Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 62 (JK)

State of J&K v. Jagbir Singh

2019-02-07

GITA MITTAL, TASHI RABSTAN

body2019
JUDGMENT : 1. By way of the present appeal, the State-appellant is seeking leave to file the Criminal Acquittal Appeal under Section 417 of the Cr.P.C, against the judgment dated 28th of November, 2015 passed by the learned 1st Additional Sessions Judge, Jammu, arising out of FIR No. 145/2011 registered at Police Station, Gangyal under Sections 8/21/22 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 whereby the learned Trial Judge acquitted the respondents from commission of the offences with which they were charged. 2. According to the prosecution, on 25th of October, 2011 a patrolling party of the police from Police Station Gangyal at 15:15 hours claimed to have intercepted a motor cycle driven by one Satvinder Singh @ Sunny-respondent No. 2 and a pillion rider Jagbir Singh @ Jagga-respondent No. 1 before us, at Peer Baba Kunjwani. Search of bag of respondent No. 2 was conducted by the police party in which it was alleged that Parvon Spas capsules and Corex syrup bottles in large quantity were recovered. A search of the bag of Jagbir Singh-respondent No. 1 also lead to the recovery of Parvon Spas capsules in a large quantity. On a report filed by the Incharge of the patrolling party, FIR No. 145/2011 was registered by the Police Station Gangyal. It is alleged that these drugs were intended for import from Punjab towards Jammu to be sold as psychotropic substances. 3. On a report filed by the Incharge Patrolling Party, a case was registered vide FIR No. 145/2011 at Police Station Gangyal, Jammu under Sections 8/21/22 NDPS Act. The recovered contraband was sent to the Forensic Science Laboratory Jammu for analysis. A report dated 24th of March, 2012 from the Laboratory reported the detection of Dicyclomine Hydrochloride, Dextropropoxyphene Hydrochloride, Paracetamol, Codeine Phosphate and Chlorpheneramine Maleate. Accordingly, a chargesheet was filed by the Police for the commission of offences under Sections 8/21/22 NDPS Act. By an order dated 17th of April, 2012, the learned Trial Judge framed charges for the commission of offences under the said statutory provisions against the respondents. 4. The respondents pleaded not guilty and claimed trial. During the trial, the prosecution examined 11 witnesses out of 13 witnesses cited to prove its case. The respondents were given an opportunity to explain the evidence which have been recorded against them under Section 342 of Cr.P.C.. No defence evidence was lead. 4. The respondents pleaded not guilty and claimed trial. During the trial, the prosecution examined 11 witnesses out of 13 witnesses cited to prove its case. The respondents were given an opportunity to explain the evidence which have been recorded against them under Section 342 of Cr.P.C.. No defence evidence was lead. After a detailed examination of the entire evidence, oral and documentary, lead by the prosecution, the learned trial Judge arrived at the conclusion that the prosecution had failed to prove the charges against the respondents. Consequently, by its judgment dated 28th of November, 2015 acquitted them of the charges which were laid against them. 5. Aggrieved by the said judgment the present appeal has been filed before us by the State challenging the acquittal of the respondents. Before examination of the case of the appellant before us it would be appropriate to set down the parameters of jurisdiction of this Court while examining an appeal against acquittal. In the pronouncement of Supreme Court in Ram Swaroop and others Vs. State of Rajasthan, (2004) 13 SCC 134 , the Supreme Court considered this issue and observed thus: “25…………………………………………………………… ………………………………………………………………… ……………………………………………It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an 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.” (Emphasis supplied) 6. The above principle was reiterated in State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180 , by the Supreme Court relying on precedents and holdings as follows: “11. The above principle was reiterated in State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180 , by the Supreme Court relying on precedents and holdings as follows: “11. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 , wherein this Court observed thus: “Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.” (Emphasis supplied) 7. Again in (2009) 12 SCC 629 , Vijay Kumar Vs. State, the Supreme Court summed up the legal position as follows: “12. The principles which have been set out in innumerable cases have been reiterated as under:- (1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (3) Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reason for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court. (5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. (6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness- box. (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.” 8. It is thus well settled 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 is 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. The present consideration has to abide with these binding principles. 9. It is also trite that serious penalty is levied for the commission of the serious offences under Sections 8/21/22 NDPS Act. The present consideration has to abide with these binding principles. 9. It is also trite that serious penalty is levied for the commission of the serious offences under Sections 8/21/22 NDPS Act. Thus a solemn burden has to be discharged by the prosecuting agency to establish the culpability and guilt of an accused charged for the commission of offences there under, beyond reasonable doubt by credible evidence and ensuring strict compliance of the statutory mandate. 10. The prosecution has also cited and examined Joginder Pal PW-8 as an independent witness to the seizure effected by the Police Officials. Joginder Pal was stated to be also witness to the memos of the alleged seizure of the contraband. Unfortunately, Joginder Pal when examined as PW-8 did not support the prosecution, at all, and completely resiled from the statement recorded during investigation. This witness who was the sole independent witness went to the extent of saying that no contraband was seized or sealed in his presence. 11. The prosecution examined PW-11 Girdhari Lal who was the Executive Magistrate is said to have resealed the sealed material. This evidence has also been found to be unreliable and contradictory. 12. Perusal of the evidence on record would show that the prosecution was even unable to establish even the fact as to the person who was driving the motor cycle at the time of seizure of the alleged contraband and who was the pillion rider. In this regard the learned trial Judge has adverted to the testimony of prosecution witnesses Harvinder Singh and Mohinder Pal who completely contradicted all the other prosecution witnesses in this regard. According to the prosecution witnesses 5 and 7, i.e., Mohinder Pal and Harvinder Singh, Jagbir Singh was driving the motor cycle, while the other witnesses alleged that the bike was being driven by Satvinder Singh. 13. The investigating officer has alleged that a personal search of the respondents was conducted. In this regard it is mandatory requirement to advert to the Section 50 of the NDPS Act, which is reproduced as under:- 50. Conditions under which search of persons shall be conducted. 13. The investigating officer has alleged that a personal search of the respondents was conducted. In this regard it is mandatory requirement to advert to the Section 50 of the NDPS Act, which is reproduced as under:- 50. Conditions under which search of persons shall be conducted. - — (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] 14. Section 50 of the NDPS Act requires that in case of personal search of an accused person, he has to be given an opportunity of being searched in presence of a Gazetted Officer or a Magistrate. Breach of this condition would be fatal to the case of the prosecution. In the present case, there is no evidence, at all, of such opportunity being afforded to the respondents. 15. Breach of this condition would be fatal to the case of the prosecution. In the present case, there is no evidence, at all, of such opportunity being afforded to the respondents. 15. Critical in the present case would be the forensic evidence in order to support that the accused persons were actually carrying drugs or psychotropic substances. The learned trial Judge has noted that the prosecution has not even cited the forensic expert as a witness to lead him as a prosecution witness. 16. In this background, there is no credible evidence with regard to the nature of the goods which were allegedly seized from the possession of the respondents. 17. On a consideration of the evidence, the trial Judge has concluded that there is no evidence in support of the charges against the respondents. Nothing is pointed out to us which would enable this Court to take a different view. 18. It is trite that in a criminal case, the burden of prosecution to establish the charges against the accused person is heavy and they are required to prove the case beyond reasonable doubt. 19. Given the nature of evidence which was lead by the prosecution, we are unable to disagree with the findings returned by the trial Judge. In our view the learned trial Judge has, therefore, rightly held that the prosecution has failed to establish the charges laid against the respondents. 20. This appeal is completely devoid of legal merit and is dismissed.