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Himachal Pradesh High Court · body

2015 DIGILAW 1896 (HP)

State of Himachal Pradesh v. Kamaljeet

2015-12-16

P.S.RANA, RAJIV SHARMA

body2015
JUDGMENT : P.S. Rana, J. Order under Section 378(3) of Code of Criminal Procedure 1973:- Present petition is filed under Section 378 of Code of Criminal Procedure 1973 for grant of leave to appeal against judgment of acquittal dated 23.5.2015 passed by learned Special Judge-II (Additional Sessions Judge) Kullu District Kullu in Sessions trial No. 103 of 2014 titled State of H.P. vs. Kamaljeet under Section 20 of Narcotic Drugs and Psychotropic Substances Act 1985. Brief facts of the case 2. It is alleged by prosecution that on the evening of 26.10.2013 at about 7.50 PM HC Alam Gir Investigator was on checking duty due to Dussehra festival at Bajaura Check Post along with other police officials consisting of HHC Amar Chand, HHC Balbir Singh and HC Rakesh Kumar with dog squad. It is alleged by prosecution that a CTU bus bearing registration No. CH- 01G-7538 came from Manali side and intercepted for checking. It is alleged by prosecution that Investigating Officer PW10 HC Alam Gir along with other police officials boarded the bus from rear window for checking and PW5 Anup Sharma driver and PW6 Ashok Kumar conductor of bus were also associated and while checking the passengers and their luggage Investigating Officer PW10 HC Alam Gir reached near seat No. 39 where accused was found sitting and when he saw the police officials he got perplexed and thereafter police officials asked his name and accused disclosed his name as Kamaljit. It is alleged by prosecution that accused was carrying one red and grey coloured bag with strips on his lap. It is alleged by prosecution that on suspicion the bag of accused was searched in presence of PW5 Anup Kumar driver and PW6 Ashok Kumar conductor of bus as well as in presence of PW2 HHC Amar Chand and 1 Kg. 150 grams charas was found. It is alleged by prosecution that codal formalities of sealing and seizure completed and separate seal was obtained upon piece of cloth Ext.PW5/A and NCB form was filled and seal after use was handed over to PW5 Anup Kumar driver. It is alleged by prosecution that thereafter ruka Ext.PW2/C was prepared and sent to police station for registration of FIR. It is alleged by prosecution that spot map Ext.PW10/A was prepared and statements of witnesses recorded. It is alleged by prosecution that thereafter ruka Ext.PW2/C was prepared and sent to police station for registration of FIR. It is alleged by prosecution that spot map Ext.PW10/A was prepared and statements of witnesses recorded. It is further alleged by prosecution that SHO/SI Lal Chand resealed the case property after filling relevant columns of NCB form and thereafter case property was deposited in malkhana register and thereafter case property along with specimen seal, NCB form and other relevant documents were deposited in the office of FSL Junga. It is also alleged by prosecution that special report Ext.PW3/B was sent to Additional S.P. who after making endorsement Ext.PW3/C upon special report handed over the same to his Reader. It is alleged by prosecution that statements of witnesses recorded and after receipt of FSL report Ext.PX the case file was handed over to the then SHO who prepared challan under Section 173 of Code of Criminal Procedure 1973 and filed the same in criminal Court for trial. 3. Charge was framed against the accused under Section 20 of Narcotic Drugs and Psychotropic Substances Act 1985. Accused person did not plead guilty and claimed trial. 4. Prosecution examined eleven witnesses namely PW1 HC Gian Chand, PW2 HHC Amar Chand, PW3 HC Nirat Singh, PW4 ASI Rajesh Kumar, PW5 Anup Sharma, PW6 Ashok Kumar, PW7 ASI Ram Nath, PW8 HC Tarun Kumar, PW9 HHC Ishwari Ram, PW10 HC Alam Gir and PW11 SI Lal Chand as mentioned in annexed Form list of witnesses with judgment and also tendered documentary evidence as mentioned in annexed Form list of exhibits with judgment. Statement of accused under Section 313 Cr.P.C. recorded. Accused did not lead any defence evidence. 5. Learned Special Judge-II Kullu acquitted the accused person qua offence under Section 20 of NDPS Act 1985 after giving him benefit of doubt. 6. Feeling aggrieved against the judgment passed by learned trial Court State of H.P. filed present appeal against acquittal and sought permission for grant of leave to appeal. 7. We have heard learned Assistant Advocate General appearing on behalf of the petitioner and also perused the record. 8. Following points arise for determination in present petition:- 1. 6. Feeling aggrieved against the judgment passed by learned trial Court State of H.P. filed present appeal against acquittal and sought permission for grant of leave to appeal. 