(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1.0 Present appeal u/s. 378 of the Code of Criminal Procedure, 1973 arises out of the judgment and order dated 28th August 1991 passed by the learned Additional City Civil Judge, Court No. 21, Ahmedabad (hereinafter referred to as 'the learned City Sessions Judge') in Sessions Case No. 322 of 1990, whereby, the learned City Sessions Judge was pleased to acquit the accused of the charges under Section 20(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for brevity) and Sections 66(b) and 65(a)(e) of the Bombay Prohibition Act.
2.0 Brief facts of the prosecution case are that on 25/09/1990 at about 19:20 hours, Police Inspector ('PI' for short) Shri Pirmohmadkhan Nathekhan Pathan received an information that one person named Farid was carrying on business of 'Charas' in the company of a person named Nasibkhan Sikandarkhan Pathan (the respondent herein – original accused), who was employed by Farid, near Shahpur Adda, a place situated in the limits of Shahpur Police Station. Hence, PI Shri Pathan, along with two Panchas raided the place called Shahpur Adda. He caught the respondent herein – original accused and found 71 grams of Charas from his possession, without any pass or permit. Accordingly, the accused was alleged to have committed the offence as above for which complaint had been lodged against him.
2.1 As the offence was triable by the City Sessions Court, the learned Chief Metropolitan Magistrate, Ahmedabad committed the case to the City Sessions Court, Ahmedabad. The accused was produced before the learned City Sessions Judge. The learned City Sessions Judge framed Charge against the accused and read over to him. The accused pleaded not guilty to the charge and consequently, he was tried by the learned City Sessions Judge.
2.2 To prove the guilt against the accused, the prosecution examined in all 07 witnesses. Besides, in order to prove the case, the prosecution relied on several documentary evidence, which were also taken into consideration by the learned City Sessions Judge.
2.3 At the end of trial, statement of the accused u/s. 313 of the Code of Criminal Procedure was recorded in which, the accused denied the whole case of the prosecution. After hearing the arguments on behalf of the prosecution and the defence, the learned City Sessions Judge acquitted the respondent – original accused of the charges levelled against him.
3.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned City Sessions Judge, the appellant State has preferred the present appeal.
4.0 We have heard learned Additional Public Prosecutor Mr. LR Pujari. The learned Additional Public Prosecutor submitted that the learned trial Judge has erred in appreciating the oral as well as documentary evidence adduced by the prosecution and thereby, acquitted the accused. The learned Additional Public Prosecutor submitted that the learned trial Judge has erred in taking into consideration the place where the complainant PI Shri Pathan and the Panch Witness – Gyasuddin were standing at the time of raid and also has erred in taking into consideration the complaint filed by PI Shri Pathan and the fact of he investigating the case of robbery against the accused and that, there were strained relations between the complainant and the accused. He further submitted that the learned trial Judge has failed to appreciate that the accused was found in possession of Charas, which is prohibited under the provisions of the NDPS Act and the Bombay Prohibition Act and learned trial Judge has not properly considered the application of Section 54 of NDPS Act. Last but not the least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned City Sessions Judge is erroneous, contrary to law and evidence on record and is required to be quashed and set aside.
4.1 On the other hand, learned advocate for the respondent – original accused submitted that the learned Judge has rightly appreciated the evidence on record and the reasons recorded for acquitting the respondent – original accused of the offence charged against him, are plausible and cogent. He submitted that there are glaring contradictions in the depositions of the prosecution witnesses, which go to the root of the matter. It is further argued that this being an appeal against an order of acquittal, the judgment and order rendered by the trial Court deserves to be upheld as proper because plausible reasons for acquittal have been recorded. The learned advocate, therefore, prayed that the appeal be dismissed.
5.0 We have carefully considered the submissions made by the learned Additional Public Prosecutor as well as by the learned advocate for the respondents original accused in light of the oral as well as documentary evidence forthcoming on the record. We have also perused the judgment impugned in the present appeal. The learned City Sessions Judge has taken all pains and has dealt with all the aspects of the case on hand. We are in agreement with the discussion made by the learned trial Judge at length and we are also in agreement with the findings recorded by him vide his judgment and order referred above. Moreover, referring the deposition of the Prosecution Witness one Shri Gyasuddin Alimuddin, exh. 9 and the deposition of PI Shri Pirmohmadkhan Nathekhan, exh. 13 as well as the Panchnama carried out at the time of raid, exh. 10, it appears that nothing has been mentioned regarding the compliance of provisions of Section 50 of the NDPS Act. Referring the entire documentary evidence forthcoming on the record, it appears that there is no compliance of Section 50 by the Investigating Officer which, in our view, is violation of the mandatory provision laid down in the NDPS Act. On a specific query put to the learned Additional Public Prosecutor, he could not lay his hand on any document to show that the mandatory provision of Section 50 had been complied by the Investigating Officer or any other responsible member of the raiding party. On this aspect, learned advocate Mr. Baqui for the respondent – original accused drew our attention to a decision of the Honourable the Apex Court in the matter between Beckodan Abdul Rahiman Vs. State of Keral, reported in (2002) 4 SCC
229. Para 5, 6 and 7 of the same are relevant, the same are reproduced as under:
“In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of subsection (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW1) asking the accused "whether I should search him in the presence of senior officers or Gazetted officer". The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.
We are of the firm opinion that the provisions of subsection (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment.
Under the circumstances the appeal is allowed by setting aside the impugned judgment. The appellant is directed to set at liberty forthwith unless required in any other case.”
(emphasis supplied)
5.1 We have gone through the abovereferred decision. In our view, the ratio laid down therein is squarely applicable to the facts of the case on hand. Considering the entire documentary evidence as a whole, this Court is of the opinion that the evidence forthcoming on the record, is not sufficient, reliable, cogent, trustworthy and free from doubt to establish the prosecution case that the muddamal 'Charas' was found from the possession of the respondent herein – original accused, beyond any shadow of reasonable doubt and thus, we are of the considered view that the learned trial Judge has rightly appreciated the evidence on record and has rightly acquitted the accused of the offences charged against them as referred above and we find ourselves in agreement with the same.
6.0 It is well settled that in acquittal appeal, where there is a possibility of two views, the one favourable to the accused should be adopted. It is also well settled principle of law that the Appellate Court would be slow to interfere in an order of acquittal until and unless the judgment of the trial court is perverse or demonstrably unsustainable. In the present Appeal, we find that the reasons given by the learned trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the learned trial Court has committed any error in acquitting the accused.
6.1 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
6.2 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the detailed discussion of evidence is not necessary.
7.0 In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal fails and is dismissed. The judgment and order dated 28th August 1991 passed by the learned Additional City Sessions Judge, Court No. 21, Ahmedabad in Sessions Case No. 322 of 1990 is confirmed. Bailbond stands cancelled.
7.1 The office shall send back the Record & Proceeding to the trial Court forthwith, after following the due procedure.
[ Ravi R. Tripathi, J. ] [ G. B. Shah, J. ] hiren