Gujarat High Court
State Of Gujarat vs Jabbirsing on 11 February, 1990
Author: M.R.Shah
Bench: M.R. Shah
STATE OF GUJARAT....Appellant(s)V/SJABBIRSING RATANSING INDRA RAJPUT....Opponent(s)/Respondent(s) R/CR.A/108/1991 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 108 of 1991 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =============================================== STATE OF GUJARAT....Appellant(s) Versus JABBIRSING RATANSING INDRA RAJPUT....Opponent(s)/Respondent(s) =============================================== Appearance: Ms CM Shah, Addl. Public Prosecutor for the Appellant-State Mr Jigar G Gadhavi, Amicus Curiae for the respondent =============================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 04/02/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.H.VORA) The appellant-State has preferred the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973 ( the Code , for short) against the order and judgment of acquittal passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No.153 of 1990 whereby the learned Additional Sessions Judge acquitted the accused Jabbirsing Ratansing Indra Rajput from the charge of offences punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the NDPS Act , for short) and for the offence under Section 66 of the Bombay Prohibition Act ( the Prohibition Act , for short).
2. The prosecution case as revealed before the trial Court can be briefly stated thus:
2.1. The respondent-accused stood for trial for the offences punishable under Section 21 of the NDPS Act and under Section 66 of the Prohibition Act on the basis of the information received by PW No.6 - Shri Hirvatsinh Chhasatiya, Police Sub Inspector, Kagadapith Police Station on 11.2.1990 at 01:02 p.m. that one person sitting near Platform No.1, Stand No.3 (Part-1), Platform No.1 and 2, was having contraband articles with him. On receipt of such information, after intimating the same to PW No.3 as per his instructions, the concerned Police Officer PW No.6 summoned two panch witnesses and went to the aforesaid place to find out the correctness of the information so received and on his reaching at the said place, the person who was sitting nearby Platform No.1 of ST Bus Terminus, Gita Mandir Road, Ahmedabad on the floor carrying/having two bags with him. Out of those two bags, one blue color bag was lying on his right side while one brown colour bag was lying on his left side. When the brown color bag was searched it was found to be containing one whisky bottle of Malta Brand beneath the clothes and one plastic bag below the whisky bottle. On opening the plastic cover, it was found to be containing brown-black colour substance and the same was opened in the presence of two panchas. On smelling the said substance in the presence of panchas it was found to be opium. Therefore, the person, whose bags were searched and the aforesaid articles were detected, was brought to nearby Kagadapith Police Chowky whereat he was made to sit along with said articles. Thereafter, a vardhi - Exh.9 was sent to FSL for the purpose of preliminary analysis of the articles which were found in the possession of the said person. It is further the case of the prosecution that at about 6 PM the officers of Forensic Science Laboratory (FSL) arrived at the police chowky, i.e., Kagdapith Police Chowky and after preliminary analysis it was deted that the articles being opium weighing 502 grams. At this stage, the final panchnama of seizure was drawn and the articles were found as prohibited under the provisions of the NDPS Act and after sealing the same, the accused along with seized contraband articles of 502 grams of opium and one Malta Brand whisky bottle (750 ml) were forwarded to Kagdapith Police Chowky for registration of the crime against the respondent-accused herein and the said articles were deposited with the said police station.
2.2. On receipt of the report, the investigation was commenced and completed by the ASI of Kagdapith Police Station i.e. PW No.6 and after receipt of the final report of FSL necessary charge-sheet was submitted to the Chief Metropolitan Magistrate on 16th May 1990.
3. As the said Court lacked jurisdiction to try the offence in question, it committed the case to the Court of Sessions, Ahmedabad as provided under Section 209 of the Code and thus the Sessions Court registered the said case as Sessions Case No.153 of 1990.
4. Upon committal of the case and the accused to the Sessions Court, the Sessions Court framed the charge at Exhibit 1, which, respondent accused denied and claimed the trial.
5. In order to bring home charge, the prosecution has examined Mr Siddharth Hiralal Dave PW No.1, one of the panch witnesses, at Exhibit 11, Mr Ramchandra Vaghmalji Soni PW No.2, who weighed the substance at the place of seizure, at Exhibit 13; Mr Jashwantsinh Kacharaji Chavda PW No.3, who recorded entry No.17 in Station Diary on telephone and thereafter transmitted the information to the Superintendent of Police as per the entry made in vardhi book, at Exhibit 14; PW No.4 Mr Jaswantsinh Shankarsinh Vaghela, who carried contraband articles to FSL and deposited with FSL as per Nondh at Exhibit 19; PW No.5 Selkhan Umarkhan Chauhan, Head Constable who received the contraband articles from FSL after the analysis on 11.5.1990 and deposited the same before the Metrpolitan Magistrate Court on 16th May 1990; and lastly PW No.6 Mr Shri Girvatsinh Chhasatiya, Complainant and Investigating Officer who investigated the offence and charge-sheeted the respondent-accused before the competent court at Exhibit 25.
