IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.523-MA of 2009 Date of Decision: 27.10.2009 State of Punjab Applicant Versus Deepak Bhardwaj @ Deepa Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.V.K.Jindal, Additional Advocate General, Punjab ….. Jasbir Singh, J. The State of Punjab has filed this application under Section 378 (3) Cr.P.C. with a prayer for grant of leave to file an appeal against judgment dated 4.10.2008, acquitting the respondent, of the charges framed against him. Criminal Misc. No.523-MA of 2009 2 It was allegation against the respondent that on 2.11.2006, he was found in possession of two bags of poppy husk, measuring 30 kgs each, without any permit. Case of the prosecution, as noted by the trial Court, in paragraph No.2 of its judgment, reads thus:- “Briefly stated, the facts of the prosecution case as brought out in the testimony of prosecution witnesses are that when on 2.11.06, Ins.Prem Singh along with ASI Raminderjit Singh, HC Lakhbir Singh, C. Balraj Singh, C.Harjinder Singh and C.Jasvbir Singh, while boarded in Govt. vehicle make Balero bearing registration No.PB-10-BH-6188 whose driver was HC Nachhattar Singh, was present near the narrow bridge of canal falling in the area of V.Akhara, in connection with patrolling and in search of suspected persons when one India car of silver colour being driven by a clean shaven person, came from the side of V.Akhara and was to cross the bridge. However, on seeing the police party present there, the driver of the car tried to turn back and was apprehended on suspicion. On enquiry, he told his name as Deepak Bhardwaj @ Deepa son of Sagan lal Pandit, r/o House No.29, Sector 9, PS Bhiwari Distt. Alwar (Rajasthan) and the car was bearing registration No.DL-60-G-1103. In the car, two bags were lying. After disclosing his identity, the I.O. told the accused that he wanted to search the gunny bags lying in the car as he suspected contraband therein and offered to the said person that if he so desired, then some Gazetted officer or Magistrate could be Criminal Misc. No.523-MA of 2009 3 called at the spot for the search of the bags. As the accused reposed confidence in Ins. Prem Singh and gave consent for search of the bags, Inspector recorded his consent memo Ex.PE, which was signed by the accused and attested by ASI Nirmaljit Singh and HC Balraj Singh so Inspector conducted search of the gunny bags and poppy husk was recovered therefrom. Accused could not produce any permit or licence for keeping in his possession the stated contraband. Then, Inspector separated two samples of 100 grams each from the said bags and converted them into sample parcels. Remaining poppy husk on weighment came to be 30 kgs in each of the bag. Then Inspector sealed the sample parcels and bulk parcels with his seal bearing impression ‘PS’ and took the case property alongwith Indica car into police possession vide recovery memo Ex.PA. He also prepared impression of seal and after use, entrusted the seal to ASI Raminderjit Singh. Inspector then sent a ruqa Ex.PF to Police Station through C.Jasbir Singh for registration of the case against the accused, on the basis of which formal FIR Ex.PW4/A was recorded by ASI Swaran Singh. From the personal search of accused Rs.310/- were recovered, which were taken into possession vide jamatalashi memo Ex.PB. Photographer was called at the spot. Grounds of arrest, memo Ex.PC was prepared. Information regarding arrest of accused was sent vide memo Ex.PD. Then, he prepared rough site plan of place of recovery Ex.PG with correct marginal notes. On Criminal Misc. No.523-MA of 2009 4 return to police station, he produced the bulk and sample parcels, sample impression chits of seal and accused before SHO/ ASI Swaran Singh, who verified the facts from the accused and checked the case property and put his own seal on the bulk parcels and sample parcels besides sample seal chits as ‘SS’ and deposited the case property with MHC Sukhwinder Singh. Inspector took the photographs and negatives also into possession vide memo Ex.PW7/A. Special report was sent to Halqa DSP from the place of recovery.” On completion of investigation, final report was put in Court for trial. Respondent-accused was charge sheeted, to which, he pleaded not guilty and claimed trial. The prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the respondent-accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, he denied the same, claimed innocence and false implication. He took up a specific stand that he was neither driver nor owner of the car in question, from which contraband was recovered. On 1.11.2006, he along with his relatives, was waiting for a bus at bus stand Jagraon, from there, he was picked up by some police officials and taken to the police station for interrogation, in some other case. For his release, money was demanded, which he refused. In view of above, a false case was planted against him. The respondent led no evidence in defence. Criminal Misc. No.523-MA of 2009 5 The trial Court, on appraisal of evidence, came to a conclusion that the prosecution has failed to prove guilt of the respondent-accused and by giving him benefit of doubt, he was acquitted. Hence, this application. The trial Court came to a conclusion that the contraband was recovered from the respondent-accused, however, he was exonerated on the ground that the link evidence was missing. To arrive at that conclusion, the trial Court noted that there is contradictions in the statements of the prosecution witnesses regarding handing over of sample of the seal to Constable Bhupinder Singh. Constable Bhupinder Singh has stated that he had received the sample seal chits from MHC on 6.11.2006 and deposited the same in Forensic Science Laboratory, however, as per record, the sample was deposited with Forensic Science Laboratory, Chandigarh on 17.11.2006. For the above said lapse, no explanation has been given. The trial Court has also rightly noted that there was no evidence on record that as to where sample of the contraband remained from 7.11.2006 to 16.11.2006. This Court feels that the opinion expressed by the trial Court is perfectly justified and is as per evidence on record. 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. Criminal Misc. No.523-MA of 2009 6 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 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.” In view of above, no case is made for interference. Dismissed. (Jasbir Singh) Judge 27.10.2009 (Daya Chaudhary) gk Judge