[Cites 8, Cited by 0]
Punjab-Haryana High Court
State U.T Chandigarh vs Anil Tanwar on 8 December, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-A-23-2021 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A-23-2021 (O&M)
Date of Reserved: 02.12.2025
Date of Pronouncement: 08.12.2025
State (U.T., Chandigarh) ....Applicant.
Versus
Anil Tanwar ...Respondent.
***
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
HON'BLE MRS. JUSTICE SUKHVINDER KAUR
.......
Present: Mr. Sumit Jain, Addl. P.P., U.T., Chandigarh with
Mr. Dushyant Rana, Advocate
for U.T., Chandigarh.
***
Sukhvinder Kaur, J.
1. The appellant-State has preferred the instant appeal against
judgment dated 17.01.2020, passed by learned Judge, Special Court,
Chandigarh, vide which respondent-accused Anil Tanwar has been
acquitted.
2. Present FIR was registered on the allegations that on
06.7.2018, SI Jaivir Singh along with other police officials was on
patrolling duty near Girls College, Sector 42, Chandigarh. At about 8.35
P.M., when they reached near T point near petrol pump Sector 42,
Chandigarh, they saw the accused coming from slip road, Lake Sector 42,
Chandigarh. After seeing the police party, he turned back immediately and
started walking swiftly. On suspicion, the accused was apprehended and
tried to threw one small polythene bag after taking it out from the right
pocket of his pant, but SI Jaivir Singh did not allow him to do so. He
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disclosed his name as Anil Tanwar. After checking said polythene bag 5.30
grams of heroine was recovered from the possession of the accused, without
any permit or licence. Two samples were taken out from the polythene bag
and were put in the plastic bag and was further kept in plastic container and
wrapped in white cloth, which were sealed with the seal of 'JB' at two
places. The remaining contraband/heroine was kept in the same polythene
bag and put in plastic container, which was wrapped with white cloth which
was also sealed with the seal of 'JB' at two places. Sample seal was
separately prepared. Test memo form was filled at the spot.
Heroine/contraband along with sample seal was taken into possession. Ruqa
was sent to the Police Station on the basis of which present FIR was
registered. Thereafter, SI Mehar Singh second Investigating Officer reached
at the spot and the accused alongwith the entire case property consisting of
sealed parcels were handed over to him alongwith sample seal. Accused was
arrested. Rough site plan was prepared and personal search memo was also
prepared. Thereafter, SI Mehar Singh took the other recovery witnesses as
well as accused and case property for producing before the SHO at Police
Station 36, Chandigarh. During the course of investigation, statements of
witnesses were recorded. The case property was produced before the Ilaqua
Magistrate, who after verification certified the inventory prepared. One of
the samples was sent to the office of CFSL for examination and after receipt
of CFSL report and completion of necessary formalities, challan against the
accused was presented in the Court.
3. After finding a prima facie case against the accused, he was
charge-sheeted for the offence punishable under Section 21 of NDPS Act, to
which he pleaded not guilty and claimed trial.
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4. In order to prove its case, the prosecution has examined as
many as eight witnesses. PW1-HC Yash Pal proved on record the site plan
Ex.P2 prepared by him.
PW2-HC Naresh Kumar, deposed regarding depositing of
sample in Malkhana on 07.07.2018 handed over to him by Inspector
Ranjodh. He further deposed regarding the inventory proceedings before the
learned Magistrate and also deposed that after inventory he deposited two
samples and remaining case property in the Malkhana. On 09.07.2018, he
sent samples to CFSL through C-Sumit and after depositing the same on the
same day, he handed over the receipt to him. On 27.07.2018, the result
alongwith sealed parcel was handed over to him by Constable Manoj Kumar
and he deposited the sealed parcel in the Malkhana. He proved the relevant
entry Ex.P3; copy of road certificate Ex.P4 and copy of the
acknowledgement Ex.P5.
PW3-Inspector Ranjodh Singh, deposed regarding producing of
accused Anil along with sealed parcels of the contraband before him on
06.07.2018 and regarding verifying the facts from ASI Mehar Singh and
after verifying the facts from ASI Mehar Singh, attesting the parcels. Then
he deposited the case property with MMHC JHC Naresh Kumar.
PW4-Constable Shri Kumar, proved on record the photographs
EX.PW4/1 and Ex.PW4/2 clicked by him on 07.07.2018.
