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Himachal Pradesh High Court · body

2015 DIGILAW 1897 (HP)

State of Himachal Pradesh v. Mohammad Babu

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 for grant of leave to appeal against judgment of acquittal dated 1.4.2015 passed by learned Special Judge-III Mandi District Mandi in Sessions trial No. 272 of 2013 (ST 27 of 2010) titled State of H.P. vs. Mohammad Babu and another under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act 1985. Brief facts of the case 2. It is alleged by prosecution that on 7.1.2010 at about 11 AM the police party of P.S. Aut headed by ASI Amar Nath along with ASI Ramesh Lal, HC Hari Singh, Subhash and C. Bhavdev as per rapat No. 14(A) Ext.PW1/A went for traffic checking towards tunnel point Thalot/Jhalogi. It is alleged by prosecution that at about 12.20 PM one car blue in colour came from Kullu side towards Mandi and ASI Amar Nath gave signal to stop the car. It is alleged by prosecution that driver stopped the vehicle and shown the documents. It is alleged by prosecution that on inquiry driver disclosed his name as Mohammad Akhtar son of Shri Mohammad Suleman resident of Kila Rahamgarh Tube-Well colony Malerkotla District Sangrur (Punjab). It is alleged by prosecution that adjoining to driver seat one person was sitting having bag upon his lap and when he saw the police party he tried to conceal the bag under his seat and it is further alleged by prosecution that he was also scared. It is alleged by prosecution that on inquiry he disclosed his name as Mohammad Babu son of Shri Mohammad Sharif resident of Pyushi Muhalla Malerkotla District Sangrur (Pb.) It is alleged by prosecution that bag was picked out from seat and after checking it was found of yellow colour. It is alleged by prosecution that charas measuring 1 Kg. 500 grams was kept in bag. It is further alleged by prosecution that charas was again placed in bag and was sealed with seal impression ‘R’ at six places and it is also alleged by prosecution that specimen of seal impression obtained on piece of cloth and NCB form in triplicate was filled. It is alleged by prosecution that seal after use was handed over to witness HC Hari Singh and recovery memo Ext.PW2/B was prepared. It is alleged by prosecution that seal after use was handed over to witness HC Hari Singh and recovery memo Ext.PW2/B was prepared. It is alleged by prosecution that vehicle bearing No. MH-01-22-4798 along with key, specimen seal impression and NCB-1 form in triplicate took into possession in presence of ASI Ramesh Prashar and HC Hari Singh and thereafter ruka Ext.PW10/E was sent to police station Aut on the basis of which FIR Ext.PW7/A was registered. It is alleged by prosecution that spot map was prepared and statements of prosecution witnesses recorded as per their version. It is alleged by prosecution that case property was produced before PW7 SI Shreshtha Thakur for the purpose of resealing and case property after resealing was deposited in malkhana and thereafter case property was sent for chemical examination to FSL Junga. It is alleged by prosecution that PW10 ASI Amar Nath sent special report Ext.PW9/A to Additional S.P. Mandi. It is alleged by prosecution that as per chemical examiner opinion Ext.PA the contraband was found to be charas. After completion of investigation case file was handed over to SHO P.S. Aut and he forwarded the accused persons for trial under Sections 20 and 29 of ND&PS Act. 3. Charge was framed against accused persons under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act. Accused persons did not plead guilty and claimed trial. 4. Prosecution examined ten witnesses namely HC Hans Raj, PW2 HC Hari Singh, PW3 C. Subhash Chand, PW4 C. Narinder Kumar, PW5 C. Bhav Dev, PW6 C. Sudeep, PW7 Inspector Surestha Thakur, PW8 HC Kashmir Singh, PW9 HC Lachhman Dass and PW10 ASI Amar Nath as mentioned in list of witnesses annexed with judgment and also tendered documentary evidence as mentioned in list of exhibits annexed with judgment passed by learned Special Judge. Statements of accused persons under Section 313 Cr.P.C. recorded in which they refuted the evidence led by prosecution against them. Accused did not produce any defence evidence. 5. Learned Special Judge-III Mandi acquitted the accused persons qua offences under Sections 20 and 29 of NDPS Act 1985. 6. Feeling aggrieved against the judgment of acquittal passed by learned trial Court State of H.P. sought permission for grant of leave to appeal under Section 378 (3) of Code of Criminal Procedure against judgment of acquittal. 7. 