IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.175-MA of 2009(O&M) Date of Decision: 08.05.2009 Intelligence Officer, Narcotics Control Bureau Applicant Versus Tasveer Singh and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Rajiv Sharma, Advocate for the applicant ….. Jasbir Singh, J. Applicant has filed this application under Section 378(3) Cr.P.C. with a prayer for grant of leave to file an appeal against judgment dated 20.11.2007, acquitting the respondents of the charges framed against them. Record reveals that the respondents along with Dalip Singh alias Pappu son of Kartar Singh were put to trial for commission of offences under Sections 21, 23, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ((for short the Act). Vide judgment, under challenge, they were acquitted, however, their co-accused, namely, Dalip Singh @ Criminal Misc. No.175-MA of 2009(O&M) 2 Pappu was convicted and sentenced for commission of an offence under Section 21 of the Act. Hence, this application. We have heard counsel for the applicant and also gone through contents of the paper book with his assistance. It was case of the prosecution that on 7.4.2004, at about 5.30 PM, Dalip Singh co-accused of the respondents, was spotted near a check barrier, put up by officers of the Narcotic Control Bureau, in Amritsar. On suspicion, his search was conducted as per norms laid down under the Act and six packets of heroin weighing 3 kgs. each, were recovered from him. Sample of 5 gram from each packet was separated from the bulk. The sample parcels and the remaining contraband was taken in possession against recovery memos. Against the respondents, it was case of the prosecution, that on interrogation, above named Dalip Singh informed that the contraband was handed over to him by the respondents for supply it at Chandigarh. Said Dalip Singh was to receive an amount of Rs.50,000/- per kg for transportation of the contraband from Amritsar to Chandigarh. Statement of Dalip Singh was recorded, admitting manner and factum of recovery and also a fact that contraband was supplied to him by the respondents for onward sale at Chandigarh. Thereafter, as per provisions of Section 67 of the Act, upon notice, respondents also got recorded their statements, wherein they admitted that they had supplied contraband to Dalip Singh. On completion of investigation, final report was put in Court for trial. The respondents along with co-accused were charge sheeted, to which Criminal Misc. No.175-MA of 2009(O&M) 3 they pleaded not guilty and claimed trial. The prosecution produced oral as well as documentary evidence to prove its case. On conclusion of prosecution witnesses, statements of the respondents and their co-accused were recorded under Section 313 Cr.P.C., they denied the incriminating material existing on record against them, claimed innocence and false implication. They also led evidence in defence. The respondents denied that they had made any statement before the police officers, rather it was stated that their signatures were obtained on blank papers under duress. The trial Court, on appraisal of evidence, found both the respondents innocent and they were acquitted, however, their co-accused, namely, Dalip Singh was convicted and sentenced as found mentioned in earlier part of this order. In acquitting both the respondents, the trial Court has observed as under:- “I have considered the authorities relied upon by the learned defence counsel for Suba Singh and Tasveer Singh accused. Both these authorities are applicable in the present case. Their Lordships have observed that the accused cannot be convicted on confession made co-accused or naming out the accused by the co-accused during his confessional statement. D.W.6 Sukhwinder Kaur appeared in the witness box and proved the telegrams Ex.D1 and D2 with regard to involvement of her husband Tasveer Singh. For the purpose of conviction, strong, proof is required. Accused Dalip Singh has named out Criminal Misc. No.175-MA of 2009(O&M) 4 Tasveer Singh and Suba Singh in his statement Ex.PG which is not admissible under the law. The same can be used as a substantive piece of evidence. The other confessional statement s of the accused also cannot be used against them was per the authorities relied upon. So, there is nothing on the file to connect accused Suba Singh and Tasveer Singh with the commission of offence.” We feel that the finding given above is in consonance with evidence on record. Alleged statements made by both the accused have rightly been ignored by the trial Court, having been made before the police officer. Statement of an accused, made in police custody, implicating his co- accused, cannot be read in evidence. The finding recorded by the trial Court is perfectly justified and the same is as per evidence on record. 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 Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) Criminal Misc. No.175-MA of 2009(O&M) 5 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.” This application is also barred by limitation of 291 days. No ground has been made out to condone the same. Accordingly, the main application as well as application for condonation of delay are dismissed. (Jasbir Singh) Judge 08.05.2009 (Jora Singh) gk Judge