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Advocates
  • Mr. B.S. Parmar and Mr. V.S. Chauhan, Additional Advocates General with Mr. Vikram Thakur, Deputy Advocate General.
  • Ms. Monika Shukla, Advocate, Legal Aid counsel.
Judges
  • Sanjay Karol
  • P.S. Rana, JJ.
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citation codes
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Advocates
  • Mr. B.S. Parmar and Mr. V.S. Chauhan, Additional Advocates General with Mr. Vikram Thakur, Deputy Advocate General.
  • Ms. Monika Shukla, Advocate, Legal Aid counsel.
Judges
  • Sanjay Karol
  • P.S. Rana, JJ.
Acts
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Smart Summary

Structured Summary of the Judgement — State of Himachal Pradesh v. Atul Sharma (Appeal under Section 378 Cr.P.C.)

Factual and Procedural Background

This appeal was filed by the State under Section 378 Cr.P.C. against the judgment of the Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Sessions Trial No. 9-N/VII of 2007 (State of Himachal Pradesh v. Atul Sharma) under the Narcotic Drugs and Psychotropic Substances Act.

The prosecution's case, briefly, alleged that on 16.09.2006 police, acting on secret information, searched a scooter parked outside the accused's confectionery shop at Jassur and recovered 610 capsules of "Parvon Spas" and eight bottles of Corex from the dickey. The prosecution states that the accused consented to be searched by police (having been offered the option of search before a gazetted officer or magistrate), samples were taken and sealed, NCB forms were prepared, and samples were sent for forensic analysis which reported prohibited substances (Dextropropoxyphene Hydrochloride in the capsules and Codeine Phosphate in Corex). A ruka was prepared and FIR registered; the trial court framed a charge under Section 22 of the NDPS Act. The accused pleaded not guilty and claimed trial.

The trial court acquitted the accused of the offence under Section 22 NDPS Act. The State filed the present appeal challenging whether the trial court properly appreciated oral and documentary evidence and whether there was a miscarriage of justice.

Legal Issues Presented

  1. Whether the learned trial court misappreciated the oral and documentary evidence placed on record (i.e., whether the acquittal was unsustainable).
  2. Whether the trial court committed a miscarriage of justice as alleged in the memorandum of grounds of appeal.

Arguments of the Parties

Appellant (State) — Primary Submissions

  • The learned trial court did not properly appreciate the oral and documentary evidence placed on record and thereby caused a miscarriage of justice.
  • The prosecution relied on testimonies of police officials and submitted that the evidence (including signatures on seizure documents) supported conviction.
  • The State additionally argued there was no prior enmity between police officials and the accused, implying the evidence of police witnesses should be accepted.
  • The State contended that admission of signatures by an independent witness (PW1) supported the prosecution case.

