[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 31.05.1994 passed by the learned Additional Sessions Judge, Rajkot District, in Sessions Case No. 106 of 1992, whereby the learned Additional Sessions Judge has acquitted the respondent – accused from the charges levelled against him.
[2] The brief facts of the present case are that the complainant Shri K. J. Gohil, In-charge, Police Sub Inspector, “B” Division Police Station, Rajkot lodged a complaint on 6.8.1992 to the effect that he was on duty in “B” Division Police Station on 6.8.1992, in the meanwhile he received information that one Paltan Raghuvir Bhaiya who was residing in Street No.39 Kodiyarpara, Kanjibhai's Mafatiapara, Nr. Aji Vasahat at Rajkot was having illegal possession of opium in a big quantity. Thereafter, they were also searched by the police, but nothing objectionable was found. A preliminary panchnama to this effect was prepared from 12.00 hours to 12.30 hours. Thereafter, all the police personnel as well as two panchas reached where the accused was residing. When police party along with panchas reached near the place of incident, the accused was sitting on the coach and, therefore, he was surrounded by the police. When his name was asked, the accused stated that his name was Paltan Raghuvar. Police Inspector offered his identification to the respondent and further informed the respondent that they had information that the respondent was illegally possessing of opium and, therefore, the accused was required to be searched. The respondent was further informed by Police Inspector that if the respondent wished, he might be searched in presence of any other gazetted officer or Magistrate. The appellant did not choose his option to be searched in presence of any other gazetted officer. Thereafter, person of the accused was searched by Police Inspector and under the coach, old bag was found and in that bag, there were 6 small plastic bags. In presence of panchas, when the accused was inquired by respondent in respect of these 6 plastic bags, those bags contained opium and weighed the substance found. On weighing the substance, it was found that opium containing of 6 small bags were weighing about 2.840 gram, in all. The said quantity of opium, thereafter, was put in a box and the same was sealed. The respondent was arrested in the course of investigation. The progress of the investigation was intimated by I.O. to his superior officer. Thereafter, the investigation was taken over by Police Sub Inspector and he submitted charge-sheet against the accused for the offences punishable under Section 18 of the Narcotic Drugs Psychotropic Substances Act, 1985. Ultimately on receiving the charge-sheet, the said case was registered as Sessions Case No.106/1992 in the Court of Additional Sessions Judge at Rajkot.
[3] The charge against the accused came to be framed by the learned Additional Sessions Judge, Rajkot on 15.12.1992 vide Ex.1 for the offences punishable as aforesaid. The charge was denied by the accused and hence, the accused was tried by learned Additional Sessions Judge, Rajkot.
[4] To prove the case, the prosecution examined eight witnesses.
[5] In addition to this, the prosecution also produced documentary evidence like panchnama of seizure of opium from the accused at Ex.26, seized muddamal list Ex.28, True copy ofentry No.171 Ex.29, Report with complaint Ex.31, Receipt from F.S.L. Dated 7.8.1992 Ex.34, complaint dated 6.8.1992 Ex.36, Report by Incharge Police Inspector to P.S.O. Ex.37, Report to Deputy Police Commissioner dated 6.8.1992 Ex.39, True copy of proceedings Ex.40, Letter to FSL dated 6.8.1992 Ex.44, Report from F.S.L to P.S.I., Ex.45, Letter to FSL by P.S.I Ex.46.
[6] At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Magistrate has acquitted the accused of all the charges levelled against them by Judgment and order dated 31.06.1994 in Sessions Case No.106/1992.
[7] Having heard both the sides, learned Additional Sessions Judge, Rajkot, after considering the evidence on record, acquitted accused from the charges levelled against him and hence this appeal.
[8] This Court has undertaken a complete and comprehensive appreciation of all vital feature of the case and the entire evidence on record with reference to the broad and reasonable probabilities of the case and the contentions raised by learned APP for the appellant – State.
[9] Heard Ms.Jirga Jhaveri, learned APP for the appellant – State. Though served, nobody appears on behalf of the respondent – accused.
