State Of Punjab vs Dilbagh Singh And Another
2022 Latest Caselaw 14574 P&H

CRM-A-353-2021                          1

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                                        CRM-A-353-2021 (O&M)
                                                     Date of Decision : 17.11.2022

State of Punjab                                          ...... Applicant

                                                         Versus

Dilbagh Singh and another                                 ...... Respondents



CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
        HON'BLE MR. JUSTICE VIKRAM AGGARWAL


                                               ***

Present : Mr. J.S.Mehandiratta, Addl. Advocate General, Punjab for the applicant.

*** VIKRAM AGGARWAL, J

CRM-31274-2021

Through this application, prayer has been made for condonation

of delay of 85 days in filing the appeal.

Heard. For the reasons mentioned in the application, which is

duly supported by an affidavit of Manjit Singh, PPS, Deputy Superintendent

of Police, Sub Division Fatehgarh Sahib, District Fatehgarh Sahib, the same

is allowed. Delay of 85 days in filing the appeal is condoned.

CRM-A-353-2021

The applicant-State of Punjab has preferred the instant

application for grant of leave to file an appeal against the judgment dated

09.10.2019, passed by the learned Judge, Special Court, Fatehgarh Sahib

vide which the respondents-accused have been acquitted.

The facts, as emanating from the record, are that on 28.06.2018,

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a police party which was engaged in search operation and patrolling,

apprehended the respondents-accused. Both were found to be carrying

black coloured carry bags. Since their act and conduct was suspicious, one

Dr. Ravjot Grewal, IPS, Assistant Superintendent of Police, was requested

to come at the spot. The offer, as envisaged under Section 50 of the Act,

was given to the respondents-accused and the carry bags were searched.

Both carry bags were found to be containing 14 injections each of Avil and

Buprenorphine. FIR registered. Investigation commenced. After

completion of formalities and completion of investigation, final report was

submitted against the respondents-accused. Trial commenced. After its

conclusion, the trial Court acquitted the accused finding that the prosecution

had not been able to prove its case beyond reasonable doubt.

Aggrieved by the said decision, the State of Punjab has

preferred the present application for seeking leave to file an appeal.

We have heard Sh. J.S.Mehandiratta, learned Addl. Advocate

General, Punjab and have perused the record.

Sh. Mehandiratta has streneously urged that the trial Court has

not appreciated the controversy from the correct perspective and has given

undue weightage to minor contradictions in the statements of witnesses and

the evidence produced by the prosecution. It has been argued that the

prosecution had led cogent evidence to prove its case against the accused

and, therefore, the trial Court erred in acquitting the accused. Learned

counsel for the applicant-State has also contended that the menace of drugs

is increasing in the State of Punjab day by day and such cases need to be

dealt with firmly. It has been urged that the judgment of the trial Court is

not sustainable. Sh. Mehandiratta has prayed that the judgment be set aside

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and the respondents-accused be convicted for the offences committed by

them.

Before referring to the merits of the case, it would be

appropriate to discuss the legal position in so far appeals against judgments

of acquittal are concerned.

It is now well settled that Courts have to be extremely careful

while hearing appeals against acquittal and the judgments of acquittal

should not be interfered with lightly. In the case of Sadhu Saran Singh Vs.

State of U.P. and others, 2016 (2) RCR (Criminal) 319, the Hon'ble Apex

Court reiterated that generally an appeal against acquittal has always been

altogether on a different pedestal from that of an appeal against the

conviction. It was held that in an appeal against acquittal, where the

presumption of innocence in favour of the accused is re-enforced, the

Appellate Court would interfere with the order of acquittal only when there

was perversity of fact and law. A word of "caution" was also added by the

Hon'ble Apex Court that the paramount consideration of the Court was to do

substantial justice and avoid miscarriage of justice, which could arise by

acquitting the accused, who is guilty of an offence. Though, in this case the

Hon'ble Apex Court reversed a judgment of acquittal but the principles

carved out would definitely be binding and would be applicable as per the

facts of each case. As stated above, in the present case, there is no

perversity on facts or law. Still further, in the case of State of

Maharashtra Vs. Fazal Rehman Abdul, 2014(7) SCC (Criminal) 01, the

Hon'ble Apex Court laid few parameters to be kept in mind while

entertaining appeals against judgments of acquittal. It was held that the

Appellate Court should not ordinarily set aside a judgment of acquittal in a

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case where two views are possible, though the view of the Appellate Court

may be the more probable one. It was held that while dealing with a

judgment of acquittal, the Appellate Court has to consider the entire

evidence on record so as to arrive at a finding as to whether the view of the

trial Court was perverse or otherwise unsustainable. It was also held that

the Appellate Court should bear in mind the presumption of innocence of

the accused and further that the trial Court's acquittal bolsters presumption

of his innocence. The part of the Judgment dealing with this issue is

reproduced here-in-below:-

"9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality."

