IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.352-MA of 2008 Date of Decision: 16.04.2009 State of Punjab Applicant Versus Satinder Parkash Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.A.S.Virk, Additional Advocate General, Punjab for the applicant Mr.Yogesh Goel and Mr.Deepak Gupta, Advocates For the respondent ….. Jasbir Singh, J. State of Punjab 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 1.3.2008, passed by the Judge Special Court at Ludhiana, acquitting the respondent of the charges framed against him. After issuance of notice of motion, record of the lower Court was also requisitioned. Counsel for the parties heard. Criminal Misc. No.352-MA of 2008 2 It was case of the prosecution that on 7.9.2004, the respondent was found in possession of two kgs. 600 grams of opium without any permit. Story of the prosecution in brief is that “on 7.9.2004, SI Gurbans Singh, of P.S. Basti Jodhewal Ludhiana along with other police officials was present near BSA Dyeing Factory situated in New Madhopuri near Budha ‘Dariya’ in connection with checking of suspected persons and vehicles and was checking vehicle of Tarsem Singh, when accused Satinder Parkash came on motor-cycle from the side of bridge canal minor New Madhopuri, who was having a ‘Pithu bag’ on his back but on seeing the police party he suddenly stopped his motor-cycle and tried to trun back but in the meanwhile, motor-cycle stopped and he was apprehended on the basis of suspicion by SI Gurbans Singh, who is the investigating officer (I.O.) of this case, with the help of other officials and accused told his name and address on the inquiry of the I.O.; that I.O. told the accused that he is to search the accused and his bag and accused have a legal right to give the search in the presence of some Magistrate or Gazetted Officer on which accused opted to give the search in the presence of some gazetted officer and a non-consent memo Ex.PA of the accused was recorded to this effect; that I.O. requested DSP Satbir Singh Atwal on wireless set to reach at the spot, who after some time reached the spot and introduced himself as DSP (Rural) and a Gazetted Officer of Punjab Police and told the accused that search of the bag is to be conducted and if accused likes then some other Gazetted Officer or Magistrate can be called at the spot but the accused reposed confidence in the DSP and tendered no objection if the search is conducted in the presence of the DSP and thereupon a consent memo Ex.PB was prepared to this effect. Criminal Misc. No.352-MA of 2008 3 Both the memos were signed by the accused and attested by the witnesses; that thereafter I.O. took the search of the Pithu bag on the direction of the DSP and recovered opium contained in a black colour paper bag from the pithu bag; that I.O. separated two samples of opium of 10 gram each and remaining opium was weighed and found to be 2.580 kgs. And its separate parcels was prepared in a plastic dibba and then all the parcels were sealed by the I.O. with his seal bearing initials ‘GS’ and DSP also sealed the parcels with his seal bearing initials ‘SS’; that case property was taken into possession vide recovery memo Ex.PC which was attested by the witnesses and seal after use was handed over to Tarsem Singh public witness, while DSP retained his own seal; that as the accused was found in possession of 2.600 k.grams of opium without any permit, therefore, I.O. sent ruqa Ex.PK to the police station on the basis of which, formal FIR Ex.PK/1 was registered; that I.O. prepared rough site plan Ex.PJ of the place of recovery. The motor-cycle on which accused was coming was without number and the same was taken into possession vide separate recovery memo Ex.PD; that currency notes of Rs.150/- were recovered from the Jamatalshi of the accused and the same were taken into possession vide Jamatalashi memo Ex.PE, grounds of arrest were intimated to the accused and a memo Ex.PF was prepared to this effect, information about the arrest of the accused was given to his relations and a memo Ex.PH was prepared to this effect.” Thereafter, the investigating officer recorded statements of the witnesses. On his return to the police station, he handed over the case property to MHC. The case property was also produced in the Court of concerned Magistrate on 8.9.2004. Sample parcels were sent to the Chemical Criminal Misc. No.352-MA of 2008 4 Examiner for analysis. Vide report (Ex.PL), contents of the parcels were declared as opium. On completion of investigation, final report was put in Court. The respondent was charge sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced five witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him which he denied, pleaded innocence and false implication. He also led evidence in defence. On appraisal of evidence, as led by the parties, the trial Court came to a conclusion that the prosecution has failed to establish guilty of the respondent beyond a shadow of reasonable doubt. Defence put up by the respondent-accused was held to be reliable and accordingly he was acquitted vide the impugned judgment. After hearing counsel for the parties, we are not inclined to interfere in the judgment of acquittal passed by the trial Court. The trial Court has rightly held that the respondent was not apprehended in the manner, in which he was shown to have been arrested. As per case of the prosecution, occurrence had taken place on 7.9.2004. Perusal of statements made by ASI Harbans Singh (PW1) and SI Gurbans Singh (PW2) makes it very clear that on the above said date the respondent –accused was arrested between 8.45 AM and 10.15 AM. He was traveling on a motorcycle along with a bag, containing contraband, at his back. Criminal Misc. No.352-MA of 2008 5 By taking note of statement made by DW1 Ved Raj Senior Section Supervisor of Central Telegraphs Office, Ludhiana, telegram (Ex.D1) and receipt (Ex.D2), the trial Court rightly came to a conclusion that the respondent-accused was arrested prior to 7.9.2004 i.e. the date of alleged occurrence. To say so reliance was placed upon a telegram sent by brother of the respondent. We may have discarded sending of that telegram, by treating it as creating pre-defence, however, when we look at the contents of document (Ex.D1), we are convinced that it was a genuine telegram. Contents of the above said document read as under:- “My brother Satinder Parkash was working with wine contractor at Dehlon as salesman for last many years. There was a dispute between employer Ponti Chadha and my brother regarding salary. After giving severe beatings to my brother by the wine contractor on 3.9.2004, he was got falsely implicated in false criminal case at police station Basti Jodhewal Ludhiana. Kindly look into the matter and got release my brother.” Had it been an attempt to create evidence, sender of the telegram was not expected to level allegations against official of a particular police station. Contrary to this, in the present telegram, it was specifically mentioned that the respondent-accused was arrested on 3.9.2004 by the officials of police Station Basti Jodhewal, Ludhiana. Copy of the telegram was sent to the Chief Minister Punjab, Hon’ble the Chief Justice of this Court and Chairman, Punjab Human Rights Commission at Chandigarh. The defence has also proved on record that copy of that telegram was received by Criminal Misc. No.352-MA of 2008 6 the Punjab Human Rights Commission at Chandigarh and an order was passed thereon. Pawan Kumar (DW2) has specifically stated that he had sent the telegram in question. He has further stated that the respondent-accused was arrested at the instance of his employer, a liquor trader. One Tarsem was cited as an independent witness by the prosecution. He was not examined having been won over by the accused. He appeared as DW3 and specifically stated that he was not present at the place of occurrence, as alleged by the prosecution. It has also come on record that the prosecution has failed to bring any document on record to prove that motorcycle in question was the ownership of the respondent-accused. In passing the judgment under challenge, the trial Court has noticed material contradictions in the statements made by PW1 ASI Harbans Singh, PW2 SI Gurbans Singh and PW5 DSP Satbir Singh. By taking note of those discrepancies, in paragraph No.14 of the impugned judgment, the trial Court has rightly held that the story of the prosecution was not reliable. Counsel for the applicant has failed to indicate any misreading of evidence on the part of the trial Court, which may necessitate interference by us. On perusal of trial Court’s record, we are convinced that opinion formed by the Court below 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. Criminal Misc. No.352-MA of 2008 7 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) 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 16.04.2009 (Jora Singh) gk Judge