PW5-SI Jaivir Singh, was the Investigating Officer of this case
and he deposed in detail regarding various investigation proceedings
conducted by him during the course of the investigation.
PW6-HC Dilawar Singh, is a witness of recovery and also
deposed regarding the recovery of 5.30 grams of heroine from possession of
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the accused on 06.07.2018 and the proceedings conducted by Investigating
Officer SI Mehar Singh.
PW7-SI Mehar Singh is the second Investigating Officer in this
case and he has also deposed about the various investigating proceedings
conducted by him in the present case.
PW8-Constable Sumit deposed regarding deposition of sealed
parcel into CFSL and thereafter, handing over of the receipt to MMHC.
Prosecution has also tendered into evidence CFSL report
Ex.P1.
5. Statement of accused under Section 313 Cr.P.C. was recorded
in which, all incriminating evidence was put to him, which he denied and
pleaded innocence. However, the accused led no evidence in his defence.
6. Learned trial Court held that prosecution had failed to prove its
case against the accused beyond the reasonable doubt and acquitted the
accused of the offences in the present case.
7. Aggrieved of the said decision, present appeal has been filed by
the appellant-State challenging acquittal of the accused Anil Tanwar.
8. Learned counsel for the appellant-State vehemently contended
that the trial Court has wrongly acquitted the accused without appreciating
the facts and circumstances of the case in a proper manner, whereas there
was cogent and convincing evidence against the accused. Learned trial
Court has failed to appreciate that the fact that it was a chance recovery
effected by the Investigating Officer and as such Section 50 of NDPS Act
was not applicable in the present case. Although provision of NDPS Act
were duly complied with by the investigating agency, but learned trial Court
has wrongly disbelieved the testimony of the official witnesses. When the
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statement of the official witnesses are natural and believable then the same
can be relied upon by the Court and it is not necessary to join the
independent witness in each and every case. All the prosecution witnesses
deposed on the similar lines and there were no chinks in the prosecution
story as put forth before the trial Court, but deposition of the prosecution
witnesses have been misread and misinterpreted by the trial Court. Learned
trial Court has also lost sight of the fact that the accused/ respondent did not
lead any evidence in his defence. He urged that even if HC Adalat Singh had
reduced the complaint Ex.PW5/3 into writing, he was performing a
ministerial act and benefit of not examining him cannot be given to the
accused by keeping in view the gravity of the offence committed by the
accused. He prayed that present appeal be allowed, impugned judgment
dated 17.01.2020 be set aside and accused be convicted for the offences as
charged with and be punished in accordance with law.
9. We have heard learned counsel for the parties and have also
perused the record.
10. After having heard learned counsel for the appellant-State and
having perused the judgment as well as the other relevant record, we are of
the considered opinion that the prosecution was indeed not able to prove its
case against the accused beyond the shadow of reasonable doubt and that
learned trial Court has correctly acquitted him of the charges framed against
him.
11. NDPS Act provides for very stringent punishment in case the
accused is found to have committed an offence under the same. In Noor
Aga v. State of Punjab, 2008(3) RCR (Crl.) 633, the Hon'ble Supreme
Court has observed in the following terms :
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"The provisions of the Act and the punishment prescribed
therein being indisputably stringent flowing from elements such
as a heightened standard for bail, absence of any provision for
remissions, specific provisions for grant of minimum sentence,
enabling provisions granting power to the Court to impose fine
of more than maximum punishment of L 2,00,000 as also the
presumption of guilt emerging from possession of Narcotic
Drugs and Psychotropic substances, the extent of burden to
prove the foundational facts on the prosecution, i.e., proof
beyond all reasonable conduct would more onerous. A
heightened scrutiny test would be necessary to be invoked. It is
so because whereas, on the one hand, the court must strive
towards giving effect to the parliamentary object and intent in
the light of the international conventions, but on the other, it is
also necessary to uphold the individual human rights and
dignity as provided for under the UN Declaration of Human
Rights but insisting upon scrupulous compliance of the
provisions of the Act for the purpose of upholding the
democratic values, it is necessary for giving effect to the
concept of wider civilisation'. The Courts must always remind
itself that it is a well settled principle of criminal jurisprudence
that more serious the offence, the stricter is the degree of proof.
A higher degree of assurance thus, would be necessary to
convict an accused."
12. In the light of above, it is to be examined whether learned trial
Court correctly concluded that prosecution could not prove its case beyond
the shadow of reasonable doubt regarding recovery of contraband in
question from conscious possession of accused person.
