Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 510 (MP)

State of M. P. v. Sunil

2015-04-28

C.V.SIRPURKAR

body2015
JUDGMENT : C.V. Sirpurkar, J. 1. This Miscellaneous Criminal Case has been instituted on an application for grant of leave to appeal under section 378(3) of the Code of Criminal Procedure against the judgment of acquittal passed by the Special Judge, (NDPS Act), Harda. 2. It is matter of record that respondent Sunil faced trial upon charge under section 8 read with section20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. After trial, he was acquitted of the charge by judgment dated 22.7.2006 passed in Special Case No. 1/2005 (NDPS Act). Aggrieved by the aforesaid judgment of acquittal, this application for leave to appeal has been preferred by the State. 3. The facts of the case in brief, are as hereunder: On the information received from an informer, police party of P.S. Harda along with panch witnesses recovered 1.4 kilograms of Ganja kept in a blue bag from the possession of respondent Sunil in the presence of panch witnesses. The accused was arrested and all formalities as required under various provisions of NDPS Act, were observed. Learned Public Prosecutor for the applicant/State has invited attention of the Court to the statements of constable Sobran Singh (PW-2), ASI Randhir Singh (PW-3) and SHO Upendra Dixit (PW-4) and contended that the learned Special Judge failed to properly appreciate their testimony and acquitted the accused respondent of the charge. It has further been submitted that the statements of aforesaid witnesses cannot be disbelieved simply on the ground that they were police witnesses. It has also been submitted that though panch witnesses Jakir (PW-5) and Banti (PW-6) were declared hostile; yet, they have admitted their signatures on various memos prepared at the time of seizure. In aforesaid circumstances, the statements of Sobran Singh (PW-2), Randhir Singh (PW-3) and Upendra Dixit (PW-4) should not have been disbelieved simply because the panch witnesses had turned hostile. 4. From study of recent judgments of Supreme Court on the question of scope of powers of the Court in an appeal against acquittal in the cases of Chandrappa Vs State of Karnataka, (2007) 4 SCC 415 , Murugesan v. State through Inspector of Police, AIR 2013 SUPREME COURT 274, Mookkiah v. State, Rep. 4. From study of recent judgments of Supreme Court on the question of scope of powers of the Court in an appeal against acquittal in the cases of Chandrappa Vs State of Karnataka, (2007) 4 SCC 415 , Murugesan v. State through Inspector of Police, AIR 2013 SUPREME COURT 274, Mookkiah v. State, Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SUPREME COURT 321, Habib v. State of Uttar Pradesh, AIR 2013 SUPREME COURT 1764, State of Madhya Pradesh v. Dal Singh, AIR 2013 SUPREME COURT 2059 and State of U.P. v. Gobardhan, AIR 2013 SUPREME COURT 3033, following broad principles may be culled out. (1) The appellate Court has full power to review, re-appreciate and reconsider the evidence etc. (2) The code of Criminal Procedure 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on the questions of fact or of law. (3) The reversal of the acquittal can be made only if the conclusions recorded by the learned trial Court do not reflect a possible view. "Possible view" denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher Court. (4) The court should interfere only where it finds an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view. (5) In exceptional circumstances and for compelling reasons the appellate Court should not hesitate to reverse a judgment of acquittal passed by the lower Court, if the findings so recorded by lower Court are found to be perverse, i.e. if the conclusions arrived at by the Court are contrary to the evidence on record, or if the Courts entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. (6) Subject to aforesaid, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. (7) The appellate Court must bear in mind that the presumption of innocence in favour of the accused has been bolstered by an acquittal by the lower Court. 5. In the backdrop of aforesaid legal position an examination of facts situation in the instant case reveals that a party led by DSP AJK Harda, S.K. Thakur and comprising TI Upendra Dixit, ASI Randhir Singh, SI Morya SI Pavitra Sharma, Head Constable Pramod Gautam and constable Sobran Singh had raided the respondent at bus stand Harda. They were accompanied by panch witnesses Jakir (PW-5) and Banti (PW-6). Another person Rajjak (PW-1) was called on the spot and his balance was used to weigh the contraband alleged to have been recovered from the possession of the respondent. Out of the aforesaid persons involved in the operation, S.K. Thakur, the DSP, who led the police party, has not been examined by the prosecution and independent witnesses Rajjak (PW-1), Jakir (PW-5) and Banti (PW-6) have turned hostile. 