6. Over and above the oral evidence, the prosecution has also placed on record the documentary evidence in the nature of complaint vide Mark A; the Panchnama of seizure of contraband substance - Exhibit 12; Entry No.17 recorded in Station Diary - Exhibit 15; Entry No.23 of Station Diary - Exhibit 16; Muddamal Receipt - Exhibit 17; Report of PSO dated 11.2.1990 -
Exhibit 18; Forwarding letter of PSI, Kagdapith Police Station, addressed to FSL - Exhibit 19; Receipt of muddamal articles received by FSL - Exhibit 5; the forwarding letter of FSL - Exhibit 6; Opinion of FSL - Exhibit 7; Botanical Examination Report - Exhibit 8; Copy of FSL with preliminary opinion - Exhibit 9; Entry in the Station Diary of Kagdapith Police Station - Exhibit 26; Entry of muddamal article having been transmitted - Exhibit 22; entry in respect of receipt of muddamal articles from FSL - Exhibit 23; and entry in the Prohibition Crime Register, Exhibit 24.
7. On completion of recording of evidence of oral as well as documentary evidence, the learned trial Judge recorded the further statement of respondent-accused as provided under Section 313 of the Code and in his further statement respondent-accused denied the each and every incriminating circumstances put before him and he further stated that he is doing labour work at a village near Khambhat and was proceeding to Rajasthan for attending the marriage ceremony of his brother and he was given Rs.5750/- by his employer towards travel expenses and while he was waiting for the bus, he came to be arrested by the police. He has specifically stated that in the suitcase there was one wrist watch of HMT make, one transistor and clothes as well as golden ornaments.
8. After hearing both the sides and after appreciating the evidence led before the learned trial Judge, the learned trial Judge by his order dated 13.9.1990 acquitted the respondent-accused of the charges levelled against him.
9. While assailing the judgment and order of acquittal, learned A.P.P. Ms.C.M. Shah submitted that the order of learned Trial Judge is against the provisions of the NDPS Act and the learned Trial Judge has not properly and legally appreciated the evidence adduced by the prosecution in this case. It is submitted that the learned Trial Judge has unduly given importance to the fact that the muddamal articles were not seized at the earliest point of time and as such, the learned Trial Judge ought to have considered the fact that the Investigating Officer was waiting for officers of F.S.L. and even otherwise, it has come on record that the muddamal articles, though were not sealed but it has come on record that the opium was already packed with paper and whisky bottle was sealed itself and, therefore, question of affixing any further seal or undertaking further sealing process does not arise. In this connection, it is also submitted that merely because one of the panch witnesses left the place twice or thrice, where the muddamal articles were lying, no doubt should have been created as the muddamal articles were in the police station itself. Lastly, it is urged that the learned Trial Judge failed to consider the fact that even if there is any lapse in the procedure of seizure or custody of muddamal articles, when there is no iota of evidence to the effect that the respondent accused was falsely involved or there is any enmity between the officer and the accused and so, the learned Trial Judge ought to have convicted the respondent-accused as he was in possession of the contraband articles and as Investigating Agency has observed all the procedural aspects as laid down in Sections 41 to 50 of the said Act in its letter and spirit.
Even otherwise, as per the decision of this Court, the provisions contained in Sections 41 to 50 of the Act are held to be directory in nature and, therefore, even if there is any breach or non-compliance of any of the provisions as laid down under the said Section, then also it would not be fatal to the case of the prosecution. Based on these submissions, it is urged that looking to the evidence on record, there were no chances of substituting or replacing the muddamal articles and further, no prejudice has been caused to the respondent-accused because of any failure to observe any provision on the part of the Investigating Agency and thus, it is urged to accept the Appeal and convict the respondent-accused suitably.
