Dismissed

State of Haryana v. Jitender etc.

Punjab & Haryana HC2 Jul 2013CRM-A/260/2013

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against the trial court's acquittal of respondents charged with narcotics offences. Upholding the trial judge's finding that the prosecution case was doubtful, the Court held the acquittal was justified and no compelling reasons existed to interfere.

What did the court decide?

Both applications filed by the State are dismissed; acquittal of respondents is upheld.

State of Haryana Vs Jitender etc. — Narcotics (NDPS) | Punjab & Haryana HC (2013)

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013 Date of decision : 2.7.2013

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State of Haryana

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........Applicant-appellant

Vs.

Jitender and another

.......Respondents

CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice G.S. Sandhawalia

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Present:Mr. Baldev Singh, Addl. AG, Haryana for the applicant/appellant

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Jasbir Singh, J.

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The State of Haryana has filed this application under Section 378(3) Cr.P.C. seeking leave to file an appeal against judgment dated 27.10.2012, ordering acquittal of the respondents from the charges framed against them.

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The above respondents along with Amit and Ravinder Singh were made to face trial in FIR No. 109 dated 27.2.2010, Police Station Ambala Cantt, for commission of offences punishable under Sections 323, 353, 324, 186 and 307/34 IPC and 21 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985.

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It was an allegation against them that they were in possession of cocaine. When police party made an attempt to apprehend them, one of

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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them caused injuries with a knife to a police official.

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The trial Judge has noted the following facts regarding case of the prosecution :-

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“On 27.2.2010 police party led by Inspector Jagdish was on patrolling duty near Bus Stand, Ambala Cantt., where a secret information was received that Pankaj, Jatinder and Amit son of Gurcharan Singh, were engaged in the smuggling of narcotics and could be caught red-handed with drugs. On this information, a raiding party was formed. Three boys were seen standing on the motor cycle, who on seeing the police party, tried to flee away. They were signalled to stop. One of them, who was later identified as Amit, was armed with knife, while other two boys namely Pankaj and Jatinder caught hold of the police official. Constable Praveen suffered injuries on his neck. ASI Balwant Singh was also attacked when he tried to save his colleague. The accused were found to be carrying 675 grams of cocaine, out of which two samples of 5 grams each were separated. Investigation was carried out. On the basis of disclosure statement of Pankaj, Ravinder Singh was arrested, who had supplied the recovered contraband to him.”

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After recording statements of the witnesses and completing other formalities, final report was submitted in the Court. Copies of the documents were supplied to the respondents-accused as per norms. Case was committed to the competent Court for trial. In the meantime, Chemical Examiner's Report, regarding samples taken from the alleged contraband, was received and result was in the negative. Taking note of the above report, all the accused were discharged so far as offence punishable under Section 21 of the NDPS Act, 1985 is concerned. Vide

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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order dated 12.12.2011. Trial against accused Jatinder and Pankaj-the respondents, continued for commission of offences punishable under Sections 323, 324, 332, 353 and 307/34 IPC. The respondents were charge sheeted on 21.1.2012 to which they pleaded not guilty and claimed trial. The prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case.

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On conclusion of prosecution's evidence, separate statements of the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating material on record was put to them, which they denied, claimed innocence and false implication.

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The trial Judge on appraisal of evidence, found case of the prosecution doubtful, benefit of which was given to the respondents by ordering their acquittal. Hence, this application.

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Counsel for the applicant has vehemently contended that the trial Judge has failed to appreciate the evidence in its true perspective. The facts projected by material/eye witnesses have wrongly been ignored. Heard.

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It was case of the prosecution that a knife was recovered from one of the respondents on 27.2.2010. For analysis it was deposited with Forensic Science Laboratory, Madhuban on 8.4.2010. There is nothing on record as to in whose possession the weapon of offence remained from 27.2.2010 upto 8.4.2010.

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It has also come on record that on 27.2.2010, at the time of medical examination of the injured, knife recovered at the spot was not

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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shown to the doctor. For his opinion, weapon of offence was produced before the doctor only on 1.4.2010. At the time of medical examination, no blood stain's were spotted on the uniform of Praveen and Balwant prosecution witnesses. Both the injured were referred to X-ray opinion, however, X-ray was not conducted. Despite receipt of secret information, no independent witness was joined when police party went to apprehend the accused.

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The trial Court has analysed the entire evidence in a proper manner. Each and every witness has been discussed and their deposition has been discarded by giving valid reasons. The very fact that all the accused were discharged so far as commission of offence to violate the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 is concerned, cast doubt on the story of the presentation. The judgment is as per evidence on record. The view taken by the trial Court is perfectly justified.

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Their Lordships of the Supreme Court in ' Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748' , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.

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A Division Bench of this Court in ' State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775' , while dealing with an appeal against acquittal, has opined as under:-

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“We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.”

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Similarly, in State of ' Goa v. Sanjay Thakran, (2007) 3 SCC 755', and in ' Chandrappa v. State of Karnataka, (2007) 4 SCC 415' , it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.

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In ' Mrinal Das & others v. The State of Tripura, 2011(9)

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SCC 479', decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

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“An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.”

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Similarly, in the case of ' State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon’ble Supreme Court has observed as under:-

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“7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

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The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.”

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Thereafter, in the above case a large number of judgments

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were discussed and then it was opined as under:-

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“10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the

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CRM No. 25503 of 2013 in/and CRM-A No. 260-MA of 2013

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Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.”

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Counsel for the applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.

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Otherwise also, no plausible explanation has been furnished for causing delay of 72 days in filing the appeal.

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Accordingly, both the applications are dismissed.

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(Jasbir Singh) Judge

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(G.S. Sandhawalia) Judge 2.7.2013 Ashwani

State of Haryana v. Jitender etc.

Case brief

What is this about?

What did the court decide?

State of Haryana v. Jitender etc.

Case brief

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