[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 26.09.1994 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.35 of 1992, whereby the learned Judge has acquitted the respondents – accused from the charges levelled against them.
[2] The brief facts of the case of prosecution are that on or about 06.08.1991, at about 9.35 p.m., the complainant along with other police personnel received the information to the effect that accused No.1 was illegally keeping “ganja” in his possession in his hotel namely Yogiraj Hotel and the accused No.1 and 2 both were selling that “ganja” without any pass or permit or licence. Therefore, the complainant along wit hteh staff and the panch witnesses carried out raid in the hotel and during search contraband article “ganja” worth 1 Kg. 700 Gram was found in plastic bag and three bottles of English liquor were found from the possession of accused No.1. The accused were caught red handed. Therefore, the complaint was lodged against the accused for the offence under Section 20(A)(1) of the Narcotic Drugs and Psychotropic Substances Act and under Sections 66(B), 65A, EE, 116 of the Bombay Police Act before the Visnagar Police Station, on 6.8.1991.
[3] Thereafter, completion of investigation, the charge-sheet was filed. Thereafter, the charge was framed against the respondents – accused. The respondents – accused pleaded not guilty to the charge and claimed to be tried.
[4] To prove the case against the accused, the prosecution has examined the witnesses and relied upon certain documents. At the end of trial, after recording the statements of the respondents – accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge vide the impugned Judgment and order, has acquitted the respondents – accused from the charges levelled against them.
[5] Being aggrieved and dissatisfied with the Judgment and order passed by the Additional Sessions Judge the appellant – State has preferred the present Appeal.
[6] I have heard learned A.P.P. on behalf of the appellant – State. I have also gone through the papers and also the Judgment and order of the Additional Sessions Judge. He has contended that the Investigating Officer has followed the procedure as prescribed under Sections 42 and 50 of the N.D.P.S. Act, but the learned Judge had wrongly considered that the mandatory provisions of the said Act is not followed. He has contended that the ingredients of Section 20(A) of the N.D.P.S. Act and Section 66B of the Bombay Prohibition Act is proved by the prosecution beyond reasonable doubt. He has contended that the learned Additional Sessions Judge has failed to appreciate that the accused were found in possession of ganja of 1.700 Kg without any permission of licence to keep the same. Similarly, the accused have also in possession of liquor without permission, thus, they have violated the breach of the Bombay Prohibition Act. He has contended that the prosecution has proved its case beyond reasonable doubt and the judgment and order of the Additional Sessions Judge is required to be quashed and set aside. It has been contended by the learned APP that the Judgment and order of the Additional Sessions Judge is against the provisions of law; the Additional Sessions Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[7] Learned advocate for the respondent has supported the judgment and order of the trial Court and contended that looking to the facts of the case the learned Judge has rightly not believed the case of the prosecution and, therefore, no interference may be called for. He has contended that the information received by the Investigating Officer is not conveyed to the Higher Superior Officer. He has contended that the respondents were never informed by Investigation Officer regarding search and raid. He has contended that there are material contradiction which are already proved from the oral version of the Investigating Officer. He has contended that the conduct of the complainant has created some doubt. He has therefore prayed that the present appeal deserves to be dismissed and the impugned judgment and order deserves to be confirmed.
[8] At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the Additional SessionsJudge have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
“54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.”
[9] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] 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.”
[10] Thus, it is a settled principle that while exercising appellate power, even 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.
[11] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[12] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write 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.”
[13] Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
[14] I have gone through the judgment and order passed by the Additional Sessions Judge. I have also perused the oral as well as documentary evidence led before the Additional Sessions Judge and also considered the submissions made by learned advocates for the respective parties. It appears that so far as the mandatory provisions prescribed in N.D.P.S. Act is concerned, the said provision is required to be followed by the Investigating Officer, but, looking to the facts of the present case, it clearly appears that the prosecution has not followed the provisions of sections 41 and 50 of the N.D.P.S. Act. I have also gone through the papers, it appears that the prosecution could not establish the of muddamal from the respondent. Therefore, I am of the opinion that the learned Additional Sessions Judge has rightly acquitted the respondents from the aforesaid charges. The learned Additional Sessions Judge has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The learned Additional Sessions Judge has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the Additional Sessions Judge.
[15] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[16] Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Additional Sessions Judge is vitiated by some manifest illegality or that the decision is perverse or that the Additional Sessions Judge has ignored the material evidence on record.
[17] In above view of the matter, I am of the considered opinion that the Additional Sessions Judge was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the Additional Sessions Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[18] 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 deserves to be dismissed.
[19] In view of above the Appeal is dismissed. The judgment and order of dated 26.09.1994 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.35 of 1992 acquitting the respondents – accused of the offences charged against them is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the Additional Sessions Judge.
[ Z. K. SAIYED, J. ] vijay