Respondent / Accused — Primary Points

  • The accused denied the allegations, stated he was innocent and had been falsely implicated (as recorded under Section 313 Cr.P.C.).
  • The accused did not lead any defence evidence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
HLJ 2011 HP 1195 (DB) — Nanha v. State Held that if the original seal is not produced then conviction could not be recorded. The court treated non-production of the original seal (which was allegedly handed over to PW1) as fatal to the prosecution's case and relied on this principle in affirming acquittal.
(1998)8 SCC 449 — State of Rajasthan v. Gopal Referenced in support of the principle that non-production of the original seal is fatal to conviction. Used as supporting authority for the proposition that absence of the original seal undermines the prosecution's case.
AIR 1976 SC 985 — Bhagwan Singh v. State of Rajasthan Investigation conducted entirely by the complainant (police officer) is deprecated. Cited to fault the prosecution because the complainant (SI Bahadur Singh) conducted the entire investigation, which was held to cause a miscarriage of justice in the court’s view.
1993 Criminal Law Journal 3716 — Gyan Chand v. State of Rajasthan Referenced alongside Bhagwan Singh to condemn investigation carried out exclusively by the complainant. Used to reinforce the court's reservation about the impartiality of an investigation conducted wholly by the complainant.
1998(2) S.L.J. 1408 — Shashi Pal & others v. State of H.P. Illustrates the principle that when two views are possible, the view favourable to the accused should be adopted. Invoked to justify affirming the acquittal where two possible views of the evidence emerged.
1993 (1) SLJ 405 — State of H.P. v. Sudarshan Singh Example of the settled principle favouring the accused when two views are possible. Relied on as supporting authority for not disturbing an acquittal when the evidence permits two reasonable conclusions.
1995 (3) SLJ 1819 — State of H.P. v. Inder Jeet & others Same general principle (two views — favour accused) as above. Used in the cluster of authorities supporting the appellate restraint in disturbing acquittals.
1995(4) SLJ 2728 — State of H.P. v. Diwana & others Same general principle (two views — favour accused). Part of the line of state-authority citations relied on to support appellate deference to trial-court acquittals.
(2005) 9 SCC 765 (DB) — Anjlus Dungdung v. State of Jharkhand Held that suspicion, however strong, cannot take the place of proof. Cited to emphasize that mere suspicion by police does not warrant conviction; court applied this as part of the reasoning to sustain acquittal.
AIR 1979 SC 1382 — State (Delhi Administration) v. Gulzarilal Tandon Established that suspicion however grave and strong cannot replace proof. Relied upon to reiterate the principle that conviction cannot be founded on suspicion; supported the court's view in favour of acquittal.
AIR 1984 SC 1622 — Sharad Birdhichand Sarda v. State of Maharashtra Cited in the context of principles governing proof and the role of suspicion. Used as additional Supreme Court authority to support the requirement of proof beyond suspicion.
AIR 1983 SC 906 — Bhugdomal Gangaram & others v. State of Gujarat Referenced among other Supreme Court authorities on proof and appellate standards. Part of the supporting authorities for principles governing conviction and appellate interference.
AIR 1985 SC 1224 — State of U.P. v. Sukhbasi & others Referenced for related principles on proof and evaluation of evidence. Used as one of several authorities to support the court’s approach to evidence and acquittal.
(2013) 2 SCC 89 — Mookkiah & another v. State Principle that an appellate court should not ordinarily set aside an acquittal where two views are possible. Cited to underline appellate restraint and to support affirming the trial court’s acquittal.
2011 (11) SCC 666 — State of Rajasthan v. Talevar Referenced among authorities elaborating appellate standards in criminal cases. Invoked as part of the doctrinal framework cautioning appellate courts before disturbing acquittal.
AIR 2012 SC (Supp) 78 — Surendra v. State of Rajasthan Referenced for the principles on appellate review of factual findings. Used in support of the court's approach to maintaining acquittal where the trial court's view was reasonable.
2012 (1) SCC 602 — State of Rajasthan v. Shera Ram Alias Vishnu Dutta Referenced on appellate counsels regarding disturbing acquittal. Part of the bundle of authorities relied upon to emphasize restraint in overturning acquittals.
AIR 1974 SC 2165 — Balak Ram & another v. State of U.P. Set out principles governing appellate interference with acquittals and facts to be considered. Cited to delineate factors an appellate court must consider before reversing acquittal.
(2002) 3 SCC 57 — Allarakha K. Mansuri v. State of Gujarat Appellate principles and standards for interfering with acquittal. Used among authorities to justify affirming the acquittal because two views were possible.
(2003) 1 SCC 398 — Raghunath v. State of Haryana Another authority on appellate standards in criminal cases. Relied on to reinforce the court's conclusion that acquittal need not be disturbed absent perverse findings.
AIR 2007 SC 3075 — State of U.P. v. Ram Veer Singh & others Appellate approach to findings of fact in criminal trials. Part of the authority cluster supporting appellate restraint where trial court's view was sustainable.
AIR 2008 SC 2066 (2008) 11 SCC 186 — S. Rama Krishna v. S. Rami Raddy & others Cited for principles on appellate interference and evaluation of competing views. Invoked as supportive appellate precedent for not upsetting an acquittal when two reasonable views exist.
(2009) 10 SCC 206 — Arulvelu & another v. State Addressed appellate review of acquittals and standards of interference. Used to buttress the court's reliance on established principles favouring the accused when evidence permits more than one view.
(2009) 16 SCC 98 — Perla Somasekhara Reddy & others v. State of A.P. Another authority on appellate standards in criminal matters. Part of the jurisprudential basis relied upon by the court in declining to disturb acquittal.
(2010) 2 SCC 445 — Ram Singh Alias Chhaju v. State of Himachal Pradesh Illustrative Supreme Court authority on appellate interference standards. Cited as additional support for the appellate court's decision to affirm the trial court's acquittal.

Court's Reasoning and Analysis

The court reviewed the evidence (oral and documentary) and found multiple material infirmities in the prosecution case which, taken together, justified affirming the trial court's acquittal. The court's step-by-step reasoning, as reflected in the opinion, is the following:

  • PW1 (Balvinder Singh) inconsistent/fatal: PW1, an independent witness present at the search, stated he did not remember the scooter's registration number, said the accused was not the owner of the scooter, that the dickey was unlocked, and that he had signed memos at the police station. The court found this testimony undermined the prosecution's assertion that the scooter (and contraband) were in the exclusive possession of the accused.
  • Non-registration of scooter in accused's name: Testimony established the scooter's RC remained in the earlier owner's name (Pawan Kumar) and had been sold to Ravinder Kumar with incomplete payment; the scooter was not registered to the accused. The court held non-registration in the accused's name was fatal to the prosecution's claim of exclusive possession.
  • Non-examination of the cousin (person allegedly given the scooter): PW6 (Ravinder) stated the scooter's possession was handed to the accused's cousin, not expressly to the accused. The prosecution did not examine that cousin to clarify possession, and the court regarded this omission as material and detrimental to the prosecution's case.
  • Non-production of the original seal: The record showed the original seal used for sealing the parcels was handed over to PW1 after use, but the original seal was not produced in court for comparison. The court treated the non-production of the original seal as fatal, relying on cited authority (including Nanha v. State and State of Rajasthan v. Gopal).
  • Non-examination of another independent witness (Neeraj Thakur): Although Neeraj Thakur was present in court, the public prosecutor did not examine him (being given up as repetitive). The court considered the non-examination of this independent witness to be detrimental to the prosecution.
  • Resealing column left blank on NCB form: The NCB form did not record resealing particulars (column left blank). The court viewed this omission as a flaw in the chain/record of custody and fatal to the prosecution case.
  • Recovery from a public place: The contraband was found in the scooter standing in a public place outside the accused's shop, not in a place shown to be in the exclusive and conscious possession of the accused; the site plan confirmed public-location recovery. This created reasonable doubt about exclusive possession.
  • Investigation conducted by the complainant: The complainant (SI Bahadur Singh) himself conducted the entire investigation — seizure memos, site plan and recording of witness statements. The court held that such conduct (investigation by the complainant himself) was deprecated by higher authorities and contributed to the conclusion that a miscarriage of justice would occur if conviction were recorded.
  • Conflicting witness positions and legal standard: Although some police witnesses supported the prosecution's version, the independent witness PW1 did not. Given the presence of two plausible views on the evidence, the court applied settled law that in such circumstances the view favourable to the accused must be adopted and suspicion cannot take the place of proof.

Holding and Implications

Core Ruling: The appeal filed by the State is dismissed and the judgment of acquittal passed by the learned trial court is affirmed.

Consequences and implications (as stated in the opinion):

  • The court held that the learned trial court did not commit a miscarriage of justice and had properly appreciated the oral and documentary evidence.
  • Contraband (the recovered capsules and Corex bottles) is to be forfeited in favour of the State of Himachal Pradesh in accordance with law after the expiry of limitation for filing further proceedings.
  • The appeal stands disposed of; the file of the trial court along with a certified copy of the judgment is to be returned forthwith. All pending miscellaneous applications, if any, are disposed of.

The court did not indicate that it was laying down any new legal precedent; it applied existing authorities and principles to the facts before it and affirmed the acquittal.

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    State Of H.P. v. Atul Sharma

    Piar Singh Rana, J.

    1. Present appeal is filed by the State under Section 378 of Code of Criminal Procedure 1973 against the judgment passed by learned Additional Sessions Judge Fast Track Court Kanga at Dharamshala under Narcotic Drugs and Psychotropic Substances Act in Sessions Trial No. 9-N/VII of 2007 titled State of Himachal Pradesh v. Atul Sharma.

    OF THE PROSECUTION CASE:

    2. Brief facts of the case as alleged by prosecution are that on dated 16.9.2006 police officials conducted the search of motor cycle of accused bearing No. PB-08-2906 near his confectionery shop at Jassur and it is further alleged by prosecution that on checking of dickey 610 capsules of Parvon Spas and eight bottles of corex were found. It is alleged by prosecution that secret information was received by SI Bahadur Singh that accused deals in Charas and other offending articles in his shop situated at Jassur. It is alleged by prosecution that report Ext. PW15/A was prepared and same was sent to DSP Nurpur through C. Nirmal Singh the copy of which is Ext. PW2/A. It is alleged by prosecution that ruka Ext. PW2/B was prepared by SI Bahadur Singh and was sent to police station through C. Gurdeep for registration of FIR on the basis of which FIR Ext. PW12/A was registered. It is alleged by prosecution that SI Bahadur Singh joined the witnesses namely Balvinder Singh and Neeraj in police party and proceeded to the shop situated at Jassur. It is alleged by prosecution that accused was informed that he has legal right to be searched before gazetted officer or Magistrate. It is alleged by prosecution that accused consented that he should be searched before the police officials. It is further alleged by prosecution that police officials were also searched and memo Ext. PW1/A was prepared. It is alleged by prosecution that scooter bearing registration No. PB-08-2906 was found parked outside the shop which was also searched after obtaining keys from accused. It is alleged by prosecution that in dickey of scooter 610 capsules of Parvon Spas and 8 bottles of corex were found. It is alleged by prosecution that 10 capsules out of 610 recovered capsules took out for samples purpose and one bottle out of 8 bottles also took out for sample purpose. It is alleged by prosecution that samples were taken and sealed in the parcels. It is alleged by prosecution that NCB forms in triplicate Ext. PW2/C was prepared. It is alleged by prosecution that impression of seal was obtained on a piece of cloth and seal after use was handed over to witness Balvinder Singh. It is alleged by prosecution that thereafter police officials proceeded to police station Nurpur and four parcels along with NCB form in triplicate and impression of seal were deposited with MHC. It is alleged by prosecution that site plan Ext. PW15/B was prepared. It is further alleged by prosecution that scooter was purchased by accused from Ravinder who had purchased it from Pawan Kumar in consideration amount of Rs.2000/- (Rupees two thousand only). It is alleged by prosecution that registration certificate which was in the name of earlier owner Pawan Kumar was also took into possession vide memo Ext. PW5/B and RC is Ext. PW5/C. It is alleged by prosecution that sample parcels were sent to FSL Junga along with NCB form and impression of seal. It is alleged by prosecution that sample of contents of capsules recovered vide report Ext. PA were found Dextropropoxyphene Hydrochloride which is prohibited substance under N.D. & P.S. Act and corex was found containing Codeine Phosphate which is also prohibited under N.D. & P.S. Act. It is alleged by prosecution that special report was sent to S.P. from police station which was received by Reader working there and entry was made in relevant register Ext. PW13/D.

