1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 18.1.1994 passed by the learned Sessions Judge, Rajkot, in Criminal Case No.221 of 1993, whereby the accused has been acquitted from the charges leveled against him. 3. The brief facts of the prosecution case are as under:
3.1 On 27.4.1987, when the police persons were on patrolling, at abut 6:30 hrs., they caught the accused with opium poppies of 2600 grams. As per the complainant, there was no pass or permit about the said opium and thereby the accused committed offence punishable under Section 66 (a) of the Bombay Prohibition Act and Section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, chargesheet was filed against him before the court of learned Magistrate. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No.221 of 1993. The trial was initiated against the respondent accused.
3.2 To prove the case against the present accused, the prosecution has examined, in all 4 witnesses and also produced several documentary evidence.
3.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 18.1.1994 .
4. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the present appeal.
5. It is submitted by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence. Learned APP further submitted that in the presence of the police, the accused was searched and found poppies of opium from the possession of the accused. The mandatory provisions were not followed by the investigating officer. As per her submission, considering the evidence on record, the learned trial Judge ought to have convicted the accused considering the fact that opium which was recovered from the possession of the accused. The panchas turned hostile, but learned Sessions Judge ought to have accepted their evidence considering the fact that the illegal article like opium, which is not permissible, was found from the possession of the accused. No notification was produced by the prosecution to prove the case against the accused. Even the huge quantity of opium was recovered from the accused and that aspect was not considered by the learned Sessions Judge while passing order of acquittal. She submitted that present Appeal is required to be allowed by quashing and setting aside the order passed by the trial Court.
6. Learned advocate Mr. Kureshi for the respondent submitted that the learned Sessions Judge has rightly passed the order of acquittal and therefore, no interference is required to be called for from this Court.
7. I have perused the record and considered the submissions made by the parties. The witnesses were examined by the trial Court, turned hostile during the course of trial. Investigating Officer did not follow the mandatory provisions of the Act and there was no independent witness was examined by the complainant. Learned trial Judge has rightly observed that when the mandatory provisions are not followed by the concerned officer, the evidence of witness cannot be considered as believable. Therefore, learned trial Judge rightly appreciated the evidence on record and rightly acquitted the accused.
8. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellantState. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
9. Learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
10. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
11. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
12. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
(Z.K. SAIYED, J.) ynvyas