10. While supporting the findings recorded by the learned Trial Judge acquitting the respondent-accused for the offences under Sections 21 of the NDPS Act and 66 of the Prohibition Act, learned advocate Mr.Jigar Gadhvi, amicus curiae, submitted that there is non-observance of provisions contained under Section 52A(2) of the Act with regard to seizure procedure followed by the Investigating Agency and on top of it, the contraband articles remained unguarded, unattended and unprotected for about five hours in the police station and, therefore, such lapse is rightly weighed against the prosecution and, therefore, benefit of doubt has rightly been given to the respondent-accused. It is urged that apart from the safe custody of the seized muddamal articles, there is no evidence as to from where, the muddamal articles were seized and brought to the F.S.L. and further, the P.I. of Kagdapith police station, though received the seized muddamal articles after 6:00 pm., vide Exh.24, the same were not sealed by affixing seal on the same for keeping it in safe custody and, therefore, all these factors have rightly been observed against the prosecution for disbelieving its case as projected through various prosecution witnesses. It is vehemently urged that there is non-compliance of the provisions of Section 50 of the Act also as the provisions contained under said Section are mandatory in nature and in this case, when the accused was carrying bag with him, search was required to be conducted as personal search as per the conditions laid-down under said Section and thus, non-observance of such mandatory conditions vitiates the trial. Learned advocate Mr.Gadhvi has also urged that P.W.No.6 - Shri Girvatsinh Chhasatiya is not only the complainant but is the very police officer, who himself proceeded with the investigation and filed charge-sheet in this case and, therefore, there is lack of fair and impartial investigation and such practice has been deprecated by the Hon'ble Supreme Court and this Court on various occasions. In support of this proposition, learned advocate Mr.Gadhvi has relied upon the decision of the Hon'ble Supreme Court rendered in case of Megha Singh V/s. State of Haryana reported in (1996)11 SCC 709 and more particularly, para 4 thereof which reads as under:-
4.
After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of PWs 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 CrPC. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.
10.1 Shri Gadhvi, learned advocate appearing on behalf of the accused has further submitted that while applying the proposition laid down in the case of Megha Singh (supra), the Division Bench of this Court in case of State of Gujarat V/s. Yusuf Taja Moriya Muman & Anr. rendered in Criminal Appeal No.699 of 1998 observed as under:-
"One of the important circumstances, which is properly taken into account by the trial Court, is that Mr.Chaudhary, who was leader of the raiding party, had himself investigated the complaint lodged by him. As Mr.Chaudhary himself had investigated his own complaint, note of caution sounded by the Supreme Court while dealing with cases wherein investigation is made by police officer who was one of the members of raiding party in (i) Bhagwan Singh v. State of Rajasthan, A.I.R.1976 S.C. 985, and (ii) Megha Singh v. State of Haryana, A.I.R.1995 S.C. 2239, will have to be borne in mind. It is difficult to understand in what circumstances P.S.I. Mr.Chaudhary had undertaken investigation of his own complaint. Normally, a police officer who is one of the members of the raiding party, should not investigate the complaint so as to ensure fair and impartial investigation. Here, in this case, Mr.Chaudhary had not only arranged the raid, but recovered the substance allegedly thrown on the ground and also searched houses of the respondents. This is a vital infirmity in prosecution case, which is bound to reflect on the credibility of its case."
11. Based on these factual and legal submissions, it is submitted by learned advocate Mr.Gadhvi that the learned Trial Judge has rightly acquitted the respondent-accused and, therefore, this Court may not interfere with the findings recorded by the learned Trial Judge acquitting the respondent-accused from the aforesaid offences. Even if two views are possible in such type of cases then benefit of doubt should be given to the respondent-accused.
12. We have heard the submissions of both the learned advocates at length and minutely examined the evidence adduced before the Trial Court and we have also gone through the principles laid down in the various rules cited at the Bar.
13. On analysis of evidence, it appears from the deposition of P.W. No.1 Siddharth Hiralal Dave that the contraband articles were seized at 1:00 p.m. on 11.02.1990 and after receipt of preliminary analysis report of F.S.L. at 6:00 p.m. on that day, panchnama of seizure was completed at Kagdapith police station. So, apparently, there is a time gap of about five hours. It also appears in the evidence that during this intervening period of five hours, contraband articles were lying open on the table of the P.S.I. in the police station. There is no evidence on record as to how many persons other than the P.S.I., accused and P.W. No.1 were present or all of them were present in the police station itself from this intervening period continuously. We may not be so technical that because of non-examination of second panch of seizure panchnama as one of the factors against the prosecution but we are of the definite opinion that there should be a positive evidence that during all these intervening period, the second panch was present but unfortunately, there is no evidence to this effect at all. In the cross-examination, P.W. No.1, in terms, admitted that he had gone out of police station for three to four times for attending his business of book-stall in addition to attending two to three natural calls. During all these intervening period, contraband articles seized were lying in open, unattended, unprotected and unsealed condition on the table of P.S.I. Needless to say that the procedure prescribed for immediate sealing of the seized articles is to ensure safety and prevention from tampering with the seized articles. The object of seizure is to ensure identity, safety and custody and on the top of it, prevention of tampering of seized articles. So, in our opinion, failure to comply immediate seal procedure to ensure safety and non-tempering of the seized articles goes to the root of the prosecution case when it is not complied with.
