n
          he desired to get the jeep searched before the Magistrate or<\/p>\n
          Gazetted Officer then the gazetted officer or Magistrate could<\/p>\n
          be summoned at the site where the jeep was parked. However,<\/p>\n
          Subhash accused while giving reply Ex.P3 to the notice Ex.P2<\/p>\n
          reposed faith in the IO. Thereafter, the jeep was searched.<\/p>\n
          During the course of search of the jeep, five plastic bags, white<\/p>\n
          colour, were found loaded in it. All the five bags were untied<\/p>\n
          and it was found same were containing poppy husk. From each<\/p>\n
          of the five bags two representative samples measuring 200 gms<\/p>\n
          each were collected and on weighing residue in each bag it was<\/p>\n
          found 34 kgs 600 gms of poppy husk. All the 10 representative<\/p>\n
          samples and five bags containing poppy husk were converted<\/p>\n
          into sealed parcels under the seal of BD (Bhagwan Dass) and<\/p>\n
          after putting the seal, the seal was handed over to Kharak Singh<\/p>\n
          HC and the case property and jeep were taken into possession
\n Criminal Misc. No.62-MA of 2009                                    4<\/span><\/p>\n
             by the police vide seizure memo\/ recovery memo. Recovery<\/p>\n
             memo were prepared at the site. Accused Subhash was arrested<\/p>\n
             at the spot.”<\/p><\/blockquote>\n
             On completion of investigation, final report was put in Court for<\/p>\n
trial. Necessary documents were supplied to the respondents. They were<\/p>\n
charge sheeted to which they pleaded not guilty and claimed trial.<\/p>\n
Prosecution produced ten witnesses and also brought on record documentary<\/p>\n
evidence to prove its case.\n<\/p>\n
             On conclusion of prosecution’s evidence, separate statements of<\/p>\n
the respondents-accused were recorded under Section 313 Cr.P.C.<\/p>\n
Incriminating material existing on record was put to them, which they denied,<\/p>\n
claimed innocence and false implication. They also led evidence in defence.<\/p>\n
             The trial Court on appraisal of evidence, as led by the parties,<\/p>\n
came to a conclusion that the prosecution has failed to prove guilt of the<\/p>\n
respondents and accordingly, by giving them benefit of doubt, they were<\/p>\n
acquitted of the charges framed against them. Hence, this application.<\/p>\n
             Counsel for the applicant has taken us through the contents of<\/p>\n
the judgment and other documents placed on record. On perusal thereof, we<\/p>\n
are not inclined to grant leave to file an appeal, to the applicant-State, against<\/p>\n
the judgment under challenge.\n<\/p>\n
             As per case of the prosecution, at time of recovery of the case<\/p>\n
property, ten representative samples were collected by the investigating<\/p>\n
officer. Thereafter, those samples along with case property and Jeep were<\/p>\n
produced before the SHO Police Station Adampur. However, during trial, SI<\/p>\n
Rohtash Singh SHO has nowhere stated as to how many sample parcels were
\n Criminal Misc. No.62-MA of 2009                                 5<\/span><\/p>\n
produced before him. As per affidavit (Ex.P1) filed by Prem Kumar (PW1),<\/p>\n
he had received five sample parcels from Rameshwar Das (PW3) on<\/p>\n
7.7.2005, for the purpose of depositing the same with Forensic Science<\/p>\n
Laboratory. It was also so stated by Rameshwar Dass (PW3), however, this<\/p>\n
witness has nowhere stated as to where remaining five sample parcels were<\/p>\n
kept. Kharak Singh HC (PW2) has not supported case of the prosecution in<\/p>\n
Court. This witness was declared hostile and cross-examined by the Public<\/p>\n
Prosecutor, who failed to illicit from him anything favourable to the<\/p>\n
prosecution. The respondents remained in custody throughout till disposal of<\/p>\n
the case. The prosecution did not examine an independent witness, namely,<\/p>\n
Kalu Ram by stating that he was won over. The trial Court has rightly<\/p>\n
rejected above said reason and has rightly observed that non-examination of<\/p>\n
an independent witness was fatal to the case of the prosecution. It has further<\/p>\n
