Punjab-Haryana High Court
State Of Punjab vs Sher Singh Alias Shera on 28 October, 2009
Author: Daya Chaudhary
Bench: Jasbir Singh, Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Misc. No. 389 MA of 2009
Date of decision:28.10.2009
State of Punjab
....Applicant
Vs.
Sher Singh alias Shera
...Respondent
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.V.K.Jindal, Addl. Advocate General, Punjab,
for applicant.
****
DAYA CHAUDHARY, J.
1. State of Punjab has filed the present application under Section 378(3) of the Code of Criminal Procedure for permission to grant leave to appeal against the judgment of acquittal dated 18.2.2009 passed by Judge, Special Court, Patiala, vide which Sher Singh alias Shera accused- respondent has been acquitted of the charge framed under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act").
2. Briefly, the facts of the prosecution case are that on 17.7.2004 ASI Mohinder Singh along with Head Constable Waliati Ram and other police personnel were present at Sangrur Road, Patiala where he received secret information regarding selling of poppy-husk by the accused in the area of village Jahlan Kalan that if raid was conducted immediately, then heavy quantity of contraband could be seized from the accused. ASI sent Crl.Misc. No. 389 MA of 2009 [2] ruqa through Constable Jaspal Singh on the basis of which a formal FIR was registered by SI Amarpal Singh. Ex-Sarpanch Ajaib Singh was associated with the police party and a telephonic message was sent to DSP Bhupinder Singh. The police party raided the spot and DSP also reached at the spot and found the accused-respondent sitting under Tahli tree on two bags. Accused was apprehended by the police. DSP and ASI disclosed their identity to the accused and also apprised him of his right to get him searched in presence of a Gazetted Officer or Magistrate. The accused reposed his confidence in Deputy Superintendent of Police. Consent memo of the accused was recorded, which was attested by the DSP, the other police officials and independent witness. Search of the bags was conducted and poppy-husk was found in the bags. Two samples of 100 grams from each bag were separated and the remaining poppy-husk, on weighment of one bag, came to be 34 Kg. 900 gms and in the second bag, it was 29 kg. 800 gms. Sample parcels and residue parcels were prepared and were sealed with the seal of Investigating Officer bearing impression 'MS'. Seal after use was handed over to Ajaib Singh. Specimen impression of the seal was also prepared. Grounds of arrest and information of arrest was supplied to the accused. The Investigating Officer prepared rough site plan and recorded statements of the witnesses. On return to police station, ASI produced the case property before SHO, who verified the fatum of recovery and same was sealed bearing impression 'KK' and sample seal was also attested and seal impression was imposed. The case property was deposited with the MHC with seal intact. The accused along with case property was produced before the Duty Magistrate. Special Report under Section 57 of Crl.Misc. No. 389 MA of 2009 [3] the Act was sent. Samples were sent to the Chemical Examiner. On receipt of report of Chemical Examiner, and after completion of other formalities, challan against the accused-respondent was presented in Court.
3. Copies of documents were supplied to the accused-respondent and charge under Section 15 of the Act was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined as many as six witnesses, namely Constable Jaspal Singh PW-1, Head Constable Sahib Singh PW-2, Constable Bakshish Singh PW-3, ASI Mohinder Singh PW-4, DSP Bhupinder Singh PW-5 and Inspector Krishan Kumar PW-6. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded, wherein he denied the allegations and pleaded innocence. He stated that he had been falsely implicated in the case by the police. In his defence, he examined Bhuri Kaur as DW-1 and Constable Gurmit Singh as DW-2.
5. The trial Court after appreciating evidence and other material on record, acquitted the accused-respondent of the charge framed against him on the ground that there was violation of mandatory provisions of Section 42(2) of the Act and lack of independent corroboration. The prosecution failed to prove as to how these bags were carried to the spot and what was the mode of bringing these bags to that place, as the place of recovery was government land. ASI Bhupinder Singh PW-4 has also admitted this fact in his cross-examination. The prosecution failed to connect him with the alleged recovery as the accused was not found to be in conscious possession of the bags of contraband. Crl.Misc. No. 389 MA of 2009 [4]
6. Learned counsel for the State argued that the present application has been filed on the ground that the seal on the case property was found intact by the Ilaka Magistrate and it cannot be said that the case property was tampered with at any stage. The independent witness was given up by the prosecution as he was won over by the accused.
7. We have heard the learned counsel for the parties and also perused the judgment of the trial Court.
8. The contraband was recovered from the government land which was accessible to all. The prosecution failed to connect the accused- respondent with the alleged contraband as he was not found in conscious possession of the said contraband. It has not been proved by the statements of the prosecution witnesses that the accused-appellant was found selling contraband on the government land, which was accessible to all and how that contraband reached there and who produced there, and who was owner and what was the capacity of the accused. All these facts remained unanswered. Since there was no independent corroboration, it cannot be said that the accused was in conscious possession of the contraband and thus the prosecution failed to bring home the guilt against the accused beyond a reasonable doubt.
9. Learned counsel for the State has failed to show that the judgment under challenge is perverse or based on misreading of evidence on record.
10. For the reasons mentioned above, the trial Court after taking into consideration the aforesaid factors has rightly acquitted the respondent-accused and there is no illegality or perversity in the aforesaid Crl.Misc. No. 389 MA of 2009 [5] finding recorded by the trial Court.
11. Hon'ble the Apex Court in various judgments on the question of interference against the order of acquittal including the ones reported in Harijana Thirupala and others v. Public Prosecutor, High Court of A.P. Hyderabad, 2002 (3) RCR (Crl.) 861, Shingara Singh v. State of Haryana and another 2004 (2) RCR (Crl.), 940 and State of UP v. Gambhir Singh and others AIR 2005 SC 2439, has held that if two views are possible, the view taken by the trial Court in favour of the accused for recording his acquittal should be accepted as the reasonable and possible view.
12. Therefore, the view taken by the trial Court on the basis of the evidence available on the record can also be a reasonable and possible view which, in our view, does not require any interference.
13. Thus, in the facts and circumstances of the case, we do not find any ground to grant leave to appeal.
Dismissed.
(DAYA CHAUDHARY) JUDGE (JASBIR SINGH ) JUDGE October 28, 2009 raghav