14. It has also come on record that though the P.S.I. received seized muddamal after 6:00 p.m. vide Exh.24, he chosen not to seal the contraband articles by affixing seal for keeping it in a safe custody.
15. On our minute examination of record, we have not found any evidence as to how and from where, the muddamal articles transmitted to the F.S.L. In the evidence of P.W. No.5 S.U. Pathan, according to his evidence, he received the muddamal articles after analysis by F.S.L. on 11.05.1990 and deposited the same with the Metropolitan Magistrate Court on 16.05.1990. In his examination-in-chief, he deposed that he has received contraband articles in a sealed condition and in the said sealed condition, he deposited the same with the Court after making necessary entry vide Exh.23. But, during the course of cross-examination, said P.W.No.5 curiously and surprisingly admitted that he made entry in the muddamal receipt register though the muddamal article was not with him.
16. So, in the matter of offence attracting stringent punishment, the Investigating Agency ought not to have undertaken any procedure casually or mechanically as appearing in the evidence of witnesses examined by the prosecution, namely, non-affixing of seal by P.S.I. of the concerned police station on the muddamal articles, muddamal articles were lying open on the table of P.S.I. in unguarded and unattended condition for about five hours, muddamal articles were not reached in safe custody in time and further, no evidence as to whether the second panch was present or not during the intervening period of five hours in the police station would go to the root of the prosecution case.
17. In view of this, as serious lapses occurred/took place during the course of investigation, the findings/opinion of the F.S.L. would not be helpful to the prosecution to record the findings of conviction. Therefore, the learned Trial Judge has rightly disbelieved the case of the prosecution on this count. We also agree that when the seizure of muddamal articles itself has not been done properly and coupled with the fact that when the safe custody of the same is not free from doubt, no reliance on the report of the F.S.L. can be placed and such report is of no avail to the prosecution to seek conviction.
In the matter of seizure, the prosecution is required to establish the observance of the provisions contained under Section 52A of the Act (amended by Amendment Act No.2 of 1989) and more particularly, the procedure as referred in Sub-section (2) thereof which reads as under:-
(2).
Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of -
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
19. We have noticed from the evidence on record that when the Investigating Officer has not properly proved the identity of the seized articles from the accused is the one of which the F.S.L. has given its findings beyond the reasonable doubt but as a matter of fact, the grave doubt is cast on the whole aspect of the seizure of muddamal articles from the accused and so, benefit of doubt which has undoubtedly given by the learned Trial Judge has rightly been given to the respondent-accused.
20. At this stage, we have also noticed that the Investigating Officer, who seized the contraband articles, was required to entrust the said contraband articles to the police officer in-charge of the police station who shall take the charge of the same and keep it in a safe custody and affix seal to such contraband articles. In this regard, there is non-observance of provisions contained in Section 55 of the Act which reads as under:-
55.
Police to take charge of articles seized and delivered. - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
21. According to Section 55 of the Act, the officer in-charge of the police station is required to take charge and keep in safe custody all the articles seized under this Act and in order to ensure the compliance of the provisions of Section 55 of the Act, the officer in-charge is required to affix the seal to such articles. Special procedure under Section 55 of the Act has been envisaged to avoid tampering and also to avoid false implication. If the provisions included in Section 55 of the Act are not complied with, it would definitely create doubt in the prosecution case. We have not found any explanation in the evidence for non-compliance of provisions contained in Sub-section (2) of Section 52A of the Act and Section 55 of the Act and, therefore, the same would cause prejudice to the respondent-accused entitling him to acquit which has rightly been done by the learned Trial Judge in the present case.
