Full Judgment Text
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CASE NO.:
Appeal (crl.) 53 of 2003
PETITIONER:
Smt. Krishna Kanwar @ Thakuraeen
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 27/01/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
[With Crl. A. No. 52/2003]
ARIJIT PASAYAT,J.
Originally three appeals were filed against the common
judgment of the Rajasthan High Court, Jodhpur, whereby three
appeals were disposed of. During the pendency of Criminal
Appeal no. 51/2003, the appellant Shamshuddin died and by
order dated 20.1.2004 the appeal has been dismissed having
abated. The consideration, therefore, is restricted to other
two appeals i.e. Criminal Appeal nos. 52/2003 and 53/2003.
Of the two appeals one has been filed by convict-
accused Smt. Krishna Kanwar i.e. Crl. Appeal No.53 of 2003
and the other appeal has been filed by the State of
Rajasthan (Crl. Appeal No. 52 of 2003) questioning the
acquittal of accused Mangi Lal and Nathu Singh, as directed
by the Trial Court and upheld by the High Court. Initially,
seven persons were treated to be accused persons. Four of
them, namely, Shamshuddin, Smt. Krishan Kanwar, Mangi Lal
and Nathu Singh were tried by District and Sessions Judge,
Pratapgarh, who found accused Shamshuddin and Smt. Krishna
Kanwar guilty of offences punishable under Sections 8 and 21
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(in short ’the Act’) and sentenced each to undergo rigorous
imprisonment for 14 years and to pay a fine of Rs.2 lakh
with default stipulation. Nathu Singh and Mangi Lal (A-6 and
A-7) respectively, were acquitted.
Prosecution case as unfolded during trial is as
follows:
Prassan Kumar Khamesara (PW-16), Dy. S.P. Chhoti Sadri
received information at about 8.30 p.m. on 5.7.1994 to the
effect that on 6.7.1994 between 5.00 a.m. to 9.00 a.m., one
Shamshuddin S/o Shakoor Khan, resident of Dharakhedi, shall
be coming on a Rajdoot motorcycle, from Chittorgarh side and
will be proceeding towards Udaipur, alongwith contraband
heroin.
The above information was not only recorded but also
forwarded to S.P., Chittorgarh and Addl. S.P., Pratapgarh
through Indermal (PW-9). Upon above information, Shiv Prasad
(PW-14), Addl. S.P., Pratapgarh alongwith lady constable
Smt. Vimla Chaudhary (PW-5) and other members of staff
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reached Police Station, Chhoti Sadri on 6.7.1994 in the
morning at about 4.00 a.m. Rajeev Dasot, S.P. Chittorgarh
reached at Ghomana Choraya in the morning of 6.7.1994, where
Datar Singh SHO (PW-11) alongwith other staff of his Police
Station were present. After discussing the matter with S.P.
and Addl. S.P., Dy. S.P. Prassan Kumar Khamesara (PW-16)
staged a nakabandi at Ghomana Choraya, in which Yudhishtar
Singh (PW-8) and Wardichand (PW-13), independent attesting
witnesses were also associated.
At about half past six in the morning, one motorcycle
came from Pratapgarh side, which was apprehended by the
police party. The person who was driving the motorcycle,
disclosed his name as Shamshuddin and pillon rider disclosed
her name to be Smt. Krishna Kanwar. Both the persons were
apprised of the secret information that they were carrying
contraband heroin and, therefore, their search is to be
conduced and, if they desire, same can be undertaken in the
presence of a Magistrate or a Gazetted Officer. Written
notices (Exb.P-9 and P-10 respectively) were given to them
whereupon both of them wanted to be searched by Dy. S.P.
Prassan Kumar Khamesara (PW-16) himself.
