IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.62-MA of 2009 Date of Decision: 05.03.2009 State of Haryana Applicant Versus Subhash and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.K.S.Godara, DAG Haryana for the applicant-State ….. Jasbir Singh, J. By filing this application, prayer has been made by the applicant for grant of leave to file an appeal against judgment dated 23.10.2008, vide which, the respondents were acquitted of the charges framed against them under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). Heard. It was allegation against the respondents that on 28.6.2005, they were found in possession of 175 kgs. Of poppy husk without any licence. Case of the prosecution, as noticed by the trial Court in its judgment, under challenge, reads thus:- Criminal Misc. No.62-MA of 2009 2 “Brief facts of the prosecution case, are on 28.6.2005 at about 7.05 p.m. Bhagwan Dass ASI alongwith Kharak Singh HC No.1439, Mainpal Constable No.456, Chailu Ram constable No.1016, all from police station Adampur, District Hisar, were on patrol duty and as such were present at police barrier at bye pass, T point, on the road leading to village Siswal, thereat Bhagwan Dass ASI (for short IO) received secret information, according to which jeep trademark Marsha having soil colour, bearing registration No.HR-24-D-5778 (for short jeep) in which, two youth were sitting, had been gone out of order, near Lakhpul, near Dhani (Farm house) falling within the territorial jurisdiction of village Shishwal and was parked there at and it was suspected of loading of some contraband. Having found the information credible, the IO alongwith other officials constituted the raiding party and proceeded to the destination where Jeep was disclosed to be parked and when the IO reached at Lakhpul, there at one person namely Kalu Ram son of Mukh Ream, who was resident of village Adampur was mounting on motor cycle, was joined into the raiding party. At the distance of 8-10 acres from the Lakhpul (bridge) towards village Shishwal police party saw the jeep and when it came near to the jeep it saw one person was sitting on the driving seat of it and was made to alight from the jeep and on enquiry he (accused Subhash) disclosed his whereabouts and on further enquiry he revealed to the IO that his brother in law (sister’s husband) Criminal Misc. No.62-MA of 2009 3 Dharampal alias Papli alias Pappu (accused Dharampal) was accompanying him and both of them had come from Rajasthan. Suddenly, jeep went out of order and accused Dharampal went to Mandi Adampur to fetch Mechanic and he (accused Subhash) was waiting for him. Investigation officer told to the accused Subhash that he was suspecting the jeep loaded with some contraband and he served notice Ex.P2 under section 50 of the the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short Act), intending to search the jeep and accused Subhash was left at option that if he desired to get the jeep searched before the Magistrate or Gazetted Officer then the gazetted officer or Magistrate could be summoned at the site where the jeep was parked. However, Subhash accused while giving reply Ex.P3 to the notice Ex.P2 reposed faith in the IO. Thereafter, the jeep was searched. During the course of search of the jeep, five plastic bags, white colour, were found loaded in it. All the five bags were untied and it was found same were containing poppy husk. From each of the five bags two representative samples measuring 200 gms each were collected and on weighing residue in each bag it was found 34 kgs 600 gms of poppy husk. All the 10 representative samples and five bags containing poppy husk were converted into sealed parcels under the seal of BD (Bhagwan Dass) and after putting the seal, the seal was handed over to Kharak Singh HC and the case property and jeep were taken into possession Criminal Misc. No.62-MA of 2009 4 by the police vide seizure memo/ recovery memo. Recovery memo were prepared at the site. Accused Subhash was arrested at the spot.” On completion of investigation, final report was put in Court for trial. Necessary documents were supplied to the respondents. They were charge sheeted to which they pleaded not guilty and claimed trial. Prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, separate statements of the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence. The trial Court on appraisal of evidence, as led by the parties, came to a conclusion that the prosecution has failed to prove guilt of the respondents and accordingly, by giving them benefit of doubt, they were acquitted of the charges framed against them. Hence, this application. Counsel for the applicant has taken us through the contents of the judgment and other documents placed on record. On perusal thereof, we are not inclined to grant leave to file an appeal, to the applicant-State, against the judgment under challenge. As per case of the prosecution, at time of recovery of the case property, ten representative samples were collected by the investigating officer. Thereafter, those samples along with case property and Jeep were produced before the SHO Police Station Adampur. However, during trial, SI Rohtash Singh SHO has nowhere stated as to how many sample parcels were Criminal Misc. No.62-MA of 2009 5 produced before him. As per affidavit (Ex.P1) filed by Prem Kumar (PW1), he had received five sample parcels from Rameshwar Das (PW3) on 7.7.2005, for the purpose of depositing the same with Forensic Science Laboratory. It was also so stated by Rameshwar Dass (PW3), however, this witness has nowhere stated as to where remaining five sample parcels were kept. Kharak Singh HC (PW2) has not supported case of the prosecution in Court. This witness was declared hostile and cross-examined by the Public Prosecutor, who failed to illicit from him anything favourable to the prosecution. The respondents remained in custody throughout till disposal of the case. The prosecution did not examine an independent witness, namely, Kalu Ram by stating that he was won over. The trial Court has rightly rejected above said reason and has rightly observed that non-examination of an independent witness was fatal to the case of the prosecution. It has further come on record that driver of the Jeep, in which police party has traveled to and from the place of occurrence, was not joined in investigation. As per case of the prosecution, respondent-Subhash was found sitting on steering wheel of the Jeep, out of which alleged contraband was received. The trial Court, by taking note of documents (Ex.D1 to Ex.D3) has rightly said that the prosecution has failed to connect above said respondent with the Jeep in question. As per evidence on record, Smt.Krishna Devi was registered owner of the Jeep in question, however, she was not joined in the investigation. The trial Court has further rightly come to the conclusion that the prosecution has failed to prove that respondent Subhash was in conscious possession of the contraband recovered. It has also come on record that when alleged contraband was recovered, respondent Dharam Pal was not present at the Criminal Misc. No.62-MA of 2009 6 spot. As per case of the prosecution, Dharam Pal had gone to a nearby town to bring a mechanic to repair the Jeep. He was joined in investigation on a statement made by the respondent Subhash, however, no such statement was recorded. Disclosure statement made by respondent Dharam Pal has rightly been ignored by the trial Court, having been made in police custody. The trial Court has further held that there was a delay in depositing sample parcels with the Forensic Science Laboratory. It has also come on record that the process was initiated by the police party on receipt of a secret information, however, PW10 has failed to show that information was reduced into writing as was mandatory under the provisions of the Act. The trial Court has rightly doubted the weighment of sample parcels. Counsel for the applicant has failed to indicate any misreading of evidence on the part of the Court below which may necessitate interference by us. The view formed by the trial Court 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. 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 Criminal Misc. No.62-MA of 2009 7 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 05.03.2009 (Jora Singh) gk Judge