6. It is true that the Supreme Court in the cases of Nathu Singh Vs. State of Madhya Pradesh, AIR 1973 SC 2783 , Karamjit Singh vs. State (Delhi Administration), 2003(5) SCC 291 , State of NCT Delhi vs. Sunil, 2001 Cr.L.J. 504 and other cases has held that the testimony of police personnel should be treated in the same manner as any other witnesses and there is no principle of law that without corroboration by independent witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of the police personnel as any other persons and it is not proper judicial approach to disbelieve and suspect them without good grounds. It all depends upon the facts and circumstances of each case and no rule of general application, can be laid down. Thus, it is clear that a witness should not be disbelieved simply because he is a police personnel; however, the statements of police witnesses have to be examined with reference to the facts and circumstances of each case. 7. It all depends upon the facts and circumstances of each case and no rule of general application, can be laid down. Thus, it is clear that a witness should not be disbelieved simply because he is a police personnel; however, the statements of police witnesses have to be examined with reference to the facts and circumstances of each case. 7. In the instant case, the respondent was facing trial under section 8/20 of the NDPS Act. Under various provisions of the NDPS Act, numerous formalities have to be observed. Some of them are mandatory in nature. The prosecution has relied upon the police witnesses, who had accompanied the raid party but the leader of the raid party, Deputy Superintendent of Police S.K. Thakur, who is said to have completed all necessary formalities, including the mandatory ones, has not been examined. None of the documents proved by the prosecution namely the memo of verification of balance (Ex.P/1), the memo of weighing of contraband (Ex.P/2), the memo of receipt of intimation from the informer (Ex.P/3), the memo of informing the accused of the information received from the informer (Ex.P/4), the memo of consent of accused to search (Ex.P/5), the memo of search given by the accused by the raid party (Ex.P/6), the memo of search of the accused (Ex.P/7), the memo of identification of the accused (Ex.P/8), the seizure memo (Ex.P/9) and memo of concealing the contraband (Ex.P/10), bears signature of any of the three police witnesses, namely Sobran Singh, Randhir Singh or Upendra Dixit. As such, even their presence on the spot is suspect. 8. Panch witnesses namely Jakir (PW-5) and Banti (PW-6) have categorically stated that no contraband was recovered from the possession of the respondent from the spot. Jakir (PW-5) states that he had alighted from the bus at Harda bus stand and signed a document at the behest of police personnel. Banti (PW-6) states that he was called to police station by a constable and had signed some documents on being asked by the police personnel. Rajjak (PW-1) whose balance is said to have been used for purpose of weighing contraband, states that police personnel had not used his balance for the purpose of weighing any contraband seized from the possession of the respondent. Rajjak (PW-1) whose balance is said to have been used for purpose of weighing contraband, states that police personnel had not used his balance for the purpose of weighing any contraband seized from the possession of the respondent. Thus, it is not a case where only independent witnesses have turned hostile but also a case where the investigating officer, around whom the entire operation revolved, has not been examined. 9. In aforesaid circumstances, in the opinion of this Court, learned trial Court has committed no mistake in disbelieving the testimony of police personnel Sobran Singh, Randhir Singh and Upendra Dixit after considering the facts and circumstances of the case brought on record, in their entirety. Thus, in the opinion of this Court evidence has been properly appreciated and after assigning cogent reasons acquittal of the accused is recorded. As such, there is no ground even to take a different view of the evidence on record. 10. Accordingly, this application for leave to appeal against acquittal deserves to be and is accordingly dismissed.