State of Uttarakhand vs Malkeet Singh

Dharam Veer, J.—The present leave to appeal application has been preferred by the applicant/appellant/State u/s 378(3) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) with a prayer to grant leave to the applicant/appellant/State to file the appeal against the acquittal of the respondent for the offence punishable u/s 8/20 of the Narcotics Drugs & Psychotropic Substances Act, 1985 {hereinafter to be referred as the Act} vide judgment and order dated 12.3.2010 passed by the Special Sessions Judge, Champawat in Special S.T. No. 20/2007 State v. Malkit Singh.

Heard Mr. Amit Bhatt, learned Additional Government Advocate for the State/applicant/appellant and perused the entire material available on record.

It was argued by learned Addl. GA that about 1� kilograms of Charas was said to be recovered from the possession of the accused/respondent and the trial court has erred in recording the acquittal of the respondents.

The trial court has acquitted the accused/respondent firstly on the ground that on 3.1.2008 when the said Charas was produced before the trial court, that was not the same Charas which was said to be recovered from the possession of the respondent. Even PW3 Constable Bhupal Singh has stated that on that day, there is no entry of taking out of Charas from the Maalkhana and thus, it creates a reasonable doubt in the prosecution story.

The second ground recorded by the trial court for acquittal of respondent is that the Namoona Mohar which was prepared at the time of arrest, was not produced by the prosecution before the trial court, which also creates a reasonable doubt in the prosecution story.

The third ground recorded by the trial court is that as per the prosecution case, about 100 grams of Charas was sent for the chemical examination and that was also been weighed by the electronic weighing machine, however, as per the report of Chemical Laboratory, the Charas received by them is about 77.1 grams and net weight thereof is 70.6 grams without packing. The prosecution could not prove before the trial court as to where about 29.4 grams of remaining Charas had gone. This fact also proves that the Charas said to be recovered from the possession of the respondent was not sent for the chemical examination, which further goes to create a reasonable doubt in the prosecution story.

Thus, as per the above-said discussion, the prosecution has failed to prove the link evidence. Even the prosecution failed to establish that the contraband, which was shown to be recovered from the respondent, was the same which was sent to the chemical laboratory for the examination. The above view taken stands fortified from a judgment delivered by Hon''ble Apex Court in the case of State of Rajasthan v. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same are reproduced hereunder:

...we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW 6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.

We find no error in the judgment of the High Court.

This appeal is, therefore, dismissed.

Therefore, in view of the above-said facts and circumstances of the case as well as in view of the aforesaid dictum of the Hon''ble Apex Court, the prosecution could not prove its case beyond reasonable doubt for the offence punishable u/s 8/20 of the Act against the respondent Malkit Singh and the trial court was absolutely correct and justified in recording the acquittal of the respondent-Malkit Singh. On a careful perusal of the judgment and order passed by the trial court, I do not find any illegality or irregularity committed by the trial court in acquitting the respondents. The judgment and order dated 12.03.2010 passed by the Special Sessions Judge, Champawat is correct and justified as per the record available with the trial court.

Further, it is settled law that where two views are possible and one of the views is also possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon''ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under:

The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible.

We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case.

On the basis of the evidence discussed above, I am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the view taken by the trial court must be accepted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, therefore, the prosecution has not able to prove its case against the respondents beyond reasonable doubt.

For the reasons as aforesaid, I do not find it a fit case to grant leave to appeal. Therefore, the leave to appeal is refused. Leave to appeal application is dismissed. Consequently, the appeal also stands dismissed.