JUDGMENT Mr. Rameshwar Singh Malik, J.: - Crl. Misc. No. 18024 of 2012 1. The applicant seeks condonation of delay of 137 days, in filing the application under Section 378 (3) of the Code of Criminal Procedure (‘Cr.P.C.’ for short), for leave to file an appeal against the judgment of acquittal. 2. After hearing the learned counsel for the parties, we are satisfied that the reasons given in the application are sufficient to condone the delay. 3. In view of the above, the instant application is allowed for the reasons stated therein and delay of the 137 days is condoned. Criminal Misc. No. 207-MA of 2012 4. This application has been filed under Section 378 (3) Cr.P.C., seeking leave to file appeal against the judgment dated 14.7.2011, thereby acquitting the respondent of the charge framed against him. 5. The allegation against the respondent was that he was found with two plastic bags, each containing 26 Kgs of poppy husk. Having been suspected, the search was conducted as per law and recovery was effected. 6. Learned trial court noted the following facts in para 2 of the impugned judgment:- “The prosecution story, in brief, is that on 9.6.2005, Police party headed by Mukhtiar Singh, ASI of Police Station, Dakha was present in the area of Village Talwandi Khurd, while on patrolling duty. It was evening time and one person was seen sitting on small plastic bag in Sarkanda along with drain; that on seeing the police officials, the said person tried to slip away, but was apprehended and on inquiry, he disclosed his name as Punjab Singh son of Jetha Singh, resident of village Kotli, Police Station, Hambran. Two plastic bags were also found at the spot, out of which mouth of one was lying open and it was containing poppy husk and one liter can was also found at the spot. Two plastic bags were also found at the spot, out of which mouth of one was lying open and it was containing poppy husk and one liter can was also found at the spot. Mukhtiar Singh, ASI apprised Punjab Singh of his legal right of search in the presence of Gazzetted Officer or Magistrate, as some contraband was suspected in said two bags; that on this, accused Punjab Singh reposed confidence in Mukhtiar Singh, ASI and to this effect, separate consent statement of accused Punjab Singh was recorded; that photographer was also called at the spot; that on checking both the said two bags were found to be containing poppy husk and two samples of 100 grams each of poppy husk were separated from the said two bags each and remaining bulk in each bag came out to be 26 kg. each. That then four samples and two bags containing remaining bulk were sealed by Mukhtiar Singh, ASI with his seal bearing impression MS and separate sample seal slip was handed over his seal to Nirmal Singh, Head Constable and then the entire case property was taken into possession, vide separate memo; that the investigating officer also prepared ruqa and sent the same to the police station and consequently FIR was registered in this case. The accused was formally arrested and rough site plan of the place of recovery was also prepared and statements of prosecution witnesses were recorded; that on return to police Station, accused along with case property was produced before Sat Pal, Officiating SHO/SI, who after verifying the acts of the case appended his seal bearing impression SP, on the entire case property and then case property was deposited with Subeg Singh, MHC and the accused was sent to Police lock up; that; on the next day, the accused along with case property was produced before the concerned Magistrate by Gurdial Singh, ASI; that on 21.6.2005, two samples relating to this case were sent to the FSL, Punjab Chandigarh through Jasbir Singh, Head Constable. That on completion of investigation, challan was presented against the accused.” 7. Investigation was carried out and on completion thereof, report under Section 173 Cr.P.C., was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused, as per law. Having found prima facie case, charge was framed against the respondent who pleaded not guilty and claimed trial. Investigation was carried out and on completion thereof, report under Section 173 Cr.P.C., was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused, as per law. Having found prima facie case, charge was framed against the respondent who pleaded not guilty and claimed trial. 8. The prosecution, with a view to prove its case, examined as many as six PWs, besides tendering the relevant documents in evidence. After conclusion of the prosecution evidence, statement of the accused-respondent was recorded under Section 313 Cr.P.C. The incriminating evidence brought on recorded was put to the accused, who pleaded false implication and claimed complete innocence. However, accused did not lead any defence evidence. 9. After hearing the counsel for the parties and going through the record of the case, the learned trial court, vide its judgment dated 14.7.2011, held that prosecution failed to prove its case. Giving benefit of doubt, the accused-respondent was acquitted of the charge framed against him. 10. Feeling aggrieved against the above said judgment of acquittal, the State of Punjab has filed the present application under Section 378 (3) Cr.P.C., seeking leave to file appeal. That is how, this Court is seized of the matter. 11. Learned counsel for the applicant-State vehemently contended that the learned trial court has proceeded on an erroneous approach, while passing the impugned judgment. It was further contended that since the learned trial court has failed to appreciate the evidence in the right perspective, the impugned judgment was liable to be set aside. 