State of Haryana vs Mahabir

P.K. Jain, J.

This appeal has been preferred by the State of Haryana against the judgment dated 4.7.1991 passed by the Additional Sessions Judge, Hisar, whereby the respondent has been acquitted of the charge framed under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'').

The facts necessary for the disposal of this appeal, which can be gathered from the record of the Trial Court are, that on 16.1.1990 S.I. Sukhraj Singh (S.H.O. Police Station Tohana) along with his companions was going towards village Bhimewala for the investigation of a murder case. Near the crossing of Tohana, certain police officials on patrolling duty joined them. One Surjit Singh son of Narang Singh who happened to pass thereby, was also taken by the police party with it. On the metalled road at the turning of Bhimewala, the respondent was sighted having a bag in his right hand coming from the side of Surewala chowk. On seeing the police Gypsy, he turned towards his right and hid himself behind a room constructed at bus stand Bhimewala. On suspicion the respondent was overpowered and detained. S.I. Sukhraj Singh expressed his suspicion that the respondent was carrying opium in his bag and if the respondent so desired, he could be searched in the presence of some Gazetted Officer or a Magistrate.. Memo Ex.PB was prepared. The respondent declined the offer and reposed confidence in S.I. Sukhraj Singh vide his reply Ex.PB/1. On conducting search of the bag, opium weighing 4 kilograms was recovered. Fifty grams of the contents were separated by way of sample. The sample and the remaining contraband were converted into two separate sealed parcels with the seal of SS and seal after use was handed over to Surjit Singh. The parcels were taken into possession vide memo Ex.PC. A ruqa Ex. PD was sent through Constable Dhoop Singh on the basis of which formal F.I.R. carbon copy of which is Ex. PD/1 was recorded at Police Station Tohana. Site plan Ex.PE of the place of the recovery was prepared. Statements of the witnesses were recorded. S.I. Sukhraj Singh produced both the sealed parcels, the respondent and his report Ex.PA before Deputy Superintendent of Police, Tohana. On verification, the said D.S.P. fixed his own seal on both the sealed parcels and also signed the report Ex. PA. On his direction, the case property was deposited in the `Malkhana''. Sealed sample parcel was sent to the office of Forensic Science Laboratory and the report Ex. PG was received. After completing the investigation, a chargesheet was filed in the Court.

A charge under Section 18 of the Act was framed against the respondent, to which he pleaded not guilty and claimed trial.

In support of its case, prosecution examined five witnesses. A.S.I. Attar Singh (PW2) is a witness of recovery and was a member of the police party. S.I. Sukhraj Singh (P.W. 3) had detained and searched the respondent and also recovered the contraband from the bag found in possession of the respondent. Later on he had produced the sealed parcels and the respondent before D.S.P. Jai Narain (PW1) who in turn had affixed his own seal of impression JNS on both sealed parcels. Head Constable Raj Singh (PW4) was M.H.C. at Police Station Tohana with whom the case property was deposited. He has tendered his affidavit Ex.PF in evidence. Constable Lila Ram (PW5) had taken the sealed sample parcel from Moharar Malkhana and deposited the same in the office of the Forensic Science Laboratory, Madhuban. He has tendered his affidavit Ex.PJ in evidence. Report Ex.PG of Assistant Chemical Examiner was also tendered in prosecution evidence.

In his examination under Section 313 of the Code of Criminal Procedure, the respondent denied the allegations of the prosecution and pleaded innocence and false implication. He has examined one witness Tekka in his defence. According to this witness, the respondent had been taken away by one Head Constable and two constables from village Bithmara and on their enquiry the police had disclosed that they were to make some enquiry from the respondent with respect to a murder case but it was revealed that the respondent was implicated in an opium case falsely.

On an appraisal of the evidence produced on the record, the learned trial Court came to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt and acquitted the respondent by giving him the benefit of doubt. It has been found as a fact by the Trial Court that provisions of Sections 50, 52 and 57 of the Act were not complied with, that record has been manipulated to show the compliance of Section 57 of the Act, and that independent public witness Surjit Singh has not been produced by the prosecution and in his absence no reliance can be placed on the testimony of police officials. Feeling aggrieved, State of Haryana has come up in appeal.

We have heard the learned counsel for the parties and have perused the record of the Trial Court with their active help.

Shri N.K. Sanghi, learned Deputy Advocate General, Haryana, has argued that Surjit Singh, public witness who joined raiding party had been won over by the respondent and as such was given up, and that nonexamination of Surjit Singh does not affect the prosecution case in any manner. In support of this plea, he has placed reliance upon a judgment of the Apex Court rendered in Appabhai and another v. State of Gujarat, 1988 Criminal Appeal Reporter 84 (SC), and judgment of this Court reported as Om Parkash v. State of Haryana, 1988(1) All India Criminal Law Reporter 611. It has been further argued by the learned Deputy Advocate General that the provisions of Sections 50, 52 and 57 of the Act have been fully complied with, and the Trial Court fell in error in not appreciating the evidence produced on record in a just and proper manner. It has also been pointed out that the recovery of 4 Kgs of opium in itself is a guarantee of the truthful version put forward by the prosecution.