    3. Learned trial Court framed charge against the accused under Section 22 of Narcotic Drugs and Psychotropic Substances Act. Accused did not plead guilty and claimed trial.

    4. The prosecution examined the following witnesses in support of its case:--

    4.1. Prosecution also produced following piece of documentary evidence in support of its case:--

    5. Learned trial Court acquitted accused qua offence punishable under section 22 of n.d. & p.s. act. Feeling aggrieved against the judgment passed by learned Additional Sessions Judge Fast Track Court Kangra at Dharamshala the State filed present appeal.

    6. We have heard learned Additional Advocate General appearing on behalf of the State of H.P. and learned Advocate appearing on behalf of the respondent and also perused the entire record carefully.

    7. Question that arises in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal.

    ORAL EVIDENCE ADDUCED BY PROSECUTION:

    8.1. PW1 Balvinder Singh has stated that on dated 16.9.2006 he remained with police during investigation. He has stated that they went to the shop of accused and police gave their personal search in presence of accused. He has stated that Neeraj Thkaur was also present during the search process. He has stated that memo Ext. PW1/A was prepared which was signed by him and witness Neeraj Thakur. He has stated that police officials have also signed the same in addition to accused. He has stated that accused was given option whether he wanted to be searched by gazetted officer or magistrate but accused gave in writing that he wanted to be searched by police officials. He has stated that consent memo Ext. PW1/B was prepared which was signed by him and Neeraj Thakur and also signed by accused in red encircle at point 'A'. He has stated that personal search of police officials was conducted in his presence and in presence of Neeraj Thakur and nothing was found from their personal search and memo Ext. PW1/C was prepared. He has stated that thereafter search of confectionery shop of accused was conducted but no contraband was found. He has stated that on search of one scooter some capsules were recovered but he did not remember the registration number of scooter. He has stated that there were 610 capsules and 8 bottles of corex. He has stated that 600 capsules were sealed in parcels and remaining 10 capsules were taken out for sample purpose and they were also sealed separately. He has stated that sealed parcels bear his signatures and signatures of accused. He has stated that scooter was also took into possession vide seizure memo Ext. PW1/F. He has stated that Ext. P2 and Ext. P5 are seen by him and capsules are same which were recovered by I.O. He has stated that accused was not owner of scooter in question. He has stated that on all papers he affixed his signatures at police station. He has stated that owner of scooter was called to police station on the same day. He has stated that dickey of scooter was unlocked.

    8.2. PW2 ASI Hoshiar Singh has stated that since 2005 he was posted as I.O. in P.S. Nurpur and on dated 16.9.2006 he accompanied SI Bahadur Singh and other police officials on patrolling. He has stated that when they reached at Baur secret information was received by SI Bahadur Singh that accused deals in contraband in his shop. He has stated that thereafter information was sent to DSP through C. Nirmal Singh the copy of which is Ext. PW2/A. He has stated that thereafter ruka Ext. PW2/B was sent through C. Gurdeep to police station and thereafter they proceeded to Jassur chowk and associated Balvinder Singh and Nirmal in investigating team. He has stated that accused was found present in shop and his consent Ext. PW2/C was obtained. He has stated that accused had given the consent to be searched before police officials. He has stated that consent memo bears his signatures and also bears the signatures of witnesses Balvinder Singh and Neeraj Thakur. He has stated that shop of accused was also searched but nothing was found. He has further stated that scooter No. PB-08-2906 was found parked in front of shop of accused which was locked and keys were taken from accused. He has stated that on opening the dickey of scooter a polythene bag was found which was containing capsules Ext. P2 and bottles of corex Ext. P5. He has stated that capsules were 610 and bottles were 8 in number. He has stated that thereafter 10 capsules were took out and sealed separately and one bottle was also packed and sealed in a piece of cloth. He has stated that remaining 7 bottles of corex were also packed in parcels and thereafter sealed. He has stated that site plan was also prepared at the spot. He has denied suggestion that all documents were prepared in police station. He has denied suggestion that signatures of independent witnesses were also obtained in police station. He has denied suggestion that accused did not provide the keys of scooter. He has denied suggestion that scooter was lying in the open.

