Punjab-Haryana High Court
State Of Haryana vs Jagdish on 12 July, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
214 CRM-A-160-2021 (O&M)
Decided on : 12.07.2022
State of Haryana
... Applicant
Versus
Jagdish
... Respondent
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MR.JUSTICE VIKAS SURI
Present: Mr. Rajesh Gaur, Addl. AG, Haryana.
G.S. Sandhawalia, J. (Oral)
CRM-28834-2021
Application for condonation of delay of 45 days in filing the
application for grant of leave to appeal, is allowed, in view of the averments
made in the application, duly supported by affidavit of Deputy
Superintendent of Police, Hansi. Delay of 45 days in filing the application
for grant of leave to appeal is condoned.
CRM stands disposed of.
CRM-A-160-2021
Challenge by the State in the present application filed under
Section 378 (3) Cr.P.C. is for grant of leave against the judgment of
acquittal dated 16.11.2019 passed by the Additional Sessions Judge, Hisar.
Vide the impugned judgment the trial Court acquitted the
respondent-accused of the charge, which had been framed against him under
Section of 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(for short 'NDPS Act') in FIR No.315 dated 02.10.2017 registered at Police
Station Sadar Hansi, District Hisar. The allegation as such against the
respondent was that 1.5 Kgs Ganja had been recovered from the polythene
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bag, which he was carrying when caught by the police party on
02.10.2017.
After taking into consideration the evidence of the
prosecution which was in the form of 11 witnesses, acquittal was
recorded on the ground that there was no independent witness and neither
the Investigating Officer had noted down any names of persons, who had
refused to take part in the proceedings. Thus, the sanctity of the search as
such was doubted and also the fact that provisions of Section 50 had not
been complied with and that the Investigating Officer in the complaint
was the same person, as partly investigation was conducted by ASI
Mohan Lal. Apart from that there was a delay of 10 days in sending the
samples for examination to FSL and resultantly the delay on that account
also led to the reason for acquittal.
Counsel for the State has vehemently submitted that an effort
had been made to inform the accused of his right of search before the
Gazetted Officer or Magistrate, but he reposed confidence in the police
and, therefore, sufficient compliance of Section 50 of the NDPS Act had
been made. It is submitted that no prejudice had been caused to the
accused on account of delay in sending the samples and general public
never wants to join the police investigation and, therefore, reliance upon
the statement of police witnesses should have been accepted by the Court.
After having gone through the judgment in question, we are
of the considered opinion that the trial Court has not acted in any illegal
or irregular manner while recording the acquittal. It has taken a probable
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view and, therefore, the presumption of innocence has got reinforced in
favour of the respondent. The said principle has been laid down by the
Apex Court in the case of Sanjeev & another Vs. State of Himachal
Pradesh, 2022 (2) RCR (Criminal) 341, wherein the Apex Court had set
aside the judgment of the High Court of Himachal Pradesh, which had
upset the acquittal in the case of recovery of Charas of 1.5 Kgs. Reliance
can also be placed upon the judgment C. Antony Vs. K.G. Raghavan
Nair, 2002 (4) RCR (Criminal) 750, Gamini Bala Koteswara Rao &
others vs State of Andhra Pradesh, AIR 2010 SC 589 and Anil Kumar
Gupta Vs. State of U.P., 2011 (2) RCR (Criminal) 292, wherein it has
been laid down in principle that in the absence of any perversity the
appellate Court would not normally interfere in the order of acquittal of
the trial Court.
The Apex Court in the case of Sanjeev & another (supra)
while relying upon its Constitutional Bench judgment passed in State of
Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and Vijaysinh
Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609, while
upsetting the conviction and the order which had been upheld in appeal
came to the conclusion that the appellant who was alleged to be in
possession of Charas of 2.5 Kgs had never been produced before any
Magistrate or Gazetted Officer. It was, accordingly, held that once the
recovery was not made in the presence of any Magistrate or Gazetted
Officer, the conviction could not be justified, in view of the fact that
mandate under Section 50 of the NDPS Act had not been complied with.
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The trial Court has relied upon the judgment passed in Arif
Khan @ Agha Khan Vs. State of Uttarakhand, (2018) 18 SCC 380.
Reliance can also be placed upon the judgment passed in Union of India
Vs. Shah Alam and another, 2009 (3) RCR (Criminal) 158, wherein
the accused were carrying the Heroin in the shoulder bags carried by
them and the benefit of acquittal had been granted by the Allahabad High
Court. The argument raised that the recovery was made from the bag and,
therefore, Section 50 of the NDPS Act would not be applicable was
rejected while upholding the view of the High Court.
In the present case as noticed above, the respondent was
carrying a polythene bag from which the contraband was recovered and,
therefore, the provisions of Section 50 of the NDPS Act had not been
complied with. The trial Court also noticed that the recovery was from
near a reputed school on the Hansi-Data Road, which is a public road
and, therefore, in the absence of any independent witness or any material
to show that some had been sought to be joined by the Investigating
Officer, the search could not be sanctified and the benefit of doubt was
rightly granted to the accused.
It is not disputed that the sample was only sent on
13.10.2017, which is after 10 days from the date it was recovered and,
therefore, reliance by the trial Court on the judgment of this Court in
Fateh Singh vs. State of Haryana, 2006 (2) RCR (Criminal) 762 was
rightly relied upon.
Keeping in view the above we are of the considered opinion
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that the view which has been taken is a probable view and in the absence
of any perversity since all evidence has necessarily been scanned and
discussed, no case is made out for interference in the well reasoned order
passed by the trial Court. Accordingly, the application for grant of leave
to appeal is dismissed.
(G.S. SANDHAWALIA)
JUDGE
(VIKAS SURI)
July 12, 2022 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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