On the other hand, Shri M.S. Ratta, Advocate, the learned counsel for the respondent has argued that the learned trial court has appreciated the oral as well as documentary evidence and thereafter has concluded that the prosecution has not been able to prove its case beyond reasonable doubt, and that such a finding of acquittal ought not to be disturbed unless the judgment is unreasonable or perverse. It has been argued by the learned counsel that right from the beginning when the respondent is alleged to have been sighted along with a bag in his hand till the case property and the respondent are stated to have been produced before D.S.P. Jai Narain (PW1), Surjit Singh an independent public person is stated to be present but he has not been examined on a flimsy ground that he has been won over by the respondent. According to the learned counsel, Surjit Singh could have been the best witness to depose about compliance of Section 50 and the alleged recovery of opium from the possession of the appellant as well as the safe custody of the sealed parcels. It has also been pointed out by the learned counsel that the entire prosecution story is highly improbable and has been fabricated while sitting at the Police Station.

We have given our careful thought to the respective arguments advanced at the Bar.

It is now wellsettled that although the Code of Criminal Procedure makes no distinction between an appeal from an acquittal and an appeal from a conviction, yet according to a volume of caselaw on the subject, Appeals against acquittal are to be judged by a standard different from that applicable to those against conviction. The initial presumption of innocence is strengthened by acquittal from the trial court, and the Court of appeal will interfere only if is proved, without any doubt, not only that the accused person is guilty but that he has been acquitted on unreasonable grounds. If on appraisal of the evidence and on considering the relevant attending circumstances it is found that two views are possible, one as held by the trial Court for acquitting the accused, and the other for convicting the accused, the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial Court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal. These views find affirmation in two recent judgments of the apex Court rendered in Ramesh Babulal Doshi v. State of Gujarat, 1996(3) RCR (Crl.) 188 : J.T. 1996(6) S.C. 79 , and Dhanna etc. v. State of Madhya Pradesh, 1996(3) RCR (Crl.) 223 : J.T. 1996(6) S.C. 652. Keeping in view these principles, we proceed to examine the present case.

After perusing the record, we are of the view that the origin and genesis of the prosecution story does not inspire confidence. According to A.S.I. Attar Singh (PW2) the police party had left Police Station Tohana at about 2 or 2.30 P.M. for village Bhimewala for the investigation of a murder case. The distance between Police Station Tohana and village Bhimewala is about 17/18 kilometres. The police party was going in a Gypsy. The distance of 17/18 kilometres can easily be covered within half an hour. It does not stand to reason as to why the police party was present at the turning point of village Bhimewala at about 5 P.M., particularly when it was proceeding for investigating the murder case. Further, the ruqa Ex. PD is stated to have been sent at 6.15 P.M. from the turning point of village Bhimewala through Constable Dhoop Singh who had gone on foot as per testimony of A.S.I. Attar Singh (PW2). The distance between the place of recovery and the Police Station Tohana is stated to be 14 kilometres in the First Information Report copy of which is Ex. PD/1. Constable Dhoop Singh has not been produced by the prosecution nor his statement under Section 161 of the Code of Criminal Procedure was recorded by the Investigating Officer. It is highly improbable that Constable Dhoop Singh could have travelled 28 kilometres on foot for going to and coming from Police Station Tohana for the registration of the case. Still further, the special report Ex. PA has been held by the trial Court to have been manipulated later on for the obvious reason that there is no mention thereof in the report filed under Section 173 of the Code of Criminal Procedure in the Court. Meaning thereby this document has been prepared later on sensing that compliance of Section 57 of the Act was essential, if not mandatory. These facts do reflect a doubt on the prosecution story.

According to the prosecution, Surjit Singh a public witness was joined in the police party. This witness was present when the respondent is stated to have been apprised of his right as envisaged by Section 50 of the Act and his reply was recorded. This witness is stated to be present at the time of alleged recovery of opium and converting the same into two sealed parcels. It is this witness to whom the seal after use is stated to have been entrusted. This witness is stated to have been present when the case property and the respondent along with the special report Ex. PA were produced before D.S.P. Jai Narain (PW1). Thus, Surjit Singh could have been the best witness to corroborate the prosecution case in material particulars. He has been given up as having been won over by the respondent. There is nothing on the record to show as to how the prosecution felt that the witness has been won over. Such a material witness must have been produced and examined at the trial, even though he had been won over so that truth could have been elicited from him by his crossexamination. Nonexamination of such a witness reflects a grave doubt on the credibility of the three prosecution witnesses examined at the trial. Further, the prosecution has not produced a copy of the daily diary to show as to on which date this witness had returned the seal so that possibility of tampering with the sealed sample parcel could have been ruled out. Similarly to prove that the respondent was apprised of his right, as required by Section 50 of the Act, to be searched before a Gazetted Officer or a Magistrate, and that the respondent waived his said right and had reposed confidence in S.I. Sukhraj Singh, Surjit Singh could have been the best witness to depose about correctness thereof particularly at a time when the case of the defence is that all these papers were prepared at the Police Station, and in reality the report Ex. PA is found to have been manipulated later on.

In view of the above discussion, it cannot be said that the conclusions of the trial Court drawn on the evidence on record are unreasonable, perverse or unsustainable. On a scrutiny of the entire prosecution evidence produced by the prosecution at the trial, we are of the view that there is no cogent and credible evidence to prove that the provisions of Section 50 of the Act had been complied with, and the alleged opium was recovered from the respondent. We are also of the view that the prosecution has failed to rule out the possibility of the sealed sample parcel not having been tampered with by anybody till it reached the hands of the Assistant Chemical Examiner. In these circumstances, the order of acquittal recorded by the trial Court cannot be interfered with merely on surmises or conjecturers.

For the reasons mentioned above, we do not find any merit in this appeal and the same is hereby dismissed.