7. We have heard learned Assistant Advocate General appearing on behalf of the petitioner and also perused the record. 8. 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 1973 against judgment of acquittal dated 23.5.2015 passed by learned Special Judge-II Kullu in Sessions trial No. 103 of 2014 titled State of H.P. vs. Kamaljeet as alleged in memorandum of grounds of petition? 2. Final Order. Findings on Point No.1 with reasons 9. Learned Special Judge-II Kullu acquitted the accused by way of giving him benefit of doubt on the ground that seizure memo of contraband is substantial piece of evidence and three witnesses namely PW5 Anup Sharma driver, PW6 Ashok Kumar conductor and PW2 HHC Amar Chand have signed the substantial document i.e. seizure memo of contraband and PW5 Anup Sharma, PW6 Ashok Kumar and PW2 HHC Amar Chand are marginal witnesses of seizure memo of contraband. We are of the opinion that testimonies of PW2 HHC Amar Chand, PW5 Anup Sharma and PW6 Ashok Kumar who are marginal witnesses of seizure memo of contraband are material for just decision of case. 10. PW5 Anup Sharma driver, PW6 Ashok Kumar conductor who are marginal witnesses of seizure memo have specifically stated in positive manner when they appeared in witness box before learned trial Court that no contraband was recovered from conscious and exclusive possession of accused in their presence. On the contrary PW2 HHC Amar Chand official witness has stated that contraband was recovered from conscious and exclusive possession of accused. There is material contradiction between testimonies of marginal witnesses of seizure memo. PWs 5 and 6 independent witnesses did not support the prosecution story and PW2 HHC Amar Chand has supported the prosecution story as alleged by prosecution. We are of the opinion that two views have emerged in present case relating to recovery of contraband from exclusive and conscious possession of accused. It is well settled law that when two contradictory views are possible as per testimonies of eye witnesses then view favourable to accused should be adopted by Court. We are of the opinion that two views have emerged in present case relating to recovery of contraband from exclusive and conscious possession of accused. It is well settled law that when two contradictory views are possible as per testimonies of eye witnesses then view favourable to accused should be adopted by Court. Learned trial Court has specifically held in judgment that there is material improvement and contradiction in testimonies of police officials. It is well settled law that if two views have emerged in the prosecution case then view favourable to the accused has to be taken into consideration. See: 1998(2) SLJ 1408, titled Shashi Pal and others vs. State of H.P. See: 1993(1) SLJ 405, titled State of H.P. vs. Sudarshan Singh. Also see SLJ 1996(2) 890 Apex Court titled Mulak Raj vs. State of Haryana. It was held in case reported in Latest HLJ 2004 HP 642 (DB) titled State of H.P. vs. Hanchoo alias Stewart that if in NDPS case independent witness did not support prosecution then benefit of doubt should be given to accused. 11. In view of the fact that learned Special Judge-II Kullu has acquitted the accused person on the concept of two views theory and in view of the fact that two independent witnesses of seizure memo PW5 Anup Sharma driver and PW6 Ashok Kumar conductor of bus did not support the prosecution and did not incriminate the accused person and in view of the fact that learned Special Judge has relied upon rulings reported in Karan Singh and another vs. State of H.P. Latest HLJ 2007 (HP) 547, Ritesh Chakarvati vs. State of Madhya Pradesh 2006(4) Recent Criminal Reports (Criminal) 480 and Deepak Kumar vs. State of H.P. 2015(1) Him.L.R.(DB) 381 and in view of the fact that there are material improvements and contradictions in testimonies of official witness we are of the opinion that it is not expedient in the ends of justice to grant leave to appeal against judgment of acquittal passed by learned Special Judge-II Kullu. Point No.1 is answered in negative. Point No.2 (Final Order) 12. In view of our findings on point No.1 petition filed under Section 378 (3) of Code of Criminal Procedure 1973 against the judgment of acquittal is dismissed and it is held that there are no sufficient grounds for grant of leave to appeal against judgment of acquittal. Point No.1 is answered in negative. Point No.2 (Final Order) 12. In view of our findings on point No.1 petition filed under Section 378 (3) of Code of Criminal Procedure 1973 against the judgment of acquittal is dismissed and it is held that there are no sufficient grounds for grant of leave to appeal against judgment of acquittal. Cr.MP(M) No. 1229 of 2015 is disposed of.