come on record that driver of the Jeep, in which police party has traveled to<\/p>\n
and from the place of occurrence, was not joined in investigation. As per<\/p>\n
case of the prosecution, respondent-Subhash was found sitting on steering<\/p>\n
wheel of the Jeep, out of which alleged contraband was received. The trial<\/p>\n
Court, by taking note of documents (Ex.D1 to Ex.D3) has rightly said that the<\/p>\n
prosecution has failed to connect above said respondent with the Jeep in<\/p>\n
question. As per evidence on record, Smt.Krishna Devi was registered owner<\/p>\n
of the Jeep in question, however, she was not joined in the investigation. The<\/p>\n
trial Court has further rightly come to the conclusion that the prosecution has<\/p>\n
failed to prove that respondent Subhash was in conscious possession of the<\/p>\n
contraband recovered.     It has also come on record that when alleged<\/p>\n
contraband was recovered, respondent Dharam Pal was not present at the
\n Criminal Misc. No.62-MA of 2009                                  6<\/span><\/p>\n
spot. As per case of the prosecution, Dharam Pal had gone to a nearby town<\/p>\n
to bring a mechanic to repair the Jeep. He was joined in investigation on a<\/p>\n
statement made by the respondent Subhash, however, no such statement was<\/p>\n
recorded. Disclosure statement made by respondent Dharam Pal has rightly<\/p>\n
been ignored by the trial Court, having been made in police custody. The<\/p>\n
trial Court has further held that there was a delay in depositing sample<\/p>\n
parcels with the Forensic Science Laboratory. It has also come on record that<\/p>\n
the process was initiated by the police party on receipt of a secret<\/p>\n
information, however, PW10 has failed to show that information was reduced<\/p>\n
into writing as was mandatory under the provisions of the Act. The trial<\/p>\n
Court has rightly doubted the weighment of sample parcels.<\/p>\n
             Counsel for the applicant has failed to indicate any misreading<\/p>\n
of evidence on the part of the Court below which may necessitate<\/p>\n
interference by us. The view formed by the trial Court was justified.<\/p>\n
             Even in cases where two views are possible, ordinarily, the view<\/p>\n
taken by the trial Court in favour of the accused is to be accepted.<\/p>\n
             Their Lordships of the Supreme Court in Allarakha K.Mansuri<\/p>\n
v. State of Gujarat,<\/a> 2002(1) RCR (Criminal) 748, held that where, in a case,<\/p>\n
two views are possible, the one which favours the accused, has to be adopted<\/p>\n
by the Court.\n<\/p>\n
             A Division Bench of this Court in State of Punjab v. Hansa<\/p>\n
Singh,<\/a> 2001(1) RCR (Criminal) 775, while dealing with an appeal against<\/p>\n
acquittal, has opined as under:-\n<\/p>\n
             “We are of the opinion that the matter would have to be<\/p>\n
             examined in the light of the observations of the Hon’ble
\n Criminal Misc. No.62-MA of 2009                                  7<\/span><\/p>\n
             Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1)<\/p>\n
             SCC 166, which are that interference in an appeal against<\/p>\n
             acquittal would be called for only if the judgment under appeal<\/p>\n
             were perverse or based on a mis-reading of the evidence and<\/p>\n
             merely because the appellate Court was inclined to take a<\/p>\n
             different view, could not be a reason calling for interference.”<\/p>\n
             Dismissed.<\/p><\/blockquote>\n
\n\n                                             (Jasbir Singh)\n                                                Judge\n\n\n\n05.03.2009                                    (Jora Singh)\ngk                                               Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court State Of Haryana vs Subhash And Others on 5 March, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-82684","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nState Of Haryana vs Subhash And Others on 5 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-subhash-and-others-on-5-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Haryana vs Subhash And Others on 5 March, 2009 - 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