Thereafter their personal search was conducted in the
presence of not only police personnel but also in the
presence of attesting witnesses Yudhisthar (PW-8) and
Wardichand (PW-13). A plastic bag was found tied on the
stomach and waist of Shamshuddin in which 2 Kgs. heroin was
kept. Similarly, from the personal search of Smt. Krishna
Kanwar, 600 gms. heroin was recovered. They were not having
any license to carry the above contraband; therefore, same
was seized and two samples of 30 gms. from each lot were
drawn and sealed separately. The remaining mal-mudda was
also sealed separately. Seizure memo, (Exb.P-3) was prepared
simultaneously, on which thumb impression of not only both
the accused persons but signatures & thumb impression of
both the attesting witnesses and police party were taken,
and seal impression was placed on the memo. The sealed
articles were deposited in Malkhana.
Upon interrogation, Shamshuddin gave a disclosure
statement (Exb.P-33) and regarding Rs.33,000/- which he
earned by selling heroin and other household articles
purchased from such earning. Thereafter, Shamshuddin took
the police party to his house in village Batalganj (U.P.)
and in the presence of Kanhaiya Lal and Magni Ram, attesting
witnesses, Rs.33,000/-, an FDR of Rs.20,000/- dated 30th
May, 1994 issued by SBBJ Branch, Chetak Circle, Udaipur were
recovered. Other household articles and jewellery were also
recovered vide Exb.P-5.
Shamshuddin also disclosed that the contraband heroin
so seized from both the accused was purchased from Mangi Lal
and Nathu Singh. This led to arrest of both of these
persons, and upon their disclosure statement, their houses
were also searched on 6.7.1994 from 4.00 p.m. to 6.00 p.m.
27 gms. heroin was recovered from the house of Mangi Lal
whereas 225 gms. heroin was recovered from house of Nathu
Singh. Seizure memos Exb.P-1 and P-2 respectively were
prepared. Rupees 41,980/- were recovered from the house of
Nathu Singh. Other necessary memos were prepared.
After completion of investigation, charge sheet was
placed. Accused persons pleaded innocence and in order to
substantiate their plea examined seven witnesses. The Trial
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Court found two of the accused persons guilty, but acquitted
Mangi Lal and Nathu Singh as noted above. Convicted accused
persons preferred appeals before the High Court. State also
filed an appeal questioning the acquittal. Before the High
Court it was submitted that no independent witness was
examined and in addition there was non-compliance of
mandatory provision contained in Sections 42, 50 and 57 of
the Act. The High Court did not find any substance and
upheld the conviction and the sentence. The appeal filed by
the State of Rajasthan questioning acquittal of Nathu Singh
and Mangi Lal was also dismissed holding that there was no
infirmity in the conclusions of the Trial Court.
In support of the appeal filed by Smt. Krishan Kanwar,
learned counsel for the appellant submitted that this is a
case where the prosecution has not tendered evidence of any
independent witness. Only official witnesses have been
examined. The independent witnesses who were examined did
not support the prosecution version and, in fact, stated
that they only put signatures on blank papers; the arrest of
the accused persons was done on 4.7.1994 and not on 6.7.1994
as claimed. There are certain suspicious circumstances
which corrode prosecution version, about safe dispatch of
the alleged collected samples. Though the case of the
prosecution was that alleged contraband articles were
procured by the accused Shamshuddin and Smt. Krishan Kanwar
from Mangi Lal and Nathu Singh, they have been acquitted,
and therefore, the source of procurement as allegedly done
by the accused has not been established. The quantity
recovered from Smt. Krishan Kanwar cannot be said to be huge
quantity, as observed by the Trial Court and the High Court.
It was a fairly small quantity. The evidence regarding
alleged search of accused-appellant Smt. Krishan Kanwar by
lady constable (PW-5) is also full of contradictions. No
reliance should be placed on her evidence. It was a fairly
small quantity. Residually it was submitted that the
sentence of 14 years and fine of Rs.2 lakhs is extremely
high.
Per contra, learned counsel for the State supported the
judgment and conviction and submitted that three high
placed officials were involved in the process of search and
seizure. There is no reason as to why they would falsely
implicate the accused persons. PW-16 monitored the entire
operation in the presence of Addl. S.P. Pratapgarh (PW-14).
