Crl. Misc. No. 198- MA of 2008 1 Crl. Misc. No. 198- MA of 2008 ---- State of Haryana Versus Jagraj Singh and another --- Present:- Mr. A.K. Jindal, Assistant Advocate General, Haryana, for the applicant-appellant. --- 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 15.02.2008, rendered by the Special Judge, Sirsa. 2. The facts, in brief, are that 26.05.2006, at about 6.15 PM, a Police party headed by Arun Kumar, Sub Inspector of Police Station Odhan, was present, on the road, leading from village Jandwala to Rajpura, for patrolling and detection of crime. In the meanwhile, a motorcycle was seen coming. The rider thereof, tried to reverse the same with a view to escape. However, the rider and the pillion rider were apprehended, along with the motorcycle. Jagraj Singh, Crl. Misc. No. 198- MA of 2008 2 accused, was driving the motorcycle, and Gurpreet Singh was the pillion rider thereof. The Investigating Officer suspected that they were carrying some contraband. The search of the accused, was conducted in accordance with the provisions of law, as a result whereof, 200 grams opium milk, from the person of Jagraj Singh and 100 grams opium milk, from the person of Gurpreet Singh, were recovered. Two samples of 10 grams each, from the opium milk, recovered from the accused-respondents, were taken out and the remaining opium milk was put into separate containers. The samples and the containers, containing the remaining opium milk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The motorcycle was also 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- respondents. The site plan was prepared. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, was framed against the Crl. Misc. No. 198- MA of 2008 3 accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Inderjeet, H.C., (PW-1), Tajinder Singh, C., (PW-2), Arun Kumar, S.I., (PW-3), Kuldeep Kumar, EHC, (PW-4), Mahinder Singh, HC, (PW-5), and Vinod Kumar, Inspector, ( PW6 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, 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-respondents, on the grounds that no independent witness was joined by the Investigating Officer, despite availability and as such the possibility of planting the alleged minor recovery of opium milk, could not be ruled out; that there was a delay of six days in sending the sample parcels to the office of the Forensic Science Laboratory, which remained unexplained, and as such Crl. Misc. No. 198- MA of 2008 4 the possibility of tampering with the same could not be ruled out when there was no other evidence to prove the link evidence; that the statement of Vinod Kumar, Inspector, ( PW-6 ), before whom the case property and the sample parcels were allegedly produced, was not recorded by the Investigating Officer and, as such, it could be said that the same were not produced before him; that no effort was made, to trace the owner of the motorcycle, so as to ascertain the origin of the opium milk; that the material contradictions, cropped up in the evidence of the prosecution witnesses, which remained unexplained and, as such, its case became doubtful; that the prosecution case was unnatural and improbable; and that no valid offer under Section 50 of the Act was given. 7. I have heard the Counsel for the applicant- appellant, 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-respondents, cannot be said to be valid. He further submitted that the trial Court fell into an error, in acquitting the accused-respondents, on the basis of flimsy grounds. He further submitted that non-joining of an Crl. Misc. No. 198- MA of 2008 5 independent witness, did not at all affect the merits of the case. He further submitted that, even the delay, in sending the 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 offer given in this case, was valid. It was also submitted by him that non- recording of the statement of Vinod Kumar, SI/SHO ( PW-6 ), did not at all affect the merits of the case. He further submitted that non-tracing the owner of the motorcycle, also 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 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 Crl. Misc. No. 198- MA of 2008 6 the accused-respondents, 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-respondents, should be recorded. The judgment of the trial Court, being based on the correct appreciation of evidence, led by the prosecution, and law on the point, does not suffer from 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-respondents, 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-respondents, and the other Crl. Misc. No. 198- MA of 2008 7 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, against the judgment of acquittal dated 15.02.2008, rendered by the trial Court. 10. For the reasons recorded herein-before, criminal miscellaneous No. 198-MA of 2008 is dismissed. October 22 ,2008 ( Sham Sunder ) dinesh Judge