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2015 DIGILAW 1888 (HP)

STATE OF HIMACHAL PRADESH v. JOGINDER SINGH

2015-12-15

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. 1. We have perused the entire record of the trial Court, so made available by Mr. R.S. Verma, learned Additional Advocate General, which stands returned. 2. Assailing the judgment dated 02.05.2015, passed by Special Judge(II), Mandi, District Mandi, H.P. in Session Trial No.23/2011, titled as State of Himachal Pradesh v. Joginder Singh, whereby accused Joginder Singh stands acquitted, State has filed the present leave to appeal under the provisions of Section 378 (3) of the Code of Criminal Procedure, 1973. 3. Respondent-accused was charged to face trial for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), in relation to FIR No.231/2010, dated 15.12.2010, registered at Police Station, Sundernagar, District Mandi, H.P. 4. Trial Court has found the prosecution not to have established, beyond reasonable doubt, recovery of 300 grams of charas (cannabis) from the conscious and exclusive possession of the accused. In the instant case, no independent witness was associated while conducting search or recovering the contraband substance. 5. Through the testimonies of Anant Ram (PW.1), Pawan Kumar (PW.2) and ASI Mulak Raj (PW.9), prosecution wants the Court to believe that in the night intervening 14/15.12.2010, at about 2.40 AM, accused who was apprehended at bus-stand Sundernagar, was carrying 300 grams of cannabis. We find the witnesses to have admitted presence of independent witness on the spot. Passengers were sitting in the buses at the bus-stand, yet none were associated. As to whether endeavour was made to associate independent witness or not, we find there material contradiction in the testimonies of Anant Ram (PW.1) and Bhoop Singh (PW.5). We find prior to the accused being searched, no memo was prepared, as none is on record. No doubt, alleged recovery was effected from the bag of the accused, but then accused was searched and police ought to have prepared some documents. Non preparation thereof only renders prosecution version to be doubtful. This we say so, in view of other contradictions, which we find to be material, in the manner in which accused was nabbed and searched. Testimonies of Anant Ram (PW.1), Pawan Kumar (PW.2) and Bhoop Singh (PW.5) only highlight the contradictions to be material. 6. We also find that the original seal has not been produced in the Court. This we say so, in view of other contradictions, which we find to be material, in the manner in which accused was nabbed and searched. Testimonies of Anant Ram (PW.1), Pawan Kumar (PW.2) and Bhoop Singh (PW.5) only highlight the contradictions to be material. 6. We also find that the original seal has not been produced in the Court. In the backdrop, this fact further renders the case to be doubtful and as such, we see no reason to interfere with the impugned judgment, which cannot be said to be based on incorrect application of law or improper and incomplete appreciation of evidence. 7. Court does not find prosecution to have proved its case, beyond reasonable doubt, that the accused was found in conscious and exclusive possession of 300 grams of cannabis, by leading clear, cogent, convincing piece of evidence 8. The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of the Court below is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 9. The accused person has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. 10. For all the aforesaid reasons, present leave to appeal, being devoid of merit, is dismissed, so also the pending application(s), if any.