CRM-A No. 216-MA of 2008 1 In the High Court of Punjab and Haryana at Chandigarh CRM-A No. 216-MA of 2008 Date of decision: 4.9.2008 State of Haryana ....... Appellant Versus Mohinder Singh .......Respondent CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE SABINA Present: Mr.P.S.Sullar, DAG, Haryana. **** JUDGMENT JASBIR SINGH, J.(oral) The respondent was put to trial for commission of an offence under Section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for brevity 'the NDPS Act') for keeping in possession 60 kgs of poppy husk without any licence. Vide the impugned judgment dated 24.12.2007, he was acquitted of the charges framed against him. The applicant-State of Haryana has filed this application under Section 378 (3) of Cr.P.C. with a prayer for grant of leave to file an appeal against order mentioned above. The case of the prosecution, as noticed by the trial Court in para No.2 of the judgment, reads thus:- “On 19.4.2002 Khayali Ram ASI along with Attar Singh HC No. 250, Resham Singh Constable No.281, Lal Chand Constable No.726 and Dhan Raj Constable No.377 was present in the area of Bus stand Mehmara in Govt.vehicle bearing registration No.HR-22B/3809 driven CRM-A No. 216-MA of 2008 2 by Mangat Ram Constable No.307 in connection with routine patrolling duty where Khayali Ram ASI got the secret information to the effect that Mahender Singh, Chowkidar accused is indulging in the illicit business of the sale of poppy husk and he had brought huge quantity of poppy husk during the current night and he is planning to go to Punjab to sell the poppy husk and in case raid is conducted in his house huge quantity of poppy husk can be recovered after which Khayali Ram ASI along with other police officials formed a raiding party and started going towards the house of Mohender Singh and on the way Subhash Chander Panch son of Ram Ditta, resident of village Mehmara met them who was joined in the raiding party after which the raiding party went to the house of the accused and saw that two bags of poppy husk were lying in the court yard of the house of the accused who was sitting over them. Khayali Ram ASI got suspicion that the said plastic bags are having some intoxicant substance and, therefore, he gave the written notice under Section 50 of the NDPS Act to the accused stating therein that he is having suspicion that the plastic bags are having some intoxicant substance and, therefore, he intended to search the same plastic bags and if he so desires, the search of the said plastic bags CRM-A No. 216-MA of 2008 3 can be conducted in the presence of some Gazetted Officer or a Magistrate who can be called at the spot. The notice was duly read over and explained to the accused who affixed his thumb impression in the presence of the witnesses. The accused submitted the reply to the notice stating therein that he wants to get the search of the plastic bags done in the presence of some Magistrate after which Khayali Ram ASI sent a V.T.message to the Police Station Ratia for sending some Magistrate. After an hour, Hari Chand Bhatia, Naib Tehsildar along with his staff reached at the spot. ASI Khayali Ram narrated the facts of the case to the Naib Tehsildar who also asked the name of the accused after which Naib Tehsildar directed Khayali Ram ASI to conduct the search of the said bags after which Khayali Ram ASI opened the plastic bags and they were containing poppy husk out of which he took two samples of 100 gms. each from each bag while the remaining poppy husk on weighment was found to be 29.8 kgs in each bag. All the four samples and both the residues were converted into sealed parcels. Khayali Ram ASI affixed his seal KR on all the parcels and he handed over the seal KR after its use to Attar Singh HC No.250. Hari Chand Bhatia, Naib Tehsildar also affixed his seal HC on CRM-A No. 216-MA of 2008 4 all the parcels and he kept his seal with himself. All the parcels were taken into possession vide separate seizure memo prepared at the spot which was duly signed by the witnesses after which report Ex.P1 was lodged by Khayali Ram ASI with the Police Station Ratia on the basis of which FIR Ex.P2 was registered against the accused.” Thereafter, the samples separated from the alleged contraband were sent to Forensic Science Laboratory for examination. On receipt of the report and on completion of investigation, final report was presented in the Court for trial. The respondent-accused was charge sheeted to which he pleaded not guilty and claimed trial. The prosecution led oral as well as documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the respondent-accused was recorded under Section 313 Cr.P.C. in which he pleaded false implication. He also led evidence in defence. The trial Court, on appraisal of the evidence as led by both the parties, came to the conclusion that the prosecution has failed to prove guilt of the accused-respondent beyond shadow of reasonable doubt. Accordingly, he was acquitted of the charge framed against him. We have heard the learned State counsel and are satisfied that the view taken by the trial Court, as per the evidence on record, was possible. The prosecution has failed to connect case property with CRM-A No. 216-MA of 2008 5 the respondent/accused. It has come on record that at the time of trial, it was specifically admitted by Attar Singh, ASI (PW-5) that the case property produced in Court, at the time of trial, did not bear any seal and other particulars showing that it belonged to the present case. The trial Court has noticed as under:- “No reliance can be placed upon their statements in view of the fact that PW5 Attar Singh ASI in his cross- examination has admitted that case property present in the Court is not having any seal. He has further admitted that the case property is not having any particulars like FIR number etc. and, therefore, it can be said that the identity of the case property has not been established. Attar Singh ASI PW-5 in his cross-examination has stated that spring balance was hanged with a lathi and it was put on his shoulder and the other constable and he cannot tell his name while PW6 Hari Chand Bhatia Naib Tehsildar in his cross-examination has stated that the spring balance was hanged in a lathi which was hanged in a nail which was fitted in the wall. It is apparent that both the witnesses have given contradictory version regarding the weighment of the case property.” As per version of Hari Chand Bhatia, Naib Tehsildar (PW-6) he had come to the spot in a private jeep. However, in cross- examination, he has failed to tell registration number, colour of CRM-A No. 216-MA of 2008 6 vehicle and name of the driver of the jeep. This witness has further stated that the fare was paid by him from his pocket. However,the respondent has proved on record that the witness has not claimed the same from the department. He has also not claimed the T.A./D.A. for the visit in question. It was a case of secret information. It has come on record that the secret informer has not accompanied the police party up to the place of alleged recovery. Khayali Ram ASI (PW-7), in cross-examination has failed even to tell age of the informer. It was also admitted by this witness that the secret information was not reduced into writing and, it was also not conveyed to the higher officials, as is necessary under the provisions of the N.D.P.S. Act. Admittedly, an independent witness, though joined, was not examined in the Court. In view of facts noticed by the trial Court and as referred to above, we feel that the view taken by the trial Court, was possible. It is a case where, in view of evidence on record, it can safely be said that the prosecution has failed to prove guilt of the accused. Even in cases where two views are possible, after acquittal, in appeal benefit will go to the accused. 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. CRM-A No. 216-MA of 2008 7 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.” State counsel has failed to show any mis-reading of evidence on record. No ground is made out to grant leave to file an appeal. Dismissed. (JASBIR SINGH) JUDGE (SABINA) JUDGE September 04, 2008 anita