The S.P. was also present though he has not been examined as
witness. The moment the information was received, there was
communication to the higher authorities, and therefore,
there is no violation of Section 42 as alleged. The
requirements of Section 50 were complied with by intimating
the accused of his option and choice and the existence of
his right of being search by the police officer (PW-16) or
by a gazetted officer. The accused opted to be searched by
the police officer. So, there is no violation as alleged.
So far as samples are concerned, the forensic laboratory
report clearly indicates that the samples were received
sealed and tags, seals were in tact and on analysis found to
be heroin.
It is seen that Exb.P-32 contains the secret
information that was received by the Dy. S.P. (PW-16).
Constable Indermal (PW-9) had categorically stated that he
had taken the intimation to the S.P. and the Addl. S.P. The
envelope was handed over to the S.P. at 9.00 p.m. and at
11.00 p.m. to the S.P. Pratapgarh and Chhoti Sadri. On the
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same day, at about 4.00 a.m. he returned to the police
station. The Addl. S.P. has been examined as PW-14 and also
presence of S.P. has been deposed by the witnesses. This
clearly goes to show that there was receipt of information
dispatched by Dy. S.P. PW-16. That being so, merely because
particulars of the dispatch number were not stated that
would not corrode credibility of the evidence of the
witnesses examined to establish that the information was
conveyed to the higher officials.
The requirements vis-‘-vis Sections 42 and 50 have been
dealt with in many cases, more particularly by a
Constitution Bench in State of Punjab v. Baldev Singh
(1999 (6) SCC 172). In para 17 the conclusions in an earlier
judgment State of Punjab v. Balbir Singh (1994 (3) SCC 299
at para 25) were quoted and approved. We are concerned with
conclusions (2-C) and (3) which read as follows:
"(2-C) Under Section 42(1) the empowered
officer if has a prior information given by
any persons, that should necessarily be
taken down in writing. But if he has reason
to believe from personal knowledge that
offences under Chapter IV have been
committed or materials which may furnish
evidence of commission of such offences are
concealed in any building etc. he may carry
out the arrest or search without a warrant
between sunrise and sunset and this
provision does not mandate that he should
record his reasons of belief. But under the
proviso to Section 42(1) if such officer has
to carry out such search between sunset and
sunrise, he must record the grounds of his
belief.
(3) Under Section 42(2) such empowered
officer who takes down any information in
writing or records the grounds under proviso
to Section 42(1) should forthwith send a
copy thereof to his immediate official
superior. If there is total non-compliance
of this provision the same affects the
prosecutions case. To that extent it is
mandatory. But if there is delay whether it
was undue or whether the same has been
explained or not, will be a question of fact
in each case."
Section 42 deals with power of entry, search, seizure
and arrest without of authorization. The provision reads as
follows:
"42. Power of entry, search, seizure
and arrest without warrant or authorisation.
- (1) Any such officer (being an officer
superior in rank to a peon, sepoy or
constable) of the Departments of Central
Excise, Narcotics, Customs, Revenue
Intelligence or any other department of the
Central Government or of the Border Security
Force as is empowered in this behalf by
general or special order by the Central
Government, or any such officer (being an
officer superior in rank to a peon, sepoy or
constable) of the Revenue, Drugs Control,
Excise, Police or any other department of a
State Government as is empowered in this
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behalf by general or special order of the
State Government, if he has reason to
believe from personal knowledge or
information given by any person and taken
down in writing, that any narcotic drug, or
psychotropic substance, in respect of which
an offence punishable under Chapter IV has
been committed or any document or other
article which may furnish evidence of the
commission of such offence is kept or
concealed in any building, conveyance or
enclosed place, may, between sunrise and
sunset, -
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any
door and remove any obstacle to such entry;
(c) such drug or substance and all materials
used in the manufacture thereof and any
other article and any animal or conveyance
which he has reason to believe to be liable
to confiscation under this Act and any
document or other article which he has
reason to believe may furnish evidence of
the commission of any offence punishable
under Chapter IV relating to such drug or
substance; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has reason
to believe to have committed any offence
punishable under Chapter IV relating to such
drug or substance :
Provided that if such officer has reason to
believe that a search warrant or
authorisation cannot be obtained without
affording opportunity for the concealment of
evidence or facility for the escape of an
offender, he may enter and search such
building, conveyance or enclosed place at
any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any
information in writing under sub-section (1)
or records grounds for his belief under the
proviso thereto, he shall forthwith send a
copy thereof to his immediate official
superior."
