STATE OF HARYANA Vs. ASHA DEVI

JUDGEMENT

(1.) This appeal has been filed by the State of Haryana against the judgment and order dated 10.12.2007 of the High Court of Punjab and Haryana at Chandigarh in Criminal Misc. No.560-MA of 2007, whereby the High Court has declined to grant leave to the State to appeal against the acquittal of the respondents.

(2.) The facts of this case, as per the prosecution story, are that on 3.2.2006, when Sub Inspector Ram Phal, ASI Rishi Raj, Constable Surender Singh, Lady Constables Babita Rani and Promila, were on patrol duty in a police vehicle which was being driven by Constable Darshan Singh, near Chimni Bai Dharamshala, NIT No.3, SI Ram Phal received a secret information that Om Prakash son of Moti Lal, and his wife Asha Devi, residents of Gali No.1, Jhuggi Kalyanpuri, bring Ganja (intoxicated drug) from Madhya Pradesh and supply in Faridabad and if a raid is conducted at their house, Ganja in heavy quantity would be recovered. On receiving this information, the aforesaid police team raided the house of Om Prakash. On seeing the police party, Om Prakash managed to escape by scaling over the wall of the house. Asha Devi also tried to escape but she was apprehended with the help of Lady Constables. On query she disclosed her name as Asha wife of Om Prakash and also disclosed that the man who had escaped from the house was Om Prakash. A notice in writing under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act", for short) was served on her informing her of the right to either allow the Sub Inspector to take search of her house or opt for the search in presence of some Gazetted Officer or a Magistrate. Asha Devi consented for search of her house in the presence of some Gazetted Officer. Accordingly, Shri Maharaj Singh, the then Deputy Superintendent of Police, NIT, Faridabad, reached the spot and in his presence the house of Asha Devi was searched. Asha Devi unpacked a box, took out a bag containing Ganja and produced it before the Sub Inspector. The bag was weighed and found to be contained 11 Kgs. of Ganja out of which two samples of 200 gms. each were taken and sealed with letters "RP" and "MS" on the seal. Both the samples along with the residue and the specimen seal impressions were taken into possession by the police under the recovery memo which was prepared by I.O. Ramphal and witnessed by ASI Tej Ram and ASI Rishiraj and attested by DSP Maharaj Singh and thumb mark of Asha Devi. The case property along with the samples and the witnesses were produced before the Station House Officer, who after verifying the facts affixed his seal thereon and were deposited in the Moharrer Police Malkhana. A case was registered against accused Asha Devi under Section 20(61) of the NDPS Act and she was arrested. Thereafter, on 04.02.2006 case property and both samples were produced before the learned Judicial Magistrate, 1st Class, Faridabad. The learned judicial Magistrate broke the seals on the case property as well one of the samples. The learned Judicial Magistrate verified the material, photographs were taken and contraband was weighed; thereafter the sample was resealed with the seal of RP. The Judicial Magistrate directed the Investigation Officer to deposit the material to Judicial Malkhana. After investigation, accused Asha Devi was charged under Section 20 of the NDPS Act and accused Om Prakash was charged under Sections 28 & 29 of the NDPS Act. The accused pleaded not guilty and hence the case was committed for trial.

(3.) The Trial Court examined ten prosecution witnesses and two defence witnesses. After going through the prosecution evidence and after hearing the learned counsel for the parties, the Trial Court did not find favour with the prosecution version as according to it, on receiving the secret information, Sub Inspector did not join any independent witness during the investigation of the case despite the fact that they were available at the spot. It further found that the seal "RP" was entrusted to ASI Rishiraj after sealing the case property and samples on 3.2.2006; so, I.O. Ramphal could not have possessed that seal the next day when the case property was produced before the learned judicial magistrate. However, the learned judicial magistrate has testified to the fact that sample was resealed after verification, photograph and weighment with the seal of "RP". The learned Trial Court found it irreconcilable that seal "RP" could have been available with the learned Judicial Magistrate when ASI Rishiraj is not there. Further, the Trial Court found non production of ASI Rishiraj as prosecution witness creates more suspicion. Also, ASI Tej Raj (PW-2) had chased the accused Om Prakash when he was trying to run away but he was unable to apprehend him. This part of the story was also not believed by the Trial Court for the reason that five constables were standing outside the house of Om Prakash and it was not possible for Om Prakash to have scaled the wall of the house. The Trial Court found the evidence of the prosecution as completely inconsistent and untrustworthy and held that the prosecution has failed to prove its charges against the accused beyond all shadows of reasonable doubt and accordingly, acquitted the accused of the charges levelled against them.