State of Punjab v. Sahil Kumar and Another

SUDHIR SINGH,J.

The instant application seeking leave to appeal is preferred against the judgment dated 16.03.2023 passed by the learned Judge, pecial Court, Faridkot, whereby respondents have been acquitted of the charges under ection 22 of NDP Act, 1985.

¶2Vide order dated 18.01.2024, the Lower Court record was called for. The same was received on 07.02.2024.

¶3The prosecution case was that on 21.11.2018, a police party consisting of PW1 A I Paramjit ingh, PW2 Jagsir ingh and other police officials was patrolling in the area of Faridkot to Kotkapura. When the police reached near Dr. Parmod Gupta Dental Hospital, the accused/respondents were seen coming on a motorcycle bearing registration no. PB-04-Z-

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2991 and on seeing the police party, they became nervous. On suspicion, both the motorcyclists were apprehended and their names and particulars were ascertained. Accused ahil Kumar (Respondent no. 1) was driving the motorcycle and the accused Ramandeep ingh @ Raman (Respondent no. 2) was occupying the pillion seat. A transparent polythene bag containing intoxicant tablets was tied to the handle of motorcycle whereas another polythene bag containing intoxicant tablets was carried by accused Ramandeep ingh @ Raman (Respondent no. 2). ubsequently, PW1 A I Paramjit ingh conducted search of both the polythene bags and recovered 100 stripes of Clavitol - R - 100 Tramadol Hydrochloride, from each polythene bag. Each strip had 10 tablets and thus, a total of 1000 intoxicant tablets each were recovered from both the accused/respondents. Furthermore, PW1 A I Paramjit ingh converted the recovered tablets into two sealed parcels and prepared a sample seal chit. The personal search of the accused/respondent no. 1 ahil Kumar led to recovery of currency notes worth Rs. 200/- whereas Rs. 210/- currency notes were recovered from the personal search of accused/respondent no. 2-Ramandeep ingh @ Raman.

¶4Based on the aforesaid complaint, FIR No. 188 dated

21.11.2018 under ection 22 NDP Act, 1985, at P. . Kotkapura, was registered. After investigation, the chargesheet was submitted, whereafter cognizance was taken. Thereafter,

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charges were framed against the respondents to which they pleaded not guilty and claimed to be tried.

¶5During trial, the prosecution examined six witnesses, namely, PW1 A I Paramjit ingh (investigating officer), PW2 A I Jagsir ingh (recovery witness), PW3 Ct. Joginder ingh (link evidence), PW4 Ct. Harjinder ingh (link evidence), PW5 MHC Gurmeet ingh (link evidence) and PW6 I Charanjit ingh (officiating HO). In support of its case, the prosecution had also produced documentary evidence in the form of Ex P1, two sealed parcels of the recovered tablets with the seal impression ? K?; Ex. P2, currency notes recovered from the accused persons/respondents; Ex. P3, Ruqa; Ex. P4, FIR; Ex. P5, memo to call an advocate; Ex. P6, physical search memo; Ex. P7, grounds of arrest - cum - intimation memo; Ex. P10 and Ex. P11, report of the RTF L Bathinda; two sample parcels with two distinct protective parcels along with Form M-29 further affixing codes no. 48 and 49 with the seal impression of ?CK?; Ex. PX, seized motorcycle. The defence examined DW1 hanker Kumar, Municipal Councilor of Municipal Committee, Kotkapura; DW2 Jarnail ingh, neighbour of Ramandeep ingh @ Raman (respondent no. 2). After the conclusion of the trial, the learned Trial Court acquitted the accused persons/respondents.

¶6The grounds considered by the learned Trial Court for acquitting the Respondents are as under:-

i)k The testimony of PW1 and PW2, both recovery witnesses apart from Ruqa Ex. P3 or recovery memo Ex. P1, was completely silent about the

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necessary details of batch number, manufacturing date or the expiry date of the recovered tablets. uch information of batch number or manufacturing date or expiry date was also missing from subsequent documents consisting of handing over memo Ex. P9, Forms - M29 Ex. PW6/B and Ex. PW6/C, application Ex. PW6/D for verification of inventory and application Ex. PW6/E for conducting proceedings under ection 52-A of NDP Act.

ii)k In his cross examination, PW-1 stated that only R-Clavitol Tramadol Hydrochloride was mentioned on the stripes recovered from both the accused/respondents. He further showed ignorance and asserted that he had not seen any batch number or lot number mentioned on the strips recovered from the accused/respondents. imilarly, PW2 has deposed in his cross examination that he had not seen any lot number or batch number, date of manufacturing, date of expiry or the name of manufacturer on the strips recovered from the accused/respondents.

iii)k The reports of RTF L Bathinda Ex. P10 and Ex. P11 were completely silent about the batch number, date of manufacturing or expiry and name of the manufacturer of these strips.

iv)k The lack of necessary details like batch number or dates of manufacturing and expiry in the spot memos or F L reports Ex. P10 and Ex. P11 entailed to draw an inference that the tablets recovered by the IO were not similar with the tablets produced before Ld. Magistrate or the tablets received in the F L laboratory.

v)k There was no connection between the alleged recovered tablets during spot investigation and the tablets produced before the Duty Magistate, during the proceedings under ection 52-A NDP

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Act or the tablets received in the RTF L Bathinda for analysis.