    8.3. PW3 C. Nirmal Singh has stated that since the year 2004 he remained posted at P.S. Nurpur and on dated 16.9.2006 he was accompanying the police party headed by S.I. Bahadur Singh. He has stated that at about 12.15 Noon when they reached at Baur chowk they received secret information. He has stated that copy of secret information was sent and handed over to SDPO Nurpur at 12.50 PM. He has denied suggestion that no report was taken by him to SDPO Nurpur and also denied suggestion that report was manipulated at later stage.

    8.4. PW4 C. Gurdeep Singh has stated that he is posted at P.S. Nurpur and on dated 16.9.2006 he was accompanied with SI Bahadur Singh on patrolling duty. He has stated that at Baur secret information was received by SI Bahadur Singh who handed over ruka Ext. PW2/B to him which he took to police station and handed over to MHC Bir Singh. He has stated that MHC Bir Singh after registration of FIR made an endorsement on ruka and he handed over the file to I.O. He has denied suggestion that no ruka was taken by him to police station.

    8.5. PW5 Pawan Kumar has stated that scooter bearing No. PB-08-2906 Bajaj Chetak belonged to him was sold by him to Ravinder Kumar resident of Jassur. He has stated that affidavit Ext. PW5/A was executed. He has stated that thereafter Ravinder had also executed affidavit Ext. PW5/B. He has stated that RC remained in his name which is Ext. PW5/C because full price was not paid by Ravinder. He has stated that on dated 19.9.2006 Ext. PW5/A to Ext. PW5/C were handed over to police vide memo Ext. PW5/D in presence of Rajneesh and Purshottam. He has stated that he has no concern with scooter.

    8.6. PW6 Ravinder Singh has stated that on dated 11.9.2006 he had purchased scooter No. PB-08-2906 in consideration amount of Rs.2000/- (Rupees two thousand only) vide affidavits Ext. PW5/A and Ext. PW5/B. He has stated that RC remained in name of Pawan Kumar. He has stated that on dated 16.9.2006 one cousin of accused took the scooter informing him that accused had demanded the scooter as he had to go to somewhere. He has stated that later on he came to know that contraband was recovered from the scooter. Witness was declared hostile. He has stated that accused is personally known to him. He has stated that shop of accused is situated in front of his shop. He has denied suggestion that being neighbourer he is deposing falsely to save the accused.

    8.7. PW7 HC Sushil Kumar has stated that since 2003 to July 2007 he remained posted as Reader to Dy. S.P. Nurpur and further stated that report Ext. PW2/A is correct copy of memo and received by him in office of SDPO. He has stated that he handed over the report to SDPO who made his endorsement within red circle at point 'A'. He has stated that he was familiar with signatures of SDPO as he worked under him. He has denied suggestion that original report Ext. PW2/A was prepared subsequently.

    8.8. PW8 HC Kripal Singh has stated that since July 2006 he was posted in police station Nurpur and on dated 18.9.2006 MHC P.S. Nurpur handed over to him special report to be handed over to S.P. Dharamshala and he had given the same to the Reader to S.P. He has denied suggestion that special report was prepared subsequently.

    8.9. PW9 C. Sushil Kumar has stated that since September 2006 he was posted in police station Nurpur. He has stated that parcels were handed over to him by MHC Bir Singh sealed with seal 'D' along with NCB form and he deposited the same in CTL Kandaghat on dated 20.9.2006. He has stated that parcels were returned from the office of CTL Kandaghat informing that they were unable to conduct the test. He has stated that on return he deposited the parcels with MHC on dated 23.9.2006.

    8.10. PW10 C. Sudershan Singh has stated that since November 2005 he remained posted in police station Nurpur till December 2006 and on dated 5.11.2006 MHC Bir Singh handed over to him two sealed parcels to be deposited in FSL Junga vide RC No. 272/2006. He has stated that parcels were not accepted by office of FSL Junga and thereafter he returned and deposited again in police station on dated 9.11.2006.

    8.11. PW11 C. Pawan Kumar has stated that on dated 24.9.2006 MHC Mohinder Singh handed over two parcels to him to be deposited at CFSL Chandigarh. He has stated that parcels were not accepted by office of CFSL Chandigarh and thereafter he returned the parcels to MHC. He has stated that again on dated 26.01.2007 parcels were handed over to him by MHC Bir Singh vide RC No. 15/07 with a direction to be deposited with FSL Junga along with NCB form Ext. PW2/C. He has stated that road certificate is Ext. PW11/A and after depositing the parcels he handed over the receipt to MHC.

