(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 State of Gujarat, by way of this Appeal, has challenged the judgment and order dated 18.12.1991, passed by learned Additional Sessions Judge, Junagadh, in Sessions Case No.136 of 1990, by which the respondent-accused was acquitted from the charges levelled against him under Sections 20 and 27 of the Narcotics Drugs and Psychotropic Substances Act, 1985.
2 The brief facts of the prosecution case as under:
That a complaint was lodged by one S.H.Kathi, PSI, Sutrapad Police Station, against the accused alleging that pursuant to the prior information of accused cultivating ganja plants in his farm, after preparing preliminary panchnama, visited the field of the accused where it was found that the accused was cultivating ganja plants and there were about 30 such plants cultivated by him. After following the procedure prescribed under the NDPS Act, the offence was registered against the respondent under Sections 20 of the NDSPS Act and Section 66(1) of the Bombay Police Act. Pursuant to the complaint, the Police Officer started investigation and after having found sufficient material against the accused, filed a charge sheet in the court of learned Judicial Magistrate, Veraval, who in turn committed the case in the Court of Sessions at Junagadh for trial. The charge, which was framed against the respondent-accused at Exhibit-1, was denied by the accused and, therefore,the learned Trial Judge proceeded with the trial. The learned Trial Judge after examining the depositions of about six witnesses as well as several documentary evidence, found that the accused was not guilty of the offence and acquitted from the charges levelled against him.
3 In the present appeal, though, the notice of admission is served on the respondent-accused, he has not remained present himself or through his Lawyer. However, with the help of learned Additional Public Prosecutor Mr. L.B. Dabhi, we have decided the matter on merits after examining the record and proceedings as well as after perusing the depositions of several witnesses and documentary evidence on record.
4 The learned APP Mr.L.B. Dabhi, appearing for the appellant-State, has assailed the judgment of the Trial Court mainly on the ground that the prosecution has established its case in toto and, therefore, the learned Trial Court ought not to have acquitted the accused person from the charges levelled against him. He has submitted that the police authorities have followed the procedure prescribed under the NDPS Act and the Rules and, therefore, there were no reason for the Trial Court to acquit the respondent.
5 Now considering the reasoning part of the judgment for acquitting the accused, we find that the main reason for acquitting the accused person by the Trial Court is with regard to the place of collecting and weighing the contraband, which is contrary to the depositions of the witnesses and documents like chit which is attached with the bag in which it was collected. As per the panch witness No.1 Vitthal Arjan, Exhibit-5 that when he visited the place where the accused cultivated the ganja, some leaves were collected from the plants and the same were packed. The leaves which were collected from the field were brought to the police station and thereafter the same were weighed by the police authority at the police station. Contrary to this deposition,if the chit at Muddamal Item No.2 is seen,it appears that the weight of contraband article is mentioned on the chit. Witness PW-1 Vitthal Arjan, has stated that he had not put his signature on the slip at the place where the contraband was found. The chit i.e. muddamal Article No.2 reads as under:
" Today, in the presence of two panchas when the raid was carried out at the field of accused-Punja Bhagwanbhai Barad, 30 plants, having weight of 55 kgs of ganja, worth of Rs. 27,500/-, was collected and out of the same, 100 grams ganja leaves were collected for chemical analysis."
We find the signatures are put by two panchas on this Muddamal Article No.2."
6 As observed by the learned Trial Judge in paragraph-13 of the judgment, the learned Judge was right in observing that when the sealing was carried out at the place of incident, nobody was aware about the weight of the contraband. As stated by the panchas, the contraband was weighed at the Police Station. The learned Trial Judge was right in observing that while collecting 100 grams of ganja leaves which was sent for chemical analysis, the procedure adopted by the police authorities creates doubt in the mind. The learned Trial Judge was right in observing that the complainant - S.H. Kathi, who has been examined as PW-6 at Exhibit-18, has stated that from each plant he had collected ganja leaves, which was weighed of 100 grams for chemical analysis. It is abundantly clear that the police authorities had collected 100 grams of ganja leaves at the place from which the contraband was collected. In absence of any weighing machine, it was not possible for the police authority to weigh the contraband in an accurate manner, which creates doubt about the procedure of collecting and weighing the contraband which the prosecution tried to establish before the court and, therefore, the Trial Court has rightly acquitted the accused person.
It is well settled principle of law that the appellate court shall be reluctant to interfere with such judgment of acquittal unless the court found it contrary to evidence or palpably erroneous or the view which has been taken by the Trial Court, could not have been taken by the court of competent jurisdiction while dealing with the appeal against acquittal, the court keeps in view the position that the presumption of innocence in favour of the accused, has been fortified for its acquittal. The golden rule is that the court is obliged and may not abjure its duty to prevent miscarriage of justice where interference is imperative and the ends of justice was required and it is essential to appease the judicial conscience.
8 Considering the overall aspects, we are of the opinion that the learned Trial Court has not committed any error in acquitting the respondent-accused from the charges levelled against him. We are in agreement with the reasonings given by the Trial Court and confirm the acquittal of the respondent. Hence, the appeal stands dismissed accordingly.
(A.L.
DAVE, J.) (A.J.
DESAI, J.) pnnair Top