Section 42 enables certain officers duly empowered in
this behalf by the Central or State Government, as the case
may be, to enter into and search any building, conveyance
or enclosed place for the purpose mentioned therein without
any warrant or authorization. Section 42 deal with
"building, conveyance or enclosed place" whereas Section
43 deals with power of seizure and arrest in public place.
Under sub-section (1) of Section 42 the method to be
adopted and the procedure to be followed have been laid
down. If the concerned officer has reason to believe from
personal knowledge, or information given by any person and
has taken down in writing, that any narcotic drugs or
substance in respect of which an offence punishable under
Chapter IV of the Act has been committed or any other
articles which may furnish evidence of the commission of
such offence is kept or concealed in any "building or
conveyance or enclosed place" he may between sunrise and
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sunset, do the acts enumerated in clauses (a), (b), (c) and
(d) of sub-section (1).
The proviso came into operation if such officer has
reason to believe that search warrant or authorization
cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escaped
offender, he may enter and search such building, conveyance
or enclosed place any time between sunrise and sunset after
recording grounds of his belief. Section 42 comprises of
two components. One relates to the basis of information
i.e. (i) from personal knowledge (ii) information given by
person and taken down in writing. The second is that the
information must relate to commission of offence punishable
under Chapter IV and/or keeping or concealment of document
or article in any building, conveyance or enclosed place
which may furnish evidence of commission of such offence.
Unless both the components exist Section 42 has no
application. Sub-section (2) mandates as was noted in
Baldev Singh’s case (supra) that where an officer takes
down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto,
he shall forthwith send a copy thereof to his immediate
official superior. Therefore, sub-section (2) only comes
into operation where the officer concerned does the
enumerated acts, in case any offence under Chapter IV has
been committed or documents etc. are concealed in any
building, conveyance or enclosed place. Therefore, the
commission of the act or concealment of document etc. must
be in any building, conveyance or enclosed place.
The Trial Court and the High Court after analyzing the
evidence have come to hold that there was compliance of
Section 42(2) in the sense that requisite documents were
sent to the superior officer. Though learned counsel for
the appellant tried to submit that there was no definite
evidence about sending copies of the requisite documents to
the superior officers, yet in view of the analysis of
evidence done by the trial Court and also by the High
Court, with which no infirmity of any kind could be
substantiated effectively, we do not find any substance in
the plea that there was violation of Section 42(2).
So far as the alleged non-compliance of Section 50 is
concerned, the said provision reads as follows:
"50. Conditions under which search of
persons shall be conducted. -
(1) When any officer duly authorised under
Section 42 is about to search any person
under the provisions of Section 41, Section
42 or Section 43, he shall, if such person
so requires, take such person without
unnecessary delay to the nearest gazetted
officer of any of the departments mentioned
in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer
may detain the person until he can bring him
before the gazetted officer or the
Magistrate referred to in sub-section (1).
(3) The gazetted officer or the Magistrate
before whom any such person is brought
shall, if he sees no reasonable ground for
search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone
excepting a female."
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A bare reading of Section 50 shows that it only applies
in case of personal search of a person. It does not extend
to search of a vehicle or a container or a bag, or premises.
(See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999
(8) SC 293), Baldev Singh’s case (supra), Gurbax Singh v.
State of Haryana (2001(3) SCC 28). The language of Section
50 is implicitly clear that the search has to be in relation
to a person as contrasted to search of premises, vehicles or
articles. This position was settled beyond doubt by the
Constitution Bench in Baldev Singh’s case (supra).
