State of Punjab vs Mohinder Singh

Adarsh Kumar Goel, J.—The State has preferred this appeal against acquittal of the respondent of the charge under Sections 18 of the NDPS Act, 1985 (for short, "the Act"),. Case of the prosecution is that on 04.04.1989 at 6.30 P.M., ASI Skattar Singh apprehended the respondent in Village Rampur and found him in possession of 3 kg. of opium wrapped in glazed paper and concealed in an old towel. After completing the investigation and receipt of report from the Chemical Examiner, the accused was challaned. The accused denied the charge and claimed trial.

Prosecution examined HC Darshan Singh, PW-1, SI Sant Kumar, PW-2, HC Malkiat Singh, PW-3, Constable Chaman Lal, PW-4 and SI Skattar Singh as PW-5.

The accused took the plea that he had a dispute with his wife on account of which, he was called by the police and falsely implicated in the case. He stated that no recovery was effected from him. He examined Bachan Singh, Lamberdar, DW-1.

After considering the evidence on record, the trial Court held that the case of the prosecution was not proved beyond reasonable doubt and acquitted the respondent, inter-alia, for the following reasons:

(i) There was violation of Section 50 of the Act, as search was not conducted in the presence of a Gazetted Officer or a Magistrate.

(ii) There were material discrepancies in the evidence of Darshan Singh, PW-1 and Skattar Singh, PW-5 who were witnesses of the recovery, which created a doubt about presence of witnesses at the time of alleged recovery; ASI Skattar Singh stated that he sent special intimation through wireless message, but he was unable to show any entry regarding the same.

(iii) No independent witness was examined nor it was stated that no independent witness was available.

(iv) There was gross delay in sending the sample to the Chemical Examiner; the recovery was effected on 04.04.1989 while sample was sent only on 20.06.1989.

We have heard learned Counsel for the State and perused the findings recorded by the trial Court. Learned Counsel for the State has not been able to show that all the reasons recorded by the trial Court were unreasonable or perverse. Even if it is accepted that Section 50 of the Act was not attracted, the very fact of recovery having been held to have not been proved, we do not find any ground to interfere with the acquittal of the respondents. Scope of appeal against acquittal has been gone into by the Hon''ble Supreme Court, inter-alia, in Jaswant Singh v. State of Haryana AIR 2000 SC 1833, wherein it was observed:

The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, . The principle was elucidated in Ramesh Babulal Doshi Vs. State of Gujarat, :

While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions.

We, therefore, do not find any ground to interfere with the order of acquittal of the respondents. The appeal is dismissed.