5. Learned Special Judge-III Mandi acquitted the accused persons qua offences under Sections 20 and 29 of NDPS Act 1985. 6. Feeling aggrieved against the judgment of acquittal passed by learned trial Court State of H.P. sought permission for grant of leave to appeal under Section 378 (3) of Code of Criminal Procedure against judgment of acquittal. 7. We have heard learned Assistant Advocate General appearing on behalf of the petitioner and also perused the judgment of learned trial Court carefully. 8. Following points arise for determination in present petition:- 1. Whether petition filed under Section 378(3) of Code of Criminal Procedure 1973 against judgment of acquittal dated 1.4.2015 passed by learned Special Judge-III Mandi in Sessions trial No. 272 of 2013 (ST No. 27 of 2010) is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Final Order. Findings on Point No.1 with reasons 9. Learned Special Judge acquitted both accused as per reasons mentioned in para No. 24 of judgment and learned trial Court has also relied upon rulings reported in Nanha vs. State of H.P. Latest HLJ (HP) 1195, Duni Chand vs. State Latest HLJ 2015 HC 118, State of Rajasthan vs. Parmanand and another 2014 SAR (Criminal) 432 and Saukat Ali vs. State of Haryana 1996 Cri.LJ 3685 P&H. 10. In present case no independent witness was examined by prosecution and only official witnesses are examined. Concept falsus in uno falsus in omnibus is not applicable in criminal law. See: AIR 1980 S.C.957 Bhe Ram Vs. State of Haryana. See: AIR 1971 S.C. 2505 Rai Singh Vs. The State of Haryana In an appeal against acquittal High Court is entitled to re-appreciate the evidence if it is found that view taken by acquitting Court was not a possible view or that it has a perverse or infirm or erroneous view and where admissible evidence is ignored by learned trial Court then duty is imposed upon appellate Court to reappreciate evidence when accused has been acquitted by learned trial Court. See Hari Chand vs. State of Delhi AIR 1996 SC 1477 . See Uppari Venkataswamy vs. Public Prosecutor High Court A.P. AIR 1996 SCW 98 . See State of Punjab vs. Ajaib Singh AIR 1995 SC 975 . See Hari Ram vs. State of Rajasthan 2000 Cr.LJ 2312 (SC). See Narinder Singh vs. State of Punjab AIR 2000 SC 2212 . See Uppari Venkataswamy vs. Public Prosecutor High Court A.P. AIR 1996 SCW 98 . See State of Punjab vs. Ajaib Singh AIR 1995 SC 975 . See Hari Ram vs. State of Rajasthan 2000 Cr.LJ 2312 (SC). See Narinder Singh vs. State of Punjab AIR 2000 SC 2212 . See Anil Kumar vs. State of U.P. 2005 SCC (Cri) 178. See State of Punjab vs. Karnail Singh AIR 2003 SC 3609 . See State of U.P. vs. Babu AIR 2003 SC 3408 . See State of Madhya Pradesh vs. Bacchudas 2007 Cri.LJ 1661 (SC). 11. There is no evidence on record that police officials have hostile animus against accused at any point of time prior to the incident. It was held in case reported in AIR 1972 SC 2783 titled Nathu Singh vs. State of M.P. that mere fact that witnesses examined in support of prosecution are police officials is not enough to discard their testimonies. It was held that police officials cannot be treated as interested witnesses. It was held that testimonies of police officials can be relied if testimony of police official is trustworthy reliable and inspires confidence of Court. See AIR 1985 SC 1092 titled State of Gujarat vs. Raghunath Vamanrao Baxi. It is well settled law that offences under NDPS Act are offences against the society and it is well settled law that criminals dealing in NDPS are spoiling the career of young youths who are wealth of Nation for personal commercial benefit. It is well settled law that Court should be very conscious while dealing criminal offences relating to public at large. NDPS cases are criminal cases against society at large. In view of above stated facts it is held that meticulous examination of oral as well as documentary evidence is essential in present case in the ends of justice and for the betterment of public at large. Point No. 1 is answered accordingly in affirmative. Point No.2 (Final Order) 12. In view of my findings upon point No.1 petition filed under Section 378(3) of Code of Criminal Procedure 1973 is allowed and pre-admission notice of appeal be issued to non-petitioners returnable within four weeks. In the meanwhile original record of learned trial Court be also called for. Observations made in this order will not effect the merits of case in any manner. Be listed after four weeks. In the meanwhile original record of learned trial Court be also called for. Observations made in this order will not effect the merits of case in any manner. Be listed after four weeks. Cr.MP(M) No. 1224 of 2015 is disposed of.