In order to appreciate rival submissions, some of the
observations made by the Constitution Bench in Baldev
Singh’s case (supra) are required to be noted. It is also to
be noted that the Court did not in the abstract decide
whether Section 50 was directory or mandatory in nature. It
was held that the provisions to the Act implicitly make it
imperative and obligatory and cast a duty on the
investigating officer (empowered officer) to ensure that
search of the person (suspect) concerned is conducted in the
manner prescribed by Section 50 by intimating to the person
concerned about the existence of his right that if he so
requires, he shall be searched before a Gazetted Officer or
a Magistrate and in case he so opts, failure to conduct his
search before a Gazetted Officer or a Magistrate would cause
prejudice to the accused and render the recovery of the
illicit articles suspect and vitiate the conviction and
sentence of the accused. Where the conviction has been
recorded only on the basis of the possession of the illicit
article, recovered during a search conducted in violation of
the provisions of Section 50 of the Act, it was illegal. It
was further held that the omission may not vitiate the trial
as such, but because of the inherent prejudice which would
be caused to an accused by the omission to be informed of
the existence of his right, it would render his conviction
and sentence unsustainable. In paragraph 32 of the
judgment (at page 200) this position was highlighted. In
para 57, inter alia, the following conclusions were arrived
at:
"(1) That when an empowered officer or
a duly authorized officer acting on prior
information is about to search a person, it
is imperative for him to inform the person
concerned of his right under sub-section (1)
of Section 50 of the Act of being taken to
the nearest gazetted officer or nearest
Magistrate for making the search. However,
such information may not necessarily be in
writing.
(2) That failure to inform the person
concerned about the existence of his right
to be searched before a gazetted officer or
a Magistrate would cause prejudice to an
accused.
(3) That a search made by an empowered
officer, on prior information, without
informing the person of his right that if he
so requires, he shall be taken before a
gazetted officer or a Magistrate for search
and in case he so opts, failure to conduct
his search before a gazetted officer or a
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Magistrate, may not vitiate the trial but
would render the recovery of the illicit
article suspect and vitiate the conviction
and sentence of an accused, where the
conviction has been recorded only on the
basis of the possession of the illicit
article, recovered from his person, during a
search conducted in violation of the
provisions of Section 50 of the Act.
(5) That whether or not the safeguards
provided in Section 50 have been duly
observed would have to be determined by the
court on the basis of the evidence led at
the trial. Finding on that issue, one way or
the other would be relevant for recording an
order of conviction or acquittal. Without
giving an opportunity to the prosecution to
establish, at the trial, that the provisions
of Section 50 and, particularly, the
safeguards provided therein were duly
complied with, it would not be permissible
to cut short a criminal trial.
(6) That in the context in which the
protection has been incorporated in Section
50 for the benefit of the person intended to
be searched, we do not express any opinion
whether the provisions of Section 50 are
mandatory or directory, but hold that
failure to inform the person concerned of
his right as emanating from sub-section (1)
of Section 50 and render the recovery of the
contraband suspect and the conviction and
sentence of an accused bad and unsustainable
in law.
(7) That an illicit article seized from
the person of an accused during search
conducted in violation of the safeguards
provided in Section 50 of the Act cannot be
used as evidence of proof of unlawful
possession of the contraband on the accused
though any other material recovered during
that search may be relied upon by the
prosecution, in other proceedings, against
an accused, notwithstanding the recovery of
that material during an illegal search."
It is not disputed that there is no specific form
prescribed or intended for conveying the information
required to be given under Section 50. What is necessary is
that the accused (suspect) should be made aware of the
existence of his right to be searched in presence of one of
the officers named in the Section itself. Since no specific
mode or manner is prescribed or intended, the Court has to
see the substance and not the form of intimation. Whether
the requirements of Section 50 have been met is a question
which is to be decided on the facts of each case and there
cannot be any sweeping generalization and/or strait-jacket
formula.