13. In the instant case, no special report had been sent by the
Investigating Officer to his immediate superior officers and the
investigation was also not verified by any Gazetted Police Officer. The
Investigating Officer did not comply with the directory provisions of
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Sections 52 and 57 of the NDPS Act, when no information was sent to the
senior police officers in compliance of provisions of Section 57 of the
NDPS Act. Rather it appears that every thing was kept as a guarded secret,
which has adversely effected the case of the prosecution.
14. It has been held by the Hon'ble Apex Court in Gurbax Singh
Vs. State of Haryana, 2001(1) RCR (Criminal), 702 (SC), that non
compliance of provisions of Sections 52 and 57 which are no doubt,
directory and violation thereof, would not ipso-facto vitiate the trial or
conviction. However, the Investigating Officer cannot totally ignore these
provisions as such failure will have bearing on the appreciation of evidence
regarding search of the accused and seizure. So non compliance of the
above said provisions has adversely effected the case of the prosecution.
15. Even in the statements of the official witnesses that have been
examined by the prosecution, there are material contradictions. PW5 SI
Jaivir Singh deposed during his cross-examination that the complaint
Ex.PW5/3 is in his handwriting, whereas PW6 HC Dilawar deposed that
Ex.PW5/3 was reduced into writing by HC Adalat Singh. Trial Court has
specifically observed that Ex.PW5/2 and Ex.PW5/3 are in one hand and
personal search memo and hand over memo and some portion of arrest
memo are in some other hand. Trial Court has further rightly observed that
the contradiction regarding author of Ex.PW5/3 is material one and it raises
the doubt that whether this document had been prepared at the spot or not.
PW5 and PW6 both deposed that arrest memo, personal search memo and
Ex.PW5/4 hand over memo were also prepared by HC Adalat Singh.
Learned trial Court has rightly held that when most of the documents were
prepared by HC Adalat Singh then he should have been cited as a witness
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and examined by the prosecution, so as to properly scrutinize that these
documents had been prepared at the spot.
16. We do not agree with this contention of learned State counsel
that only upon the aforesaid ground of non citing of HC Adalat Singh, the
accused has been acquitted. The specific finding has been given by learned
trial Court in the impugned judgment that this lapse itself had not gained
much importance, if the prosecution had succeeded to prove its case
otherwise and only after considering the totality of the facts and
circumstances and evidence on record, the non citing of HC Adalat Singh as
a prosecution witness had created doubt about the prosecution case.
17. The case of the prosecution also lacks the independent
corroboration. Though, it is not essential that independent witness is to be
joined and examined in each and every case and law is well settled that the
testimony of official witnesses is as good as that of the private witnesses.
Keeping in view the contradiction and discrepancies as pointed out above in
the prosecution case, the non joining of the independent witness has also
assumed importance and a doubt has been created that whether the alleged
recovery of the contraband in this case had taken place from the accused in
the manner as alleged by the prosecution.
18. It is a settled position that an order of acquittal is not to be
interfered with lightly because presumption of innocence of the accused is
further strengthened by acquittal. Interference is called for only under
compelling circumstances, where impugned findings are perverse,
unreasonable and convincing material on record has been ignored
unjustifiably by the trial Court. Reference in this regard can be made to
judgments of Hon'ble the Supreme Court in 'Mahamadkhan Nathekhan vs.
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State of Gujarat' 2014 (14) SCC 589 and Mallappa and others Vs. State of
Karnataka, 2024 AIR (SC) 1252.
19. Learned counsel for the applicant was unable to point out any
illegality, infirmity or perversity in the impugned decision dated 17.01.2020
which calls for interference.
20. In the instant case, keeping in view all the aforesaid
discrepancies and snags the trial Court has rightly reached at the conclusion
that the prosecution witnesses were not successful in bringing home guilt to
the accused beyond the reasonable doubt and it becomes doubtful if the
recovery took place in the mode and manner as alleged by the prosecution.
So, the accused has been rightly acquitted by giving him the benefit of
doubt.
21. In view of the above, no case is made out for grant of leave to
appeal against acquittal of accused/ respondent. The application without
having any merits stands dismissed and the leave to appeal is declined.
22. Pending applications, if any, also stand disposed of.
(SUKHVINDER KAUR) (ANOOP CHITKARA)
JUDGE JUDGE
08.12.2025.
Komal
Whether speaking/reasoned? : Yes/ No
Whether reportable? : Yes/ No
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