    8.12. PW12 HC Bir Singh has stated that since February 2006 he was posted as MHC P.S. Nurpur and on dated 16.9.2006 ruka Ext. PW2/B was received which was sent by SI Bahadur Singh through C. Gurdeep and he registered FIR Ext. PW12/A. He has stated that file was sent through C. Gurdeep and on the same day SI Bahadur Singh deposited four parcels sealed with seal 'D' Ext. P1 to Ext. P4 having six seals each. He has stated that parcels Ext. P3 and Ext. P6 were sealed with seal 'D' at three places. He has stated that impression of seal Ext. PW2/D along with NCB forms in triplicate was also deposited with him. He has stated that on dated 19.9.2006 two sample parcels along with NCB form were sent to CTL Kandaghat through Sushil Kumar vide RC No. 225/06 who returned the parcels because same were not accepted by CTL Kandaghat. He has stated that again on dated 5.11.2006 these parcels were sent through C. Darshan Kumar vide RC No. 272/06 to FSL Junga and he also returned the parcels and deposited with him. He has stated that again on dated 26.1.2007 parcels were again sent to FSL Junga vide RC No. 15/07 through C. Pawan Kumar and deposited the same on dated 27.1.2007 along with sample of seal and one NCB form and on return he deposited the receipt and RC with them. He has denied suggestion that Ext. PW2/A and Ext. PW12/A were prepared subsequently to create false evidence against the accused.

    8.13. PW13 HC Subhash Chand Reader to S.P. has stated that since the year 2003 he was posted as Reader to S.P. Kangra at Dharamshala and report Ext. PW8/A was received through C. Kripal Singh of P.S. Nurpur and he produced the same before S.P. who made endorsement Ext. PW13/A. He has stated that he was well conversant with signatures of S.P. as he worked under him. He has stated that extract of register No. 18 is Ext. PW13/B. He has denied suggestion that document Ext. PW8/A was received later on and same was fabricated against the accused.

    8.14. PW14 Inspector Nathu Ram has stated that he remained posted in P.S. Nurpur from 2004 to August 2007 and on conclusion of investigation he prepared challan after receipt of FSL report Ext. PA and presented in Court.

    8.15. PW15 SI Bahadur Singh has stated that in the year 2006 he was posted as I.O. in police station Nurpur. He has stated that on dated 16.9.2006 he along with other police officials was on patrolling. He has stated that at Bohar secret information was received that accused deals in charas in his shop at Jassur. He has further stated that information was sent to SDPO Nurpur which is Ext. PW2/A and ruka Ext. PW2/B was sent to P.S. Nurpur through C. Gurdeep and on the basis of which FIR Ext. PW12/A was registered. He has stated that after receipt of file investigation was conducted. He has stated that Balvinder and Neeraj were joined in police team and when they reached near the shop accused was found present in shop. He has stated that accused was informed whether he intended to be searched before gazetted officer or Magistrate. He has further stated that thereafter accused had given his consent to be searched before police officials. He has stated that police officials have also given their personal search to accused in presence of witnesses and memo was prepared. He has stated that scooter having registration No. PB-08-2906 was parked in front of the shop of accused and further stated that keys of scooter were obtained from accused and dickey of scooter was opened. He has stated that inside the dickey 610 capsules were recovered and 8 bottles of corex were also recovered which are Ext. P5 and Ext. P6. He has stated that 10 capsules as well as one bottle took out for sample purpose which are Ext. P3 and Ext. P6. He has stated that thereafter sample as well as bulk were packed separately in cloth parcels and thereafter sealed. He has stated that witnesses have also signed the parcels. He has stated that NCB form in triplicate was prepared and impression of seal Ext. PW2/D was obtained and further stated that seal was handed over to Balvinder Singh after use. He has stated that seizure memo Ext. PW1/B was prepared and copies were supplied to accused. He has stated that thereafter case property was deposited in police station with MHC. He has stated that spot map was also prepared and original notes of spot map are in his hand. He has stated that thereafter Pawan Kumar owner of scooter was called who produced his affidavits Ext. PW5/A and Ext. PW5/B and RC Ext. PW5/C and same took into possession vide memo Ext. PW5/D in presence of Rajnish Sharma and Purshottam Kumar on dated 19.9.2006. He has stated that thereafter special report Ext. PW8/A was sent to S.P. Kangra at Dharamshala through C. Kripal Singh and he also recorded statements of prosecution witnesses as per their versions. He has stated that capsules Ext. P6600 in number are the same and bottles Ext. P5 seven in number are same which were recovered from possession of accused. He has stated that cousin of accused was not interrogated. He has denied suggestion that all formalities were conducted in police station and also denied suggestion that false case has been filed against the accused.

