IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.189 MA of 2009 Date of decision: 14.10.2009. State of Punjab ......Applicant Vs. Rana and others ...Respondents CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH. HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.D.S.Brar, Deputy Advocate General, Punjab, for applicant-appellant. Mr.Ashok Kumar Sharma, Advocate, for the respondents. **** DAYA CHAUDHARY, J. 1. The State of Punjab has filed the present application under Section 378(3) of the Code of Criminal Procedure for grant of leave to appeal against judgment dated 18.11.2008 passed by Judge, Special Court, Ludhiana, in Sessions Case No.458 dated 10.9.2004 titled State v. Rana and others, vide which all the accused-respondents, namely, Rana, Amarjit Singh, Surinder Singh alias Chhinda, Kulwinder Kaur and Nirmal Singh have been acquitted of the charge framed under Section 15 of Narcotic Drugs and Psychotropic Substances Act ( for short, “the Act”). 2. Briefly, the facts of the prosecution case are that on 12.6.2004, a police party headed by ASI Mahavir Singh was holding a Naka at T Point, Lalheri Chowk, village Lalhari and there was another police party headed by SI Balwinder Singh, SHO Police Station Sadar Khanna, was also holding Naka. Both the Nakas were being held under the supervision of Crl.Misc.No.189 MA of 2009 [2] Jhilman Singh DSP Khanna. At about 2.30 a.m. a Tata Sumo bearing registration No. PB-32A-4481 came from the side of Khanna which was stopped by SI Balwinder Singh and search was conducted. During that period at about 2.45 a.m., another Tata - 407 bearing registration No. PB- 31C-9410 came from the side of Khanna, which was also stopped by ASI Mahavir Singh by raising torch light. The driver of Tata-407 ran away from the spot and four persons were found sitting on the gunny bags lying in the vehicle. Some contraband was suspected by the police party. DSP Jhilman Singh was also informed by ASI Mahavir Singh regarding recovery of contraband who disclosed his identity and accused were given option to get themselves searched either before a gazetted officer or Magistrate but they reposed confidence in DSP Jhilman Singh and their separate consent memos Ex.PB, PC, PD and PE were prepared, duly thumb marked by the respective accused and attested by the DSP and HC Sham Lal. All the bags were opened and checked wherein poppy husk was found. From each of the bags two samples of 250 grams each were separated and the remaining in each bag on weighment came out to be 27 kgs.500 grams. All the samples and remaining bulk were sealed by ASI Mahavir Singh with his seal bearing impression 'MS' and by DSP with his seal bearing impression 'JS' . The seals after use were handed over to HC Sham Lal. The entire case property was taken into possession vide memo Ex.PF. Ruqa Ex.PN was sent through HC Tarwinder Kumar, on which basis formal FIR Ex.PN/1 was recorded by ASI Sikandar Singh and rough site plan Ex.PN/2 was prepared. All the accused-respondents along with case property were produced before SI Balwinder Singh in Police Station Crl.Misc.No.189 MA of 2009 [3] Sadar Khanna and the case property was sealed after verifying the facts. The samples and other material were deposited with MHC Gian Singh. On the same day, the case property was produced before the Ilaqa Magistrate, JMIC Khanna. Other formalities were completed and statements of witnesses were also recorded. After completion of the investigation and on receipt of report of Chemical Examiner, challan against the accused was presented in the Court. 3. Accused-respondent Amrik Singh was juvenile and his trial was conducted separately in the Juvenile Court. 4. Copies of documents were supplied to all the accused and they were charge-sheeted under Section 15 of the Act. They pleaded not guilty to the charge and claimed trial. 5. In order to substantiate its case, the prosecution examined as many as eight witnesses, namely Constable Harnek Singh PW1, HC Sham Lal PW-2, DSP Jhilman Singh PW-3, HC Gian Singh PW-4, HC Charanjit Singh PW-5, HC Navtej Singh PW-6, SI Balwinder Singh PW-7 and HC Surjit Singh PW-8. The remaining PWs were given up being unnecessary. 6. Statements of the accused-respondents under Section 313 Cr.P.C. were recorded where they pleaded innocence and alleged false implication. In defence, the accused examined Constable Rampal DW-1, HC Jarnail Singh DW2, Jaswinder Singh DW-3, Gurmail Singh DW-4, Sukhwant Singh DW-5, Raj Kumar Photographer DW-6 and Nirmal Singh DW-7. 