Single judge bench reviewed an appeal against acquittal under Section 22 of the NDPS Act. The High Court affirmed the acquittal, finding the prosecution failed to prove its case due to procedural lapses and suggestive documentary evidence.
Leave to Appeal is declined; application dismissed; acquittal affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM-A No. 2253-MA of 2016 Date of Decision: 05.04.2019
Kewal Krishan
.......... Appellant
Versus
State of Punjab and another
.......... Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present: Mr. Sant Pal Singh Sidhu, Advocate for the applicant/appellant.
JASWANT SINGH, J.
police party, that man got perplexed and started moving on the Kacha path . Dinesh Kumar 2019.05.14 10:49 I attest to the accuracy and integrity of this document On suspicion, that man was apprehended. Meanwhile, Babar Ali, a public Chandigarh
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person, arrived at the spot, who was joined in the police party. The identity of the apprehended person was verified and that person disclosed his name as Sarf Raj @ Jagga son of Babu . A.S.I Kewal Krishan gave his introduction to the accused and told him that it was suspected that he was carrying some contraband in the bag and its search was to be conducted. He apprised the accused of his legal right to be searched in the presence of Gazetted Officer or Magistrate, but the accused reposed confidence upon him. The consent statement of the accused was reduced into writing. The search of the bag was being carried by the accused led to the recovery of 100 vials of Rexcof each containing 100 mls syrup. Two samples were separated and the remaining contraband of 98 vials containing 9800 mls of Rexcof syrup were sealed with the seal bearing impression 'KK '. The sample seal was also prepared and the seal after use was handed over to A.S.I. Avtar Singh. The incriminating articles were taken into possession vide separate recovery memo.
To strengthen its case against the respondent/accused, the prosecution has examined as many as six (06) witnesses besides producing documentary evidence, which are as under:-
Dinesh Kumar 2019.05.14 10:49 I attest to the accuracy and integrity of this document Chandigarh
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CRM-A No. 2253-MA of 2016
“ ASI Kewal Krishan as PW-1, ASI Avtar Singh as PW-2, C Darshan Singh as PW-3, HC Inderjit Singh as PW-4, Inspector Davinder Singh as PW-5 and HC Amar Singh as PW-6.
At the time of recovery, one Babar Ali , an independent witness was joined but during the course of trial, he was not examined by the Dinesh Kumar2019.05.14 10:49 prosecution, as such, the case of the prosecution hinges upon the deposition I attest to the accuracy and integrity of this document Chandigarh
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of the official witnesses only, but the deposition of official witnesses cannot be viewed with distrust or suspicion merely because of their official status until or unless there are cogent ground therefor. There is no provision of law, which requires the presence of independent witnesses at the time of search of a suspect and the recovery proceedings cannot be termed to be unreliable on the score that no independent witness was joined at the time of recovery or, if joined, has not been examined during the course of trial. At best, it will be a circumstance, which will cast a stringent duty upon the court to scrutinize the evidence with more care and caution. As such, in the instant case, the non-examination of independent witness namely Babar Ali, who was initially associated in the raiding party, without assigning any proper and plausible reasoning by the prosecution creates a doubt in the authenticity of the case of prosecution. The case of the prosecution has been totally brushed aside by the defence by examining its defence witnesses, those who in an assertive manner have testified that Investigating Officer of the case did not do his duty honestly, for which two years of service of Investigating Officer, A.S.I Kewal Krishan and also of recovery witness, Head Constable Harjinder Singh has been fortified and in the appeal the Inspector General of Police has reduced it to one year on temporary basis. Further, we have also noticed that trial Court is right in observing that strict compliance of Section 50 of the Act, has not been done by the prosecution, besides there is non-compliance of section 57 of the Act. On the basis of the evidence available on the record, it can be said that the false case has been planted by the Investigating Officer on the accused and apparently the defence has proved this factum by producing CCTV footage before the trial Dinesh Kumar 2019.05.14 10:49I attest to the accuracy and Court. There is also lack of sufficient evidence to indicate that case property integrity of this document Chandigarh
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was not tampered within the Malkhana and consequently, it cannot be safely concluded that contents of the parcel was of illicit drug. All the documents appears to have been prepared, as observed by the trial Court, in same and similar ink of pen goes to show that documents were not prepared on the alleged spot rather the same were prepared in same span of time by sitting in the police station to manufacture a false story. As such, the flaws and lacunas in the case of prosecution has rendered the case of prosecution doubtful.
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entire approach is patently illegal or it is based on erroneous understanding. If the order of acquittal is to be reversed, the Appellate Court must examine and discuss the grounds given by the trial Court to acquit the accused and must give cogent reasons to overturn the findings. Thus, while considering the order against acquittal, generally the Appellate Court should not interfere where view taken by the trial Court is not unreasonable or perverse. With this legal position in mind, we have considered the view taken by the trial Court is a possible view and it does not require any interference by this Court.
The application is without any merit and, therefore, dismissed . Leave to Appeal is declined.
( JASWANT SINGH ) JUDGE
April 05, 2019 ( ARUN KUMAR TYAGI ) 'dk kamra' JUDGE
| Whether Speaking/reasoned | Yes/No |
|---|---|
| Whether Reportable | Yes/No |
Dinesh Kumar 2019.05.14 10:49 I attest to the accuracy and integrity of this document Chandigarh
3 issues framed by the court
Whether leave to appeal against acquittal should be granted where prosecution failed to prove case beyond reasonable doubt.
Whether non-examination of an independent witness at the time of recovery invalidates the prosecution case under the NDPS Act.
Whether the High Court should interfere with the trial Court's acquittal absent palpable error or perversity.
4 provisions across 2 enactments
Kewal Krishan
State of Punjab
Sarf Raj @ Jagga
Jaswant Singh
Arun Kumar Tyagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