Section 50 does not involve any self-incrimination. It
is only a procedure required to protect the rights of an
accused (suspect) being made aware of the existence of his
right to be searched if so required by him before any of the
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specified officers. The object seems to be to ensure that at
a later stage the accused (suspect) does not take a plea
that the articles were planted on him or that those were not
recovered from him. To put it differently, fair play and
transparency in the process of search has been given the
primacy. In Raghbir Singh v. State of Haryana (1996 (2) SCC
201), the true essence of Section 50 was highlighted in the
following manner:
"8. The very question that is referred to
us came to be considered by a Bench of two
learned Judges on 22.1.1996 in Manohar Lal v.
State of Rajasthan (Crl.M.P.No.138/96 in
SLP(Crl.)No.184/1996). One of us (Verma, J),
speaking for the Bench, held:
"It is clear from Section 50
of the NDPS Act that the option
given thereby to the accused is
only to choose whether he would
like to be searched by the
officer making the search or in
the presence of the nearest
available Gazetted Officer or the
nearest available Magistrate. The
choice of the nearest Gazetted
Officer or the nearest Magistrate
has to be exercised by the
officer making the search and not
by the accused".
9. We concur with the view taken in
Manohar Lal’s case supra.
10. Finding a person to be in possession of
articles which are illicit under the
provisions of the Act has the consequence of
requiring him to prove that he was not in
contravention of its provisions and it
renders him liable to severe punishment. It
is, therefore, that the Act affords the
person to be searched a safeguard. He may
require the search to be conducted in the
presence of a senior officer. The senior
officer may be a Gazetted Officer or a
Magistrate, depending upon who is
conveniently available.
11. The option under Section 50 of the Act,
as it plainly reads, is only of being
searched in the presence of such senior
officer. There is no further option of being
searched in the presence of either a
Gazetted Officer or of being searched in the
presence of a Magistrate. The use of the
word ’nearest’ in Section 50 is relevant.
The search has to be conducted at the
earliest and, once the person to be searched
opts to be searched in the presence of such
senior officer, it is for the police officer
who is to conduct the search to conduct it
in the presence of whoever is the most
conveniently available, Gazetted Officer or
Magistrate".
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As has been highlighted in Baldev Singh’s case (supra)
it has to be seen and gauzed whether the requirements of
Section 50 have been met. Section 50 in reality provides for
additional safeguards which are not specifically provided by
the statute. The stress is on the adoption of a reasonable,
fair and just procedure. No specific words are necessary to
be used to convey existence of the right.
The above position was elaborately dealt with in Prabha
Shankar Dubey v. State of Madhya Pradesh (2003 AIR SCW
6592).
A similar question was also examined in Madan Lal and
Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382).
The quantity recovered by no stretch of imagination is
small. Further, nothing could be shown as to how there was
violation of Section 57 of the Act. The safe custody of
seized articles and samples has been established by cogent
evidence. Forensic Laboratory report shows that the samples
were received in sealed conditions with seals and tags in
tact. That being so, there is no infraction as alleged.
When the factual position is tested on the legal
principles indicated above, the inevitable conclusion is
that the prosecution has established its case beyond a
shadow of doubt and the conviction and sentence imposed are
well merited. The appeal filed by the accused Smt. Krishna
Kanwar stands dismissed.
Coming to the appeal filed by the State of Rajasthan,
questioning acquittal of Nathu Singh and Mangi Lal, we find
that the Trial Court and the High Court found lack of
material to connect them with the crime. The Trial Court
categorically observed that the requirements of Section
42(1) and 42(2) were not complied with. The houses of these
accused were straightaway searched. Even there was no
compliance with the requirements of Sections 50 though
there was personal search involved. It was submitted by
learned counsel for the State that on the basis of
information given by the co-accused, recovery was made and,
therefore, Section 27 of the Indian Evidence Act, 1872 was
applicable. The so-called disclosure is allegedly made by
accused Shamshuddin and Smt. Krishan Kanwar. Here again the
Courts below have found evidence to be inadequate.
In view of the infirmities noticed by the Trial Court
and the High Court, they were justified in directing
acquittal of Nathu Singh and Mangi Lal. The said appeal is
sans merit and stands dismissed.
Both Criminal Appeal Nos. 52 and 53 of 2003 are
accordingly dismissed.