    9. Statement of accused was recorded under Section 313 Cr.P.C. Accused has stated that he is innocent and he has been falsely implicated in present case. Accused did not lead any defence evidence.

    10. Submission of learned Additional Advocate General appearing on behalf of State that learned trial Court did not properly appreciate the oral as well as documentary evidence placed on record and caused miscarriage of justice to the appellant-State is rejected being devoid of any force for the reasons hereinafter mentioned.

    Testimony of PW1 Balvinder Singh is fatal to the prosecution

    10.1. In the present case it is the case of prosecution that PW1 Balvinder Singh is independent witness and he participated in search and seizure proceedings. PW1 Balvinder Singh when appeared in witness box has specifically stated that he does not remember the registration number of scooter from which 610 capsules Parvon Spas and 8 bottles of corex were recovered. PW1 Balvinder Singh did not prove the registration number of scooter in positive cogent and reliable manner. PW1 has specifically stated in positive manner that accused was not owner of scooter in question and further stated that dickey of scooter was unlocked. He has also stated that he has signed memo in police station. Above stated testimony of this prosecution witness creates doubt in the mind of Court.

    Non-registration of scooter No. PB-08-2906 in the name of accused is also fatal to prosecution

    10.2. It is the case of prosecution that contraband was recovered from scooter which was exclusively in possession of accused. PW5 Pawan Kumar has specifically stated in positive manner that he sold the scooter to Ravinder Kumar but RC was in his name because Ravinder Kumar did not pay the entire sale consideration amount. Hence we are of the opinion that non-registration of scooter in the name of accused is fatal to prosecution.

    Non-examination of cousin of accused is also fatal to the prosecution

    10.3. PW6 Ravinder has specifically stated in positive manner when he appeared in witness box that possession of scooter No. PB-08-2906 was handed over to cousin of accused by him. PW6 Ravinder did not state that he personally handed over the possession of scooter to accused. Prosecution did not examine the cousin of accused in order to prove that cousin of accused had handed over the possession of scooter to accused.

    Non-production of original seal in Court is also fatal to prosecution

    10.4. In present case it is proved on record that original seal after use was handed over to PW1 Balvinder Singh. But PW1 Balvinder Singh did not produce original seal in Court for comparison purpose. We are of the opinion that non-production of original seal for comparison purpose is also fatal to the prosecution. It was held in case reported in Latest : HLJ 2011 HP 1195 (DB) titled Nanha v. State that if original seal is not produced then conviction could not be recorded. (See (1998)8 SCC 449 titled State of Rajasthan v. Gopal)

    Non-examination of another independent witness Neeraj Thakur is also fatal to the prosecution

    10.5. It is proved on record that another independent witness Neeraj Thakur was present in Court on dated 24.10.2007 but he was not examined by learned Public Prosecutor Mr. N.S. Verma to avoid repetition. We are of the opinion that non-examination of another independent witness on behalf of prosecution is also fatal to prosecution despite the fact that Neeraj Thakur was present in Court for examination on dated 24.10.2007.

    Non-resealing of parcels is also fatal to the prosecution

    10.6. We have carefully perused the NCB form placed on record. Resealing process was not conducted by SHO and column of resealing process has been kept blank. We are of the opinion that column of resealing process kept blank in NCB form is also fatal to the prosecution and miscarriage of justice has been caused to the accused.

    Recovery of scooter in open public place is also fatal to the prosecution

    10.7. It is the case of prosecution that contraband was recovered from the scooter which was standing upon the public place situated outside the shop of accused. It is not proved on record that scooter was recovered from the place which was in exclusive and conscious possession of accused. Recovery of scooter from public place as shown in site plan Ext. PW15/B placed on record has also created doubt in the mind of Court.

    Entire investigation conducted by complainant himself is also fatal to the prosecution

    10.8. In present case it is proved on record that complainant is SI Bahadur Singh as per FIR Ext. PW12/A and it is proved on record that entire investigation has been conducted by complainant himself and there is no evidence on record in order to prove that investigation was handed over to some other independent Investigating Officer. It is not the case of prosecution that no other independent Investigating Officer was available to conduct impartial investigation. We are of the opinion that conducting entire investigation i.e. preparation of seizure memo, site plan, recording statements of witnesses by complainant himself has caused miscarriage of justice to accused qua fair investigation. Entire investigation by complainant himself was deprecated by Hon'ble Apex Court of India in case reported in : AIR 1976 SC 985 titled Bhagwan Singh v. State Of Rajasthan .. (Also see : 1993 Criminal Law Journal 3716 titled Gyan Chand v. State of Rajasthan)