7. The trial Court after hearing arguments of both the parties and going through the evidence and other material on record, acquitted the Crl.Misc.No.189 MA of 2009 [4] accused-respondents of the charge framed against them on the ground that the prosecution had failed to comply with the mandatory provisions of Section 42 of the Act and no search warrants were obtained from the competent authorities for conducting the search. No independent witness was joined at the time of search. The trial Court believed the statements of the accused to the effect that they were present in the marriage at the time of alleged occurrence. The photographs of the marriage were proved by the statement of Raj Kumar DW-6 and CD was also shown in the Court. It was also held by the trial Court that ASI Mahavir Singh died during pendency of trial and he could not be cross-examined. 8. Mr.D.S.Brar, learned Deputy Advocate General for the State argued that the trial Court has wrongly acquitted the accused-respondents while relying upon the photographs and the CD, which could not be proved as to whether those photographs/CD were of the same day or not. Mr. Brar further argued that the trial Court has wrongly believed the oral testimony of the accused which was taken at the time of trial only, whereas no such version was there in the statements recorded under Section 313 Cr.P.C. 9. We have heard learned counsel for the applicant and also gone through the judgment and evidence on record. 10. In our opinion, non examination of independent witness has deprived the trial Court of an opportunity to cross-check the testimonies of official witnesses. The trial Court has acquitted the accused on the ground that there was violation of the provisions of Section 42 of the Act. We are of the view that if non compliance of the mandatory and directory Crl.Misc.No.189 MA of 2009 [5] provisions, coupled with other facts, suggest a reasonable doubt in the story of the prosecution, then benefit goes to the accused. In the present case, the provisions of Section 42 of the Act have not been complied with by the police officials and the prosecution has failed to comply with those mandatory provisions as the secret information was not reduced into writing and no independent witness was joined by the police party. Moreover, the Investigating Officer who completed all formalities and searched the contraband died during the pendency of the trial and he could not be examined which had made the prosecution case prejudiced. Admittedly, the secret information was received by PW-3 DSP Jhilman Singh at about 2.00 a.m. (mid night) but it was not reduced into writing nor any warrants were obtained for conducting search of the said vehicle which is non compliance of the provisions of Section 42 of the Act. The secret information was received by PW-3 DSP Jhilman Singh and ruqa should have been sent by him but the same was sent by ASI Mahavir Singh which is also a flaw in the prosecution case. Moreover, the search was conducted on the basis of secret information after sun set and before sun rise. In such like circumstances, the information should have been reduced into writing by the same officer who had received the secret information and not by other police officer. This view has been upheld by the Hon'ble Supreme Court in Directorate of Revenue and another v. Mohammed Nisar Holia 2008(1) R.C.R. (Crl.) 241. 11. In view of the aforesaid facts, in our opinion the trial Court was right in acquitting the accused-respondents as the prosecution has failed to prove its case beyond a reasonable doubt. I Crl.Misc.No.189 MA of 2009 [6] 12. Hon'ble the Apex Court in various judgments on the question of interference against the order of acquittal including the ones reported in (i) Harijana Thirupala and others v. Public Prosecutor, High Court of A.P. Hyderabad 2002 (3) RCR (Crl.) 861; (ii) Shingara Singh v. State of Haryana and another 2004 (2) RCR (Crl.), 940 and (iii) State of UP v. Gambhir Singh and others AIR 2005 SC 2439 has held that if two views are possible, the view taken by the trial Court in favour of the accused for recording his acquittal should be accepted as the reasonable and possible view. In our opinion, in the facts and circumstances of the case and the aforesaid discussion, no different view can be taken, as taken by the trial Court from the evidence led by the prosecution. 13. Thus, we do not find any ground to grant leave to appeal. 14. Dismissed. (DAYA CHAUDHARY) JUDGE (JASBIR SINGH ) JUDGE October 14, 2009 raghav Note: Whether this case is to be referred to the Reporter? ........Yes/No