Crl.Misc. No.A. 10-MA of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.A. 10-MA of 2010 DATE OF DECISION:APRIL 06, 2010 State of Punjab .....APPLICANT Versus Balwinder Singh and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.Rajesh Bhardwaj, Addl.A.G.,Punjab, for the applicant. .. SATISH KUMAR MITTAL, J. The State of Punjab has filed this application for grant of leave to appeal under Section 378(3) Cr. P.C. against the judgment dated 20.4.2009 passed by the Judge, Special Court, Ludhiana, whereby respondents Balwinder Singh @ Bindri and Sukhdev Singh alias Sukha have been acquitted of the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'). In this case, respondents Balwinder Singh @ Bindri and Sukhdev Singh alias Sukha were tried by the Judge, Special Court, Ludhiana for having committed the offence punishable under Section 15 of the Act, on the allegations of having illegal possession of 70 Kgs. of poppy husk. As per the prosecution version, on 11.10.2004, a police party headed by SI Dharam Pal, who was posted as SHO, Police Station Raikot, was going from Raikot to villages Johlan etc. in government vehicle in Crl.Misc. No.A. 10-MA of 2010 -2- connection with patrolling and checking of suspected persons. At about 5.30 p.m., they noticed two young men coming on a scooter carrying in their middle two fatty gunny bags from the side of village Bhaini Barringa. On seeing the police party, they got perplexed and tried to turn back the scooter, but the scooter fell on the ground along with gunny bags. Out of them, one person, namely, Sukhdev Singh, who was already known to HC Jagroop Singh, had run away from the spot and the second person was apprehended, who later on disclosed his name as Balwinder Singh. He also disclosed the name of the person who had run away as Sukhdev Singh. Then, on the offer having been made by SI Dharam Pal to the accused about his right to be searched in the presence of a Gazetted Officer or a Magistrate, accused Balwinder Singh consented that he could be searched by SI Dharam Pal. Thereafter, on search of two bags, poppy husk was recovered, which came to be 35 Kgs. in each bag. From the two gunny bags, two samples of poppy husk weighing 100 grams each were taken after completing the formalities. Thereafter, the samples as well as gunny bags with remaining poppy husk were sealed. The RC of the scooter was also taken into possession. Ruqa was sent to Police Station for registration of the case, on the basis of which formal FIR was registered. The case property was got deposited with ASI Jasmer Singh, the officiating SHO. Thereafter, the samples were sent to Chemical Examiner, Patiala. Accused Sukhdev Singh was arrested on 16.10.2004. After completion of the investigation and and on receipt of report (Ex.PY) of Asstt. Chemical Examiner, Patiala, the challan against both the accused was presented in the Court, and charge under Section 15 of the Act was framed against them, to which they pleaded not guilty and claimed trial. Crl.Misc. No.A. 10-MA of 2010 -3- In support of its case, the prosecution examined five witnesses. In their statements recorded under Section 313 Cr.P.C., both the accused denied all the incriminating evidence put to them and took the stand that they were falsely implicated in this case. The trial Court after considering the evidence led by the prosecution, acquitted both the accused while coming to the conclusion that the evidence led by the prosecution is not sufficient to prove the charge levelled against both the accused beyond the shadow of reasonable doubt. Against the said judgment, the State has preferred the appeal with an application to grant leave. We have heard the learned counsel for the State and gone through the impugned judgment. The trial Court has acquitted both the accused from the charges levelled against them while recording the following findings:- (a) That it is unbelievable that two persons can carry two fatty gunny bags containing poppy husk of 35 kgs. each, amidst themselves on a scooter. (b) The story put forth by the prosecution that one of the accused, namely, Sukhdev Singh had run away from the spot, is also not believable because seven police officials along with official jeep were present at the spot. (c) Even the identity of Sukhdev Singh has not been established because HC Jagroop Singh, who identified him as Sukhdev Singh, as he was known to him earlier, was not examined by the prosecution in evidence. (d) The statement of accused Balwinder Singh, who allegedly Crl.Misc. No.A. 10-MA of 2010 -4- disclosed that the person who had managed to escape was Sukhdev Singh, was not relied upon on the principle that the statement of a co-accused with regard to identity of another accused, cannot be read into evidence against another accused. (e) The scooter on which the poppy husk was allegedly transported was not produced at the time of examination of any of the witnesses. None of the accused was the owner of the scooter. According to the Registration Certificate of the scooter, one Baljit Singh son of Bhag Singh was the owner of the scooter. Neither during investigation he was associated nor he was produced as a prosecution witness to explain that he had given the scooter to both the accused. (f) It has been found as a fact that there were some over-writings in FIR number in the memo of recovery Ex.PB, rough site-plan Ex.PG and memo of grounds of arrest Ex.PE. On those facts, the trial Court found that these over-writings create a doubt as to the recovery of the contraband from the accused and preparation of these documents at the alleged place of recovery. (g) In spite of the admitted fact that the place of occurrence was a thorough fare, no independent witness was joined by the police party on the pretext that nobody was ready to join them. Name of such person was neither disclosed nor any action was taken against such person. On these factors, it was concluded that in such circumstances the seizure of the case property became highly doubtful. Crl.Misc. No.A. 10-MA of 2010 -5- (h) It was further held that the prosecution has failed to prove the link evidence. The samples, which were taken on 11.10.2004, were sent for chemical examination on 29.10.2004. The delay in sending the said samples has not been satisfactorily explained. The prosecution tried to explain that on 18.10.2004 the samples were handed over to PW2-Constable Jagtar Singh by HC Rajwinder Singh along with sample seal chit. He got the same forwarded from the office of SSP and deposited the same with him on the same day. But it has not been explained how the samples again remained with Asstt. Mohr. HC Jagvarinderpal Singh as it has come in evidence that Asstt. Mohr. HC Jagvarinderpal Singh again handed over the samples to PW2-Constable Jagtar Singh on 26.10.2004 for depositing the same in the office of Chemical Examiner. It has been stated that due to some objections, the samples could not be deposited in the office of Chemical Examiner, Patiala. Therefore, those articles were again re-deposited with MHC. On 29.10.2004, he again took the sample parcels along with the sample seal and deposited the same in the office of Chemical Examiner, Patiala. In cross-examination, he had admitted that no objection was raised in writing by the office of Chemical Examiner, Patiala. Taking into consideration all these factors, the trial Court came to the conclusion that the possibility of tampering the sample parcels on transit to the office of Chemical Examiner, Patiala, cannot be ruled out. During the course of arguments, learned counsel for the Crl.Misc. No.A. 10-MA of 2010 -6- applicant-State could not successfully assail the aforesaid findings/observation given by the trial Court, being contrary to the record or based on surmises and conjectures. Therefore, in our opinion, the trial Court, while taking into consideration the cumulative effect of the observations, as indicated above, has rightly appreciated the evidence led by the prosecution and then came to the conclusion that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. In our opinion, the view taken by the trial Court in the case, on the basis of the evidence led by the prosecution, is the only possible view and no second view can be taken. In view of the above, we do not find any ground to grant leave to appeal against the judgment dated 20.4.2009 passed by the Judge, Special Court, Ludhiana. Hence, the application is dismissed. (SATISH KUMAR MITTAL) JUDGE April 06, 2010 ( JORA SINGH ) vkg JUDGE