State of Himachal Pradesh vs Aman Dhama

Piar Singh Rana, J.

Order under Section 378(3) of Code of Criminal Procedure 1973:--

Present petition is filed under Section 378(3) of Code of Criminal Procedure for grant of leave to appeal against judgment of acquittal dated 8.5.2015 passed by learned Special Judge-II (Additional Sessions Judge) Kullu District Kullu in Sessions trial No. 38 of 2014 titled State of H.P. v. Aman Dhama under Section 20 of Narcotic Drugs and Psychotropic Substances Act 1985.

Brief facts of the case

It is alleged by prosecution that on 13.4.2012 at about 12.25 PM when police party headed by the then Sub Inspector Megh Singh PW8 Incharge P.P. Manikaran along with HHC Ved Ram, C. Nitin Thakur PW6 were on patrolling duty at Kasol bridge and were present near Chhalal village path then accused came carrying one rucksack bag on his left shoulder and behind the accused another person with empty hands was also coming. It is alleged by prosecution that when accused saw the police party accused got perplexed and was nabbed by police party and on asking accused disclosed his name Aman Dhama son of Shri Brij Pal Dhama resident of Noida U.P. and another person who was friend of accused disclosed his name as Nishant. It is further alleged by prosecution that rucksack bag which the accused was carrying was searched and 222 grams of charas was found. It is alleged by prosecution that codal formalities of sealing and seizure of charas were conducted at the spot and ruka Ext. PW5/A was prepared and spot map Ext. PW8/A was also prepared. It is alleged by prosecution that photographs Ext. PW8/B-1 to Ext. PW8/B-3 obtained and statements of witnesses recorded under Section 161 Cr.P.C. It is alleged by prosecution that NCB form prepared and thereafter case property was deposited in malkhana and entry recorded in malkhana register. It is alleged by prosecution that sample was sent to FSL Junga and thereafter after completion of investigation and after receipt of FSL report Ext. PW8/C case file was handed over to SHO who prepared challan and presented it in Court against accused for trial under Section 20 of NDPS Act.

Charge was framed against accused under Section 20 of Narcotic Drugs and Psychotropic Substances Act. Accused person did not plead guilty and claimed trial.

Prosecution examined nine witnesses as mentioned in annexed Form-A with judgment and also tendered documentary evidence as mentioned in annexed Form-B with judgment passed by learned Special Judge. Statement of accused under Section 313 Cr.P.C. recorded in which he has refuted the evidence led by prosecution against him. Accused did not produce any defence evidence.

Learned Special Judge-II (Additional Sessions Judge) Kullu acquitted the accused qua offence under Section 20 of NDPS Act 1985.

Feeling aggrieved against the judgment of acquittal passed by learned trial Court State of H.P. sought permission for grant of leave to appeal under Section 378(3) of Code of Criminal Procedure against judgment of acquittal.

We have heard learned Assistant Advocate General appearing on behalf of the petitioner and also perused the judgment of learned trial Court.

Following points arise for determination in present petition:--

"1. Whether it is expedient in the ends of justice to grant leave to appeal under Section 378(3) of Code of Criminal Procedure against judgment of acquittal dated 8.5.2015 passed by learned Special Judge-II (Additional Sessions Judge) Kullu in Sessions trial No. 38 of 2014 under Section 20 of NDPS Act as mentioned in memorandum of grounds of petition?

Final Order."

Findings on Point No. 1 with reasons

In present case prosecution has examined nine witnesses namely PW1 HC Gian Chand, PW2 Padam Singh, PW3 HC Balbir Sharma, PW4 C. Povinder Thakur, PW5 SI Om Chand, PW6 C. Nitin, PW7 SI Ashok Kumar, PW8 Megh Singh and PW9 Inspector Sher Singh. No independent witness is examined by prosecution in present case. Recovery memo of contraband is substantial piece of evidence and in recovery memo of contraband no independent witness is cited and only official witnesses are cited. Meticulous examination of original record is essential in present case in order to properly examine the reasons given for acquittal by learned Special Judge-II (Additional Sessions Judge) Kullu mentioned in para No. 12 of judgment.

Concept falsus in uno falsus in omnibus is not applicable in criminal law. See: Bhe Ram Vs. State of Haryana, . See: Rai Singh Vs. The State of Haryana, . In an appeal against acquittal High Court is entitled to re-appreciate the evidence if it is found that view taken by acquitting Court was not a possible view or that it has a perverse or infirm or erroneous view and where admissible evidence is ignored by learned trial Court then duty is imposed upon appellate Court to re-appreciate evidence when accused has been acquitted by learned trial Court. See Hari Chand and Another Vs. State of Delhi, . See Uppari Venkataswamy and Others Vs. The Public Prosecutor, High Court of A.P., . See State of Punjab Vs. Ajaib Singh, . See Hari Ram and Others Vs. State of Rajasthan, . See Narinder Singh and Another Vs. State of Punjab, . See Anil Kumar Vs. State of U.P., . See State of Punjab Vs. Karnail Singh, . See State of U.P. Vs. Babu and Others, . See State of Madhya Pradesh Vs. Bacchudas @ Balram and Others, .

There is no evidence on record that police officials have hostile animus against accused at any point of time prior to the incident. It was held in case reported in AIR 1972 SC 2783 titled Nathu Singh v. State of M.P. that mere fact that witnesses examined in support of prosecution are police officials is not enough to discard their testimonies. It was held that police officials cannot be treated as interested witnesses. It was held that testimonies of police officials can be relied if testimony of police official is trustworthy reliable and inspires confidence of Court. See State of Gujarat Vs. Raghunath Vamanrao Baxi, . It is well settled law that offences under NDPS Act are offences against the society and it is well settled law that criminals dealing in NDPS are spoiling the career of young youths who are wealth of Nation. It is well settled law that Court should be very conscious while dealing criminal offences relating to public at large. In view of above stated facts it is held that it is expedient in the ends of justice to allow the petition filed under Section 378(3) of Code of Criminal Procedure. Point No. 1 is answered in affirmative in favour of petitioner/appellant.

Point No. 2 (Final Order)

In view of my findings on point No. 1 petition filed under Section 378(3) of Code of Criminal Procedure 1973 against the judgment of acquittal dated 8.5.2015 passed by learned Special Judge-II (Additional Sessions Judge) Kullu under Section 20 of NDPS Act is allowed and pre-admission notice of appeal be issued to non-petitioner Aman Dhama son of Shri Brij Pal Dhama for 1.1.2016. In the meanwhile record of learned trial Court be also called for. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of present petition filed under Section 378(3) of Code of Criminal Procedure 1973. Petition filed under Section 378(3) of Code of Criminal Procedure stands disposed of.