22. We have also noticed and found that the police inspector of the police station concerned, though received information of serious offence within the area of his jurisdiction for which he was required to investigate further, did not do anything further than just to reach the spot and left the scene of offence without bothering to do anything further and after instructing the concerned P.S.I. to deal with the situation, he immediately left the scene of offence. The concerned P.I. of the police station has not even cared to affix seal on the seized articles and even did not see to it that it is kept in safe custody under his control. So, in our considered opinion, the prosecution has not proved beyond reasonable doubt the guilt of the accused alleged against him whereby, he can be saddled with the criminal liability for remaining in possession of the contraband articles on 11.02.1990 as there is no nexus between the alleged contraband articles of 502 grams of opium and the opinion of the F.S.L. Simultaneously, so far as the seizure of Malta brand whisky from the accused is concerned, it seems that the prosecution took it for granted that as it is a sealed bottle having inscription of Malta brand whisky, the contents of the bottle automatically fell within the presumption of whiskey, as provided under the Prohibition Act. No attempt was made to safe custody of the bottle and to get its sample sent to chemical analyzer for its analysis and for his opinion. Apart from it, there is no evidence as to whether the seal on the bottle is original one, affixed by the company or it is substituted? The possession of the whiskey bottle, alleged to be recovered from the accused, remained in the custody of the police unattended and unguarded condition on the table of P.S.I. for more than 5:00 hrs. i.e. till 6:00 pm. So, there is no attempt at all on the part of the Investigating Agency to find out the contents of the bottle and have it examined through the competent authority so as to establish that the content of the bottle is prohibited item under the Prohibition Act. So, the learned Trial Judge has rightly found that for want of any evidence on this aspect, the accused cannot be held guilty for the offence alleged under Section 66 of the Prohibition Act and we are also concurring with such findings as learned A.P.P. could not point out any evidence otherwise than this so as to take different view in this matter.
23. Now, so far as contention of Shri Gadhvi, learned advocate appearing on behalf of the original accused that there was non-compliance of provisions contained in Section 50 of the N.D.P.S. Act, as at the time of search of the accused, on his left side, he was having one brown colour bag and upon search being carried out, the alleged contraband articles were recovered from the said bag is concerned, in view of the recent decision of the Hon ble Supreme Court in the case of Ajmer Singh V/s. State of Haryana reported in (2010)3 SCC 746, the same cannot be accepted. In the case of Ajmer Singh (supra), considering the earlier decisions of the Hon ble Supreme Court in the case of Madan Lal V/s. State of H.P. reported in (2003)7 SCC 465 (Para 16) and in the case of State of H.P. V/s. Pawan Kumar reported in (2005)4 SCC 350 (Para 11), the Hon ble Supreme Court has observed and held that Section 50 of the N.D.P.S. Act only applies in case of personal search of a person and it does not extend to search of a vehicle or a container or a bag or premises. It is further observed and held that a bag, briefcase or any such article or container etc., can under no circumstances, be treated as body of a human being. In the present case, as the search was of a bag, it does not come within the ambit of Section 50 of the N.D.P.S. Act. Under the circumstances, the aforesaid contention is required to be rejected outright.
24. Relying upon the decision of the Hon ble Supreme Court in the case of Megha Singh (supra) as well as this Court in the case of Yusuf Taja Moriya Muman & Anr (supra), it is submitted by Shri Gadhvi, learned advocate appearing on behalf of the accused that as in the present case, P.W. No.6, who himself was the complainant, also investigated the case i.e. conducted search of the accused; carried out seizure procedure; collected sample and concluded procedure of seizure panchnama; registered the offence and also conducted further investigation including seeking remand of the accused and recorded statement of witnesses and filed the chargesheet, there is vital infirmity in the prosecution case and, therefore also, the order of acquittal deserves to be confirmed. The sum and substance of the submission is that as the complainant himself has conducted the investigation, it is to be held that the entire investigation of the case has been vitiated. In view of the decision of the Hon ble Supreme Court in the case of S. Jeevanantham v. State, Through Inspector of Police, TN. (2004) 5 SCC 230, the aforesaid cannot be accepted. In the case of S. Jeevanantham (supra), the Hon ble Supreme Court considered the decision in the case of Megha Singh (supra) and also considered another decision in the case of State represented by Inspector of Police, Vigilance & Anti-Corruption, Tiruchirapalli, T.N. V/s. V. Jayapaul reported in (2004)5 SCC 223 and the aforesaid has been negatived by the Hon ble Supreme Court. In the case of S.Jeevanantham (supra), the Hon ble Supreme Court considered the following observation of the Hon ble Supreme Court in the case of V. Jayapaul (supra) (para 6):-
"We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done....."
