1 Crl. Misc. No. 178- MA of 2008 ---- State of Haryana Versus Parminder Singh alias Pamma --- Present:- Mr. A.K. Jindal, Assistant Advocate General, Haryana, for the applicant-appellant. Mr. G.S. Sandhu, Advocate for the respondent. --- The aforesaid Criminal Miscellaneous Application has been filed by the State, under Section 378(3) of the Code of the Code of Criminal Procedure ( amended up to date ) seeking leave of the Court to file an appeal against the judgment of acquittal dated 14.12.2007, rendered by the Judge, Special Court, Karnal. 2. The facts, in brief, are that on 26.05.2005, Didar Singh, ASI, along with other Police officials was going towards village Gagsina from village Bal Pabana on motorcycles for crime detection, and when they reached canal bridge WJC, Gagsina, a person was seen coming, from the said village, on foot, carrying a yellow plastic bag, on his head, who on seeing them, at once, turned towards his right 2 side and tried to escape. On suspicion, he was apprehended. On interrogation, he disclosued his name as Parminder Singh alias Pamma son of Shabeg Singh, Jat Sikh, resident of Pundri District Kaithal. On checking the bag, the same was found containing 15 Kgs poppy husk. Two samples of 200 grams each, from the bag, were taken out and the remaining poppy husk was kept in the same bag. The samples and the bag, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded, against the accused-respondent. The site plan was prepared. The accused was arrested. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15(b) of the Narcotic Drugs and Psychotropic Substances Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Lakhi Ram,C., (PW-1), Suresh Kumar, H.C., ( PW-2 ), Ramesh Chander, EHC, ( PW-3 ), Ajmer Singh, 3 EHC, ( PW-4 ), Om Parkash, ASI, ( PW-5 ), Sandeep Singh, SI, ( PW- 6 ), Jagdish Singh, ASI, ( PW- 7 ), Didar Singh, ASI ( PW-8 ) and and Subhash Chand, Inspector, ( PW-9 ) ( wrongly numbered as PW-8 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not produce any evidence in defence, and closed the same. 6. The trial Court, after hearing the Counsel for the parties and on going through the evidence, produced by the prosecution, acquitted the accused-respondent, on the following grounds:- (1)that the material contradictions/discrepancies occurred in the statements of the prosecution witnesses, which remained un-explained, which make the case of the prosecution, doubtful, as mentioned in para No.9 of the judgment of the trial Court, (2)that the alleged recovery was effected from the accused, near the populated area ( abadi ) of the village, but no sincere effort was made to join an independent witness, as a result whereof, the prosecution case was doubtful, 4 (3)that the alleged recovery was effected on 26.05.2005, whereas, the sample parcles were sent to the office of Forensic Science Laboratory on 30.05.2005 and in the meanwhile, the seal after use, remained with the Police officials, and, as such, the possibility of tampering with the same, could not be ruled out, and (4)that as per the statement of Didar Singh, ASI ( PW-8 ), during the course of cross-examination, stated that the seal used, was of round shape and after use thereof, it was handed over to H.C. Om Parkash, who returned the same, to him, after three-four days, whereas Om Parkash, HC , ( PW-5 ) stated that the seal was of square shape and he returned the same, to the Investigating Officer, after about five days. 7. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the applicant-appellant submitted that the grounds, taken up by the trial Court, for acquitting the accused-respondent, cannot be said to be valid. He further submitted that the trial Court fell into an error, in acquitting the accused-respondent, on the basis of flimsy grounds. He further submitted that non-joining of an independent witness, did not at all affect the merits of the case. He further submitted that, even the delay, in sending the 5 sample parcels, to the office of the Forensic Science Laboratory, did not cause any dent, in the case of the prosecution. He further submitted that the contradictions which cropped up, in the statements of the prosecution witnesses, as noted by the trial Court in its judgment, could not be said to be material, but, on the other hand, were natural and, as such, the case of the prosecution, did not become doubtful. Accordingly, the prayer referred to above, in para 1 above, was made. 9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the applicant- appellant, in my considered opinion, the same do not carry any substance. The perusal of the judgment of the trial Court, the evidence, and record of the case clearly goes to reveal that the same is based on the correct appreciation of evidence and law on the point. Since the recovery allegedly effected from the accused-respondent, in the instant case, could be characterized as minor, and the chances of plantation of the same could not be ruled out, keeping in view the stringent punishment, provided by the Act, the trial Court, was right in coming to the conclusion, that, on account of the infirmities, referred to above, it was a fit case, in which the acquittal of the accused-respondent, should be recorded. The judgment of the trial Court, being based on the correct appreciation of 6 evidence, led by the prosecution, and law on the point, does not suffer from any serious infirmity. The contradictions, cropping up, in the evidence of the prosecution witnesses, could not be said to be minor, in nature, or insignificant. The other points, taken up by the trial Court, in recording acquittal of the accused-respondent, could also be said to be valid, persuading this Court, to come to the same conclusion, as was arrived at by the trial Court. It is settled principle of law, that the Appellate Court, while deciding the application for grant or refusal of leave to institute an appeal, against the judgment of acquittal, is required to see, as to whether, the same suffers from perversity mis-reading or mis-appreciation of the evidence produced, inherent infirmities and lacunae. If the two conclusions are possible, on the basis of the evidence, one going in favour of the accused-respondent, and the other in favour of the prosecution, then the former is required to prevail over the latter. In those circumstances, no leave can be granted to institute an appeal, against the judgment of acquittal, rendered by the trial Court. The judgment of acquittal, recorded by the trial Court, does not suffer from inherent infirmities, lacunae, perversity, irregularities or illegalities, persuading the Court, to differ from the conclusion, arrived at, by it. In this view of the matter, no ground is made out, for the grant of leave to file an appeal, 7 against the judgment of acquittal dated 14.12.2007, rendered by the trial Court. 10. For the reasons recorded herein-before, criminal miscellaneous No. 178-MA of 2008 is dismissed. October 22 ,2008 ( Sham Sunder ) dinesh Judge