This view was also taken by the Hon'ble Apex Court in

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a case State of Rajasthan Vs. Madan alias Madaniya, 2019 Crl.L.R.

(S.C.) 09. It was held by the Hon'ble Apex Court that in an appeal against

acquittal, the Appellate Court would only interfere where there exists

perversity of facts and law. While arriving at these conclusions, the Hon'ble

Apex Court relied upon the Judgment in the case of Rabindra Kumar Pal

alias Dara Singh Vs. Republic of India, 2011(2) SCC 490.

Coming to the merits of the present case, having heard learned

counsel for the applicant-State at length and having perused the judgment as

also the other relevant record, we are of the considered opinion that the

prosecution was unable to prove its case against the accused beyond

reasonable doubt. No doubt, the menace of drugs is increasing at a very fast

pace. However, this alone would not be sufficient to fasten criminal

liability on the accused and the prosecution would have to prove its case by

leading cogent evidence. It has to be borne in mind that the Act provides

for very stringent punishment in case the accused is found to have

committed an offence under the same and, therefore, it is all the more

important and imperative for the prosecution to prove its case beyond

reasonable doubt. It is for this reason that several safeguards have been

provided under the Act and it is obligatory upon the investigating agency

and then the prosecution to comply with these provisions. The trial Court

has passed a very well reasoned judgment discussing about each aspect and

we find no reason to differ with the same. The star witness of the

prosecution was PW2 Dr. Ravjot Grewal, IPS who had been called to the

spot when the respondents-accused were suspected to be carrying some

narcotics. However, this witness completely faultered in the cross-

examination and despite being a senior officer of the State, went on to state

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that she did not remember whether the investigating officer had asked

anyone to join as independent witnesses. She could not tell whether any

guard or official worker was present at the Aam Khas Bagh or not. She

could not tell whether the Investigating Officer had gone to Aam Khas Bagh

for calling any person for joining him as an independent witness or not. She

said that she did not know whether CCTV cameras were installed outside

Aam Khas Bag or not. She did not remember whether any document was

prepared during that period or not. She could not tell whether the police

information or whether the person who had taken the police information

(ruqa) had returned to the place of recovery in her presence. She could not

tell as to whether the Investigating Officer had recorded statement of any

witness in her presence. She could not tell whether the site plan Ex.P6 had

been prepared in her presence or not. She did not remember as to from

where the name of house of Surjit Singh was collected and was mentioned

in the site plan Ex.P6. The learned trial Court, therefore, rightly came to the

conclusion that the presence of the officer at the spot was itself in doubt.

The trial Court also discussed the major discrepancies in the statements of

witnesses. Infact, the witnesses were not even able to tell where the printer

had been installed for taking print out of the documents which had been

prepared, as per the Investigating Agency, at the spot. While PW2 Dr.

Ravjot Grewal stated that laptop and the printer were operated from the

battery of the vehicle, PW4 SI Rupinder Singh, who was the Investigating

Officer of the case, stated that the printer and laptop were operated from the

electricity socket installed on the outer wall of the house of one Captain

Sukhjit Singh. The investigation conducted by the Investigating Officer

was also very shoddy. He did not verify from the manufacturing company

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regarding the genuineness of the batch of the alleged contraband nor did he

verify from the manufacturing company about the wholeseller or retailer

who had purchased the contraband. It was also not verified as to from

where the respondents-accused had purchased the contraband. Head

Constable Daljit Singh, who appeared as PW1, went to the extent of stating

that no Form No.29 was prepared at the spot and no sample seal slip chits

were prepared at the spot. Infact, form No.29 was not found mentioned in

the FSL report also. The trial Court, therefore, came to the conclusion that

Form No.29 had never been sent with the sample parcels and seemed to

have been prepared only to complete the formaities and to plug the lacunas.

The trial Court also noticed many other inconsistencies in the case of

prosecution. It, therefore, rightly came to the conclusion that the

prosecution had not been able to prove its case against the accused. In our

opinion, the defence remained successful in causing a dent in the case of the

prosecution and, therefore, the trial Court rightly acquitted the accused.

In view of the settled position of law and the facts and

circumstances of the case, as noticed above, we do not find any merit in the

present application and the same is hereby dismissed.

 (AUGUSTINE GEORGE MASIH)                         (VIKRAM AGGARWAL)
          JUDGE                                         JUDGE

17.11.2022
mamta


          Whether speaking/reasoned                   Yes/No
          Whether Reportable                          Yes/No




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