24.1 In the case of S. Jeevanantham (supra), it was argued before the Hon ble Supreme Court that P.W. No.8 was the complainant and he himself conducted the investigation and, therefore, the entire investigation of the case has been vitiated. However, such contention/argument has been negatived by the Hon ble Supreme Court by observing in para 3 that P.W. No.8 conducted the search and recovered the contraband article and registered the case and the article seized from the accused was narcotic drug. However, the accused could not point out any circumstances by which the investigation caused prejudice or was biased against accused. The Hon ble Supreme Court further observed that as P.W. No.8 was not in any way personally interested in the case and, therefore, the Court is unable to find any sort of bias in the process of investigation and consequently, the Hon ble Supreme Court confirmed the conviction. Paragraph 2 of the decision of the Hon ble Supreme Court in the case of S. Jeevanantham (supra) reads as under:-
2. We heard the learned counsel for the appellants. The counsel for the appellants contended that PW 8, the Inspector after conducting search prepared the FIR and it was on the basis of the statement of PW 8 the case was registered against the appellants and it is argued that PW 8 was the complainant and he himself conducted the investigation of the case and this is illegal and the entire investigation of the case is vitiated.
Reliance was placed on the decision in Megha Singh v. State of Haryana wherein this Court observed that constable, who was the de facto complainant had himself investigated the case and this affects impartial investigation. This Court said that the Head Constable who arrested the accused, conducted the search, recovered the pistol and on his complaint FIR was lodged and the case was initiated and later he himself recorded the statement of the witnesses under Section 161 CrPC as part of the investigation and such practice may not be resorted to as it may affect fair and impartial investigation. This decision was later referred to by this Court in State v. V. Jayapaul wherein it was observed that: (SCC p.227, para 6) "We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done....."
24.2 Considering the facts of the case on hand and on our analysis of evidence adduced in this case, there is no allegation levelled against P.W. No.6 as the accused being roped in or involved in this case falsely or to settle any score at the instance of the P.W. No.6 or any other person. No allegation against P.W.No.6 is made when the further statement of the respondent-accused under Section 313 of the Code was recorded by the learned trial Judge and we also have not found any such allegation except denial of incriminating circumstances found against him. Nothing has been pointed out so as to infer that any prejudice is caused to the accused. By taking such contention, learned advocate Shri Gadhvi could not finger to any evidence as to any bias or real bias existing in the investigation. Under the circumstances and in the aforesaid facts and circumstances, the contention raised by the accused that as P.W. No.6 was himself the complainant as well as the Investigating Officer and, therefore, the entire investigation has vitiated, cannot be accepted.
25. So, when the factual position as reflected in the evidence adduced before the Trial Court is decided on the legal principles indicated hereinabove, inevitably, prosecution failed to establish its case beyond shadow of doubt and, therefore, the learned trial Judge has rightly acquitted the accused from the charges levelled against him under the provisions of NDPS Act and the Prohibition Act.
26. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
27. In the case of RAM KUMAR V. STATE OF HARYANA, reported in AIR 1995 SC 280, Supreme Court has held as under:
The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
28. It is well-settled principle of law that if two views are possible, the appellate court should not disturb the finding of acquittal recorded by the trial court unless there are compelling reasons to do so. In this regard, broad proposition of law laid down by the Honourable Apex Court in the case of Brahm Swaroop And Another v. State of U.P., (2011) 6 SCC 288 more particularly, paragraph 38 is relevant for the disposal of this appeal. Therefore, the same is reproduced hereinbelow:
38. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference.
29. It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon'ble Supreme Court in the case of GIRJA NANDINI DEVI AND OTHERS V. BIJENDRA NARAIN CHAUDHARI, AIR 1967 SC 1124 and STATE OF KARNATAKA V. HEMA REDDY AND ANOTHER, AIR 1981 SC 1417.
30. On overall reassessment and reappreciation of evidence, this Court is satisfied that there is no Pinfirmity in the reasons assigned by the learned trial Judge for acquitting the accused. Suffice it to say that the learned trial Judge has given cogent and convincing reasons for acquitting the accused and the learned A.P.P. has failed to dislodge the reasons given by the learned trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge.
31. Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the accused of the offences with which he was charged. Hence, the appeal deserves dismissal and is accordingly dismissed.
(M.R.SHAH, J.) (S.H.VORA, J.) mohd/hitesh Page 30 of 30