Punjab-Haryana High Court
State Of Ut Chandigarh vs Shammi on 7 November, 2023
Neutral Citation No:=2023:PHHC:143311
CRM-A No.1210 of 2023 -1- 2023:PHHC:143311
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No.37630 of 2023 in/and
CRM-A No.1210 of 2023 (O&M)
Date of Decision:07.11.2023
State of U.T., Chandigarh ... Applicant/Appellant
Versus
Shammi ... Respondent
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Yashwant Singh Rathore, Addl. P.P., U.T., Chandigarh.
for the applicant-appellant.
***
HARPREET SINGH BRAR, J. (ORAL)
1. The present application has been preferred by the applicant-U.T.,
Chandigarh under Section 378 (3) of the Criminal Procedure Code, 1973 against
the judgment dated 14.02.2022 passed by the learned Additional Sessions Judge,
Chandigarh whereby the respondent has been acquitted in case bearing FIR
No.302 dated 12.10.2018 registered under Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) at
Police Station Mauli Jagran, Chandigarh.
1.1 The instant application is also accompanied by an application seeking
condonation of delay of 378 days in filing of the application.
FACTUAL BACKGROUND
2. In brief, the version put forth by prosecution is that on 12.10.2018, ASI
Dharam Dev along with other police officials was on patrolling duty in the area
of Mauli Jagran Complex, Chandigarh and at about 2.20 PM when they reached
near sansi mohalla, a person was seen coming by the side of wall of railways
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having a bag in his right hand. On seeing the police party, he ran towards House
No.2070-2071 and on being chased, he was apprehended by HC Jarnail Singh.
On being checked his bag, ganja was recovered therefrom. On being asked, he
disclosed his name, however, failed to produce any valid permit or licence to
justify the possession of the said contraband. The contraband recovered from the
respondent-accused was weighed to be 5.4 kgs along with polythene bag.
Thereafter, the recovered contraband was converted into a parcel with seal 'SS' at
two places. Efforts were also made to join an independent witness but no one
came forward. After completing formalities, respondent-accused was arrested.
SI Sharminder Singh, second investigating officer was called at the spot and the
first investigating officer ASI Dharam Dev handed over the respondent-accused
along with parcels, sample seal and other documents. On the basis of the ruqa
sent, FIR under Section 20 of the NDPS Act was registered against the
respondent-accused.
2.1. On presentation of challan and appearance of the accused in the Court,
copies of documents relied upon by the prosecution were supplied to him, as
required under Section 207 Cr.P.C.
2.2. Finding a prima facie case, charge under Section 20 of the NDPS Act was
framed against the respondent-accused to which he pleaded not guilty and
claimed trial.
2.3. In support of its case, the prosecution examined as many as 9 witnesses and
closed its evidence.
2.4. Statement of the respondent-accused as required under Section 313 Cr.P.C.
was recorded and the incriminating evidence was put to him. The respondent-
accused denied the same and pleaded innocence but he did not lead any evidence
in his defence.
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CONTENTIONS
3. Learned counsel for the appellant argues that the learned trial Court has
gravely erred in discarding the testimonies of the official respondents in the
absence of any evidence produced in defence by the respondent-accused to
establish that they were biased in conducting the investigation and the alleged
recovery was planted upon the respondent-accused with an ulterior motive.
Moreover, the official respondents had duly corroborated the prosecution version.
Further, the learned trial Court had ignored the report of CFSL Ex.P33 and
therefore, the impugned judgment dated 14.02.2022 passed the learned trial Court
is liable to be set aside.
ANALYSIS AND OBSERVATION
4. This Court has heard learned counsel for the appellant and has gone
through the record of the case with his able assistance.
5. A perusal of the record would show that there are stark and glaring
contradictions in the statements of the official respondents, who were members of
the raiding party. PW1 HC Jarnail Singh deposed that the contraband was
weighed on electronic weighing machine, which was brought by a lady Constable
whereas PW2 Constable Parmod stated in his examination-in-chief that he was
carrying the investigating kit with him including the weighing machine.
Different versions were given by the official respondents regarding arrival of the
second investigating officer on the spot as well as the manner of apprehension of
the respondent-accused. PW1 HC Jarnail Singh had feigned ignorance regarding
arrival of the second investigating officer as whether he came in a car or on a
motor cycle; whereas PW2 Constable Parmod stated that the second investigating
officer came on his private motor cycle. PW6, SI Sharminder Singh, who was
the second investigating officer, had stated that he reached on the spot in his
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private car. Further, it was nowhere the case of the prosecution that provisions of
Section 50 of the NDPS Act were complied with but during the cross-
examination PW8 Dharam Dev stated that the respondent-accused was apprised
of his right to be searched by him or a Gazetted Officer. However, no
documentary evidence to corroborate the said fact was brought on record.
Furthermore, in respect of preparation of the documents on the spot, there are
contradictions in the versions of PW8 Dharam Dev, ASI (retd.), first investigating
officer and PW6 SI Sharminder Singh, who was the second investigating officer.
The investigation done by the investigating officers was shoddy and therefore, the
learned trial Court has rightly acquitted the respondent-accused by giving him the
benefit of doubt.
6. The power of the Appellate Court to unsettle the order of acquittal on the
basis of re-appreciation of the evidence is subject to the settled law that where
two views are possible and out of the two, one points towards the innocence of
the accused, the view which favours the accused should prevail over the other
pointing towards his guilt. Furthermore, the trial Court has the
additional advantage of closely observing the prosecution witnesses and their
demeanour, while deciding about the reliability of the version of prosecution
witnesses. The presumption of innocence further gets reinforced on the acquittal
of the accused. (See H.D. Sundara and others Vs. State of Karnataka, Criminal
Appeal No.247 of 2011 decided on 26.09.2023; Kali Ram v. State of H.P., 1973
(2) SCC 808 and Chandrappa and others v. State of Karnataka, (2007) 4 SCC
415).
7. Further, no plausible and satisfactory explanation came forth from the
counsel appearing for the appellant qua delay of 378 days in filing the present
application seeking leave to appeal.
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CONCLUSION
8. In view of the facts and circumstances of the case, this Court finds that the
defence has been successful in making serious dent in the prosecution case and
that the prosecution has miserably failed to establish its version beyond
reasonable doubt. Learned counsel for the appellant has failed to point out any
perversity or illegality in the findings recorded by the learned trial Court, which
warrants interference by this Court. As such, there is no merit in the present
application and the leave to appeal is declined on the ground of delay as well as
on merit. Resultantly, the main appeal is also dismissed.
(HARPREET SINGH BRAR)
JUDGE
November 07, 2023
Pankaj* Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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