Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 703 (JK)

State of J&K v. Ved Parkash

2017-08-21

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Heard on the question of admission. 2. This Criminal Acquittal Appeal has been preferred against the judgment dated 29.06.2013 passed by the trial court, by which the respondents have been acquitted of offences under sections 8/22/23/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 3. The prosecution story in a nutshell is that on 18.06.2009 at about 10.45 AM, two accused persons, namely, Vaid Parkash and Tarsem Singh were intercepted by the Police, headed by ASI Ghulam Mohd of Police Station Khour at village Sainth while they were on Motorcycle. Simultaneously, third accused, Tarsem Lal was also intercepted by the aforesaid Police. From the search of bags being carried by them, two packets of heroine weighing 1 kg. each was recovered from each of the aforesaid accused. Thereupon, First Information Report was lodged for offences under sections 8/22/23/29. After completion of the investigation, charge sheet was presented in the Court against the respondents for the offences as aforesaid. 4. The prosecution in order to prove its case examined as many as 11 witnesses, The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 5. Learned counsel for the appellant submitted that there is compliance with provisions of section 42 (2) of the Act. It is further submitted that the trial court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment. On the other hand, learned counsel for the respondents has supported the judgment passed by the trial Court. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the perusal of the statement of PW ASI Ghulam Mohd, it is evident that he has contradicted his own version that he received information while he was on patrolling duty through some source that some persons are involved in business of intoxicated substance. In cross-examination he has deposed that Constable, Surinder Singh received the aforesaid information. PW-Surinder Singh in his cross-examinations has stated that ASI-Ghulam Mohd has got prior information that some persons are involved in the business of intoxicated substance. Though PW-Sirunder Singh admitted that he also received phone call in this regard yet he has not testified before the trial court that he shared the information with PW-Ghulam Mohd. PW-Surinder Singh in his cross-examinations has stated that ASI-Ghulam Mohd has got prior information that some persons are involved in the business of intoxicated substance. Though PW-Sirunder Singh admitted that he also received phone call in this regard yet he has not testified before the trial court that he shared the information with PW-Ghulam Mohd. It is admitted by both the aforesaid witnesses in their testimonies before the Court that the aforesaid secret information so received through source had not been reduced into writing. Therefore, admittedly and undoubtedly, there is non-compliance of the provision of section 42 (2) of the Act. 7. From the perusal of evidence of PW Satish Kumar, it is evident that he has no where stated in his testimony before the court that the dockets seeking written options were prepared on spot prior to search of the accused. From his statement, it appears to have got recorded that Dy.S.P after reaching the spot asked the accused from whom they wanted to get themselves searched. There is a serious contradiction between the statement of PW-ASI Ghulam Mohd and PW-Mohan Lal Kaith, SDPO with regard to bringing of the weighing scale and weighing of the seized narcotic and its samples with the same. PW-Ghulam Mohd has deposed that SDPO sent Surinder Singh for bringing weighing scale. On the other hand, PW-Mohan Lal Kaith testified before the Court that in his presence neither the seized material was brought nor it was weighed. The aforesaid witness has stated that two of the accused were carrying bags in their hands and third one a polythene carry pack. He has further stated that accused Tarsem Lal was having a carry pack with him. However, the version of PW-Mohan Lal Kaith is totally contrary to the reference made by almost all other prosecution witnesses that the accused were carrying black coloured bags while they were intercepted by the police party. 8. It is pertinent to mention here that the prosecution has failed to prove Superdnama EXT P1/1 before the trial court. Written options of the accused were taken prior to their search. PW Ghar Singh in his testimony remained silent with regard to the options of the accused prior to their search. 8. It is pertinent to mention here that the prosecution has failed to prove Superdnama EXT P1/1 before the trial court. Written options of the accused were taken prior to their search. PW Ghar Singh in his testimony remained silent with regard to the options of the accused prior to their search. PW-Jagdeep Singh, who was an independent witness, has been declared hostile by the prosecution, who is witness of the seized contraband and nothing incriminating from his cross-examination could be elicited against the respondents. It is also pertinent to mention here that none of the prosecution witnesses, much less, ASI Ghulam Mohd, Mohan Lal Kaith-Dy. S.P. and Rakesh Akram-Investigating Officer has stated that impression of the seal used for sealing the recovered/sealed material and its samples was taken on any separate paper. It is also pertinent to mention here that the Investigating Officer has stated that he did not prepare FSL form on spot. 9. The trial court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse (see Ram Swaroop and others vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa ( 2015 11 SCC 124 . 10. From perusal of the judgment of the trial court, we find that the findings recorded by the trial court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.