    11. Submission of learned Additional Advocate General appearing on behalf of the State that there is no prior enmity of police officials with accused and on the basis of testimonies of police officials accused be convicted is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that search and seizure memo Ext. PW1/A is substantive document in present case. Eye witnesses of search and seizure memo are Balvinder Singh, Neeraj Thakur and ASI Hoshiar Singh. PW1 Balvinder Singh has specifically stated in positive manner when he appeared in witness box that he does not remember the registration number of scooter. He has specifically stated that accused was not owner of scooter in question and he has further stated that he has signed all memos in police station. He has also stated that dickey of scooter was unlocked. PW1 Balvinder Singh did not support the prosecution story as alleged by prosecution. Prosecution did not examine another independent witness of seizure memo namely Neeraj Thakur although he was present in Court on dated 24.10.2007 and he was given up by Mr. N.S. Verma learned Public Prosecutor being repetitive in nature. Although ASI Hoshiar Singh posted in police station Nurpur has supported the prosecution story but two views have emerged in present case. ASI Hoshiar Singh has supported the prosecution story as alleged by prosecution and PW1 did not support the prosecution story as alleged by prosecution. It is well settled law that when two views are possible then view favourable to accused should be adopted. (See: 1998(2) S.L.J. 1408 Shashi Pal and others v. State of HP, See : 1993 (1) SLJ 405 titled State of H.P. v. Sudarshan Singh, See : 1995 (3) SLJ 1819 titled State of Himachal Pradesh v. Inder Jeet and others, See : 1995(4) SLJ 2728 titled State of H.P. v. Diwana and others). It was held in case reported in : (2005)9 SCC SC 765 (DB) titled Anjlus Dungdung v. State of Jharkhand that suspicion however strong cannot take place of proof. It was again held in case : AIR 1979 SC 1382 titled State (Delhi Administration) v. Gulzarilal Tandon that suspicion however grave and strong cannot take place of proof. (Also see : AIR 1984 SC 1622 titled Sharad Birdhichand Sarda v. State of Maharashtra, See: AIR 1983 SC 906 titled Bhugdomal Gangaram and others v. the State of Gujarat See: AIR 1985 SC 1224 titled State of U.P. v. Sukhbasi and others)

    12. Another submission of learned Additional Advocate General appearing on behalf of State that PW1 Balvinder Singh has admitted his signatures on seizure memo and on this ground accused be convicted is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that admission of signatures in document does not mean that signatory had admitted the contents of document. PW1 Balvinder Singh when appeared in witness box has specifically denied the contents of search and seizure memo placed on record. It is well settled principle of law that if two reasonable conclusions are possible on the basis of the evidence on record the appellate Court should not disturb the finding of acquittal recorded by the trial Court. (See : (2013)2 SCC 89 titled Mookkiah and another v. State See : 2011(11) SCC 666 titled State of Rajasthan v. Talevar, See : AIR 2012 SC (Supp) 78 titled Surendra v. State Of Rajasthan, See : 2012(1) SCC 602 State Of Rajasthan v. Shera Ram Alias Vishnu Dutta.) It is also well settled principle of law (i) That Appellant 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 more probable. (ii) That while dealing with a judgment of acquittal Appellant Court must consider entire evidence on record so as to arrive at a finding as to whether views of learned trial Court are perverse or otherwise unsustainable. (iii) That Appellate Court is entitled to consider whether in arriving at a finding of fact, learned trial Court failed to take into considered any admissible fact. (iv) That learned trial Court took into consideration evidence contrary to law. (See : AIR 1974 SC 2165 titled Balak Ram and another v. State of U.P., See : (2002)3 SCC 57, titled Allarakha K. Mansuri v. State Of Gujarat., See : (2003)1 SCC 398 Raghunath v. State of Haryana, See : AIR 2007 SC 3075 State of U.P. v. Ram Veer Singh and others, See : AIR 2008 SC 2066 (2008) 11 SCC 186 S. Rama Krishna v. S. Rami Raddy (D) by his L.Rs. & others. Sambhaji Hindurao Deshmukh and others v. State of Maharashtra, : (2009)10 SCC 206 titled Arulvelu and another v. State, : (2009) 16 SCC 98 Perla Somasekhara Reddy and others v. State of A.P. and : (2010) 2 SCC 445 titled Ram Singh Alias Chhaju v. State Of Himachal Pradesh..)

    13. In view of above stated facts, we affirm the judgment passed by learned trial Court and dismiss the appeal filed by State. We hold that learned trial Court did not commit any miscarriage of justice and it is further held that learned trial Court has properly appreciated oral as well as documentary evidence placed on record. Contraband will be forfeited in favour of State of H.P. in accordance with law after the expiry of limitation for filing further proceedings. Appeal stands disposed of. File of learned trial Court along with certified copy of this judgment be sent back forthwith. All pending miscellaneous application(s) if any also stands disposed of.

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    State Of H.P. v. Atul Sharma
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