IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.375-MA of 2008 Date of Decision: 22.01.2009 State of Punjab Applicant Versus Mohinder Singh Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.D.S.Brar, DAG Punjab for the applicant Ms.Balvinder Kaur, Advocate for the respondent ….. Jasbir Singh, J.(Oral) State of Punjab has filed this application under Section 378 (3) Cr.P.C., with a prayer to grant leave to file an appeal against judgment dated 22.12.2007, acquitting the respondent of the charges framed against him. FIR No.173 was recorded against the respondent on 30.10.2005. It was allegation against him that he was found in possession of two bags of poppy husk (60 kgs.). Case of the prosecution, as noticed by the trial Court, in paragraph No.2 of its judgment reads thus:- “Briefly stated the case of the prosecution is that on 30.10.2005, police party headed by SI/ SHO Gurwinder Singh, has gone on Govt. Vehicle No.PB-12G-9049, being driven by C.Satnam Singh, in connection with patrolling duty and checking of bad elements and was present at Bajaj Chowk when Criminal Misc. No.375-MA of 2008 2 secret information was received that Mohinder Singh son of Sangat Singh, resident of village Bhatnura Khurd, P.S.Bholath, is in the habit of selling poppy husk and he has kept the gunny bags containing poppy husk in his house. He is waiting for a vehicle for selling the poppy husk. If a raid is conducted, he can be apprehended alongwith gunny bags containing poppy husk. Secret information being reliable, Ruqa Ex.PB was sent to the police station through C-II Jatinder Singh. Special reports were sent to the higher officers. Then raid was conducted by SI/ SHO Gurwinder Singh. SI/SHO Gurwinder Singh also made request to the DSP for reaching to the spot. Then raid was conducted at the disclosed place. Upon seeing the police party, the accused succeeded in escaping from the spot. One sample of 250 grams from each of the gunny bags of poppy husk was separated. On weighment, remaining poppy husk of one gunny bag was found to be 39 kg. 750 grams and other gunny bag was found to be 19 kg. 750 grams of poppy husk.” Sample parcels and two bags containing poppy husk were sealed with seal ‘GS’ of SI Gurwinder Singh. DSP Amrik Singh also put his seal bearing impression ‘AS’ on those parcels. Seal, after use, was handed over to an independent witness, namely, Nirmal Lal, by SI Gurwinder Singh. Sample parcels and sealed gunny bags were produced before the Court concerned. During investigation, respondent was arrested, sample parcels was sent for examination and on receipt of its report, final repot was put in Court for trial. The respondent was charge sheeted, to which he pleaded not guilty and Criminal Misc. No.375-MA of 2008 3 claimed trial. To prove its case, prosecution examined six witnesses and also brought on record documentary evidence. On conclusion of prosecution’s evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He also led evidence in defence. The trial Court, on appraisal of evidence as led by both the parties, came to a conclusion that the prosecution has failed to prove guilt of the respondent beyond a shadow of reasonable doubt, accordingly, he was acquitted of the charges framed against him. Hence, this application. Mr.D.S.Brar, DAG Punjab, has vehemently contended that the trial Court has given too much importance to the technicalities. The case of the prosecution was proved on record. The official witnesses have deposed against the respondent, as such, his acquittal was not justified. He prayed that appeal be allowed and the respondent be convicted and sentenced for the charges framed against him. Prayer made has vehemently been opposed by counsel for the respondent. She argued that the respondent was not arrested at the spot. He was not known earlier to the official witnesses. Identification of the case property is in dispute. Seal, after use, was not handed over to the independent witness. By making reference to many other discrepancies in the statements made by the prosecution witnesses, he prayed that appeal, having no substance, be dismissed. Criminal Misc. No.375-MA of 2008 4 After hearing counsel for the parties, we feel that at the instance of the applicant no interference can be made in this case. The trial Court when acquitting the respondent has observed as under:- “The present case has been registered upon the basis of secret information. Upon the basis of this secret information, a raid was conducted at the disclosed place. But the accused was not apprehended. As per the prosecution version, he fled away from the place of recovery. This raid has been conducted at the house of the accused after sun set. So the identity of the accused is doubtful because neither the Investigating Officer, recovery witness, nor the Gazetted Officer have specifically deposed that earlier the accused was known to them and in which manner he was known to them. DSP Amrik Singh appearing as PW5 has deposed at the outset of his cross-examination that he does not know Mohinder Singh and he never appeared as witness in any case against Mohinder Singh. He is having no relation with the accused. PW2 SI Gurwinder Singh, Investigating Officer, could not give satisfactory reply that upon which basis, accused Mohinder Singh was earlier known to him. In his cross- examination, he has deposed that he knew the accused earlier because he was a person of bad character. But he has further admitted that he does not know that if any other case of any kind was pending against the accused. He himself never arrested the accused in any other case before the registration of the present case. He has not received any written complaint against the Criminal Misc. No.375-MA of 2008 5 accused regarding his involvement in any criminal activity. So this testimony of the Investigating Officer that accused Mohinder Singh was earlier known to him was without any basis. To the similar effect is the cross-examination of PW1 ASI Shiv Singh that he knew accused Mohinder Singh as he was earlier stopped by the police party during ‘Nakabandi’. It is not a convincing answer that if the police party had stopped some body at ‘Nakabandi’, that person will be again identified by the police official when he fled away from the place of occurrence. It is admitted case of the prosecution that after arrest, no test identification parade of the accused was got conducted.” Opinion expressed by the trial Court, as extracted above, is perfectly justified and is in consonance with the evidence on record. We are convinced that the prosecution has failed to establish identity of the respondent as an accused. As per case of the prosecution, seal, after use, was handed over to an independent witness, namely, Nirmal Lal, ex Municipal Commissioner by SI Gurwinder Singh. Above said witness was not produced in Court. ASI Shiv Singh (PW1) has given a different version. He has stated that seal, after use, was handed over to him by the Investigating officer and it was not given to Nirmal Lal. With regard to filling up of CFSL form, contradictory statements have been given by SI Gurwinder Singh and Amrik Singh, DSP (PW5). It has also come on record that recovery was alleged to have been made from house of the respondent after sunset. There is nothing on record to prove that the house in dispute was in the ownership of the respondent and Criminal Misc. No.375-MA of 2008 6 furthermore for effecting search after sunset, necessary procedure as envisaged under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was not complied with. In view of facts mentioned above, we feel that no case is made out to grant leave to file an appeal. Dismissed. (Jasbir Singh) Judge 22.1.2009 (Jora Singh) gk Judge