12. We have heard the learned counsel for the applicant and with his able assistance, have gone through the record of the case. 13. Having given our thoughtful consideration to the contentions raised and in view of the peculiar fact situation of the present case, this Court is of the considered opinion that present one is not a fit case for granting leave to file appeal. We say so for more than one reasons, being recorded hereinafter. 14. Firstly, careful perusal of the impugned judgment shows that the learned trial court has rightly appreciated the evidence brought on record by the prosecution. Further, the learned trial court has rightly given the benefit of doubt to the respondent-accused. There were very many serious discrepancies in the evidence led by the prosecution. The Chemical Examiner’s report Ex.PH was also found defective. Further, the learned trial court has rightly given the benefit of doubt to the respondent-accused. There were very many serious discrepancies in the evidence led by the prosecution. The Chemical Examiner’s report Ex.PH was also found defective. The alleged recovered contraband was found only 26 kgs and 200 gms and not 52 kgs, as alleged. The link evidence was also found missing. There was an unexplained delay of more than 10 days in sending the sample for analysis. 15. Secondly, despite the admitted fact by PW-1 (ASI Mukhtiar Singh) that place of recovery was a thoroughfare, no independent witness was associated at the time of the alleged recovery. No explanation was forthcoming. The learned trial court has recorded cogent findings before passing the impugned judgment of acquittal. The relevant findings recorded by the learned trial court are as under:- “As per prosecution version in the present case, the case property was deposited with Subeg Singh, MHC, who is reported to have died. Prosecution placed on file affidavit Ex.PAA of Subeg Singh, MHC but the same is inadmissible in evidence, as the said police officials never appeared in the Court for his cross examination and thus, link evidence is missing. In this context, reference be made to Raj Bahadur case (supra) which has been relied upon by defence Counsel. Also from the perusal of testimony of PW1 and PW2, it appears that alleged recovery of poppy husk was affected after 4:45 pm. on 9.6.2005, on the other hand. PW6 stated that the seals on the case property were affixed at about 11:00 A.M./12:00 Noon, thus making the prosecution story doubtful. The original of police request Ex. PBB dated 10.6.2005 is not produced in the Court. Also no order of the concerned Magistrate is available on the judicial file to show that the case property was produced before the concerned Magistrate on the very next day of the recovery. The cumulative affect of all the aforesaid circumstances is that prosecution has failed to prove its case beyond shadow of doubt against accused, Punjab Singh.” 16. Keeping in view of the peculiar fact situation of the present case, this Court is of the considered opinion that the learned trial court has not committed any illegality or perversity, which is the sine qua non for interference in the judgment of acquittal. Keeping in view of the peculiar fact situation of the present case, this Court is of the considered opinion that the learned trial court has not committed any illegality or perversity, which is the sine qua non for interference in the judgment of acquittal. Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of acquittal, is to be preferred. 17. Thirdly, the view taken by this Court also finds support from the judgment of the Hon’ble Surpeme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. [2009(5) Law Herald (SC) 3494] : 2009(4) RCR (Crl.) 638. The relevant observations made by the Hon’ble Supreme Court in para No.39, 40 and 41 in the case of Arulvelu’s case (Supra) read as under: In Ghurey Lal v. State of Uttar Pradesh [2008(4) Law Herald (SC) 2817] : (2008) 10 SCC 450 , a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. 3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 4. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh [2009(6) Law Herald (SC) 4000] : 2009 (11) SCALE 699 again examined judgments of this Court and laid down that “An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases.” 41. Careful scrutiny of all these judgments lead to thedefinite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court’s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. 18. In ‘Mrinal Das & others, V. The State of Tripura’, [2011(6) Law Herald (SC) 4149] : 2011(9) SCC 479 , decided on September 5, 2011, the Hon’ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :- An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” 19. Similarly, in the case of ‘State of Rajasthan v. Shera Ram alias Vishnu Dutta, [2012(1) Law Herald (SC) 751] : (2012) 1 SCC 602 ’, the Hon’ble Supreme Court has observed as under:- “7. Similarly, in the case of ‘State of Rajasthan v. Shera Ram alias Vishnu Dutta, [2012(1) Law Herald (SC) 751] : (2012) 1 SCC 602 ’, the Hon’ble Supreme Court has observed as under:- “7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal. 8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.” 20. Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.” 21. No other argument was raised. 22. Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the learned trial court has not committed any illegality, while passing the impugned order. No case for interference has been made out. 23. Resultantly, the application under Section 378 (3) Cr.P.C., seeking leave to file appeal against impugned judgment of acquittal is ordered to be dismissed.