¶7The learned tate counsel, while assailing the judgment of acquittal passed by the trial Court, would argue that the recovery was effected from the accused persons/respondents and both of them were formally arrested. Thereafter, the case property was kept in safe custody of PW6-I Charanjit Kaur, and both the sealed bulk parcels were produced before the learned Duty Magistrate. Also, PW1 identified the bulk parcels as MO1 and MO2, two samples as MO3 and MO4 and motorcycle MO5. He has further argued that there was no dispute regarding the collected samples of the case property and in the absence thereof, the finding recorded by the learned trial Court is not tenable.

¶8After hearing the arguments advanced by the learned counsel appearing for both the parties and upon marshaling the material available on the record, the following issues arise for consideration before this Court:- "i. Whether the batch number, manufacturing date and the expiry date are necessary details to be mentioned? ii. Whether the recovery of the case property from the spot and the sample tablets sent for chemical analysis was the same or different in nature?"

¶9With reference to the necessary details like batch number or dates of manufacturing and expiry in the spot memos or F L, it is important to notice that the tablets recovered by the Investigating Officer must be similar with the tablets produced before the learned Magistrate or the tablets received in the F L.

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In the instant case, it was found by the trial Court that there was a huge difference in the samples with relation to the average weight of each tablet or average quantity of Tramadol in each tablet. Furthermore, it would be pertinent to mention here that the tablets produced before the learned Duty Magistrate during the proceedings under ection 52-A of NDP Act were different from the tablets allegedly recovered at the spot or the sample tablets sent for chemical analysis which clearly depicts that there was no inter-se connection between the samples and the tablets.

¶10As there was no batch number or dates of manufacturing and expiry of the recovered contraband in the spot memos or F L report, the trial Court was justified in holding that such a course would lead to an inference that the tablets recovered by the Investigating Officer were not similar to the ones produced before the Magistrate. till further, a huge difference was found in the samples sent to the F L for chemical analysis and the ones produced before the Magistrate.

¶11Learned counsel for the applicant-tate could not point out any material from the record on the basis of which, it could be said that the findings recorded by the trial Court are illegal or perverse.

¶12In criminal appeal against acquittal what the Appellate Court has to examine is whether the finding of the learned court below is perverse and prima facie illegal. Once the appellate court comes to the finding that the grounds on which

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the judgment is based is not perverse, the scope of appeal against acquittal is limited considering the fact that the legal presumption about the innocence of the accused persons is further strengthened by the finding of the court. At this point, it is imperative to consider the decision of the Hon'ble upreme Court passed in the case of urajpal ingh & Ors. Vs. The tate,1952 CR 193, has held as under:- "..the High Court has full power to review the evidence upon which the order of acquittal was founded. But it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." In the case of Ghurey Lal Vs. tate of Uttar Pradesh, (2008) 10 CC 450 in para no. 75, the Hon'ble upreme Court re-iterated the said view and observed as follows: "75. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable."

¶13Thus, an order of acquittal is to be interfered with only for compelling and substantial reasons. In case the order is clearly unreasonable, it is a compelling reason for interference. But where there is no perversity in the finding of the impugned judgment of acquittal, the appellate Court must not take a

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different view only because another view is possible. It is because the trial Court has the privilege of seeing the demeanour of witnesses and, therefore, its decision must not be upset in the absence of strong and compelling grounds. Accordingly, both the issues framed above are answered in negative.

¶14In view of the above, we do not find any illegality and perversity in the findings recorded by the trial Court. Accordingly, the present application is dismissed and leave to appeal is declined.

(Sudhir Si gh) Judge

(Harsh Bu ger) Judge

15.02.2024 Mahavir/ds

-   Whether speaking/reasoned:    Yes/No -  Whether reportable:      Yes/No

CRM-A-1398-2023 (O&M) (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-1398-2023(O&M) Date of decision: 15.02.2024 tate of Punjab ?.Applicant Versus ahil Kumar & Anr. ?.Respondents CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH HON'BLE MR. JUSTICE HARSH BUNGER Present: Mr. Dhruv Dayal Additional AG, Punjab, for the applicant.