[10] Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant – State has preferred the present Appeal.
[11] Ms.Jirga Jhaveri, learned APP for the appellant – State has submitted that the prosecution has examined the witnesses, but the learned trial Judge has not believed the depositions of the witnesses. She has submitted that the learned trial Judge has not considered the panchnama at Ex.26 and chemical analysis report. She has submitted that the learned trial Judge has committed an error in considering that there was a breach of the provisions of sections 50, 57, and 42(1)(2) of the said Act. She has submitted that the opium was recovered from the possession of the accused during the search. She has submitted that the accused has committed an serious offence punishable under Section 18 of the Act and he requires to be convicted for the said offence. It has been contended by the learned APP that the Judgment and order of the trial Court is against the provisions of law; the trial Court 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 respondent. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[12] 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 trial Court 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.”
[13] 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.”
[14] 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.
[15] 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.
In para 16 of the said decision the Court has observed as under:
“16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.”
[16] 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.
[17] 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.”
[18] 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.
[19] 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 appellant. I have perused evidence, it is true that when the information received by the P.S.I and the same was not informed to his Superior Officer then it is true that offer regarding the search is concerned, it was given to the respondent, whether he wants to call gazette officer or Magistrate and whether he wants to search himself in presence of search officer, it means that the mandatory provision which is required to be followed by the prosecution, it is not valid. The learned Judge has observed in paragraph No.38 to 40 read as under :-
“38. It is also argued that there is a breach of provisions under sections 52, 55 and 57 of the Act. Of course, provision of section 52 and 57 of the N.D.P.S. Act are not mandatory but it is argued that the effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In the instant case, the prosecution has produced copy of report made to Deputy Police Commissioner by In-charge Police Inspector at Ex.39. However, it does not bear outward number. It does not bear endorsement regarding the receipt of the said documents by Deputy Police Commissioner. It does not bear a time when it was sent. Hence, it is argued that it is a got up one which cannot be relied upon.
39. It is argued by the learned advocate for the accused that when there is a contrary version by eye witnesses, it is hazardous to place reliance on such evidence. It is also argued that a person against whom several prosecutions are filed, such a person cannot be accepted as an independent or respectable person. So it is argued that the associating an independent witness from the public and their witnesses in the search is not a more formality and mandatory requirements are also not empty formality, but it should be complied strictly and if it is not done so, it is fatal to the prosecution case.
40. It is further argued by the learned advocate for the accused that there is a procedure adopted by the police officials under section 55 regarding sealing of samples is faulty and it is not a procedure provided with regard to under section 55 of the Act. It should be observed. Section 55 of the Act contemplated that samples so taken shall also be sealed with a seal of the officer in charge of the police station. Legislature never contemplated a general seal which could be in possession of any constable or any other officer of the police station and specifically wanted the seal of the officer in charge of the police station to be affixed. In the instant case, the provision has been violated, because if we see report of Laboratory at Ex.45 that there is no mention of a seal regarding police station officer. Therefore, it is argued that this benefit goes to the accused. The learned advocate for the accused relied upon a decision, reported in 1993 (3) All India Prevention of Food Adulteration Journal, page No.118. It is held that :-
“Narcotic Drug and Psychotropic Substances Act, 1985 – Section 20(b)(ii) – Conviction for the offence punishable under – Appeal – Prosecution failed to prove that what was found on the person of the accused was the very substance which was sent for analyzing identity of the sample searched and the sanctity of the sealing has not been preserved – Causal and unsatisfactory manner in which the samples of charas were sealed – Accused entitled to benefit of doubt – Judgment and order of conviction liable to be set aside.”
In view of the aforesaid facts and evidence recorded in the case, there is no breach of the provisions of section 50 of the N.D.P.S Act or breach of provision of section 57 of the N.D.P.S. Act is not fatal to the prosecution case. But there is a breach of mandatory provisions under Sec.42(1), 42(2) of the N.D.P.S. Act and the benefit goes to the accused. Moreover, there are material contradictions in the evidence and the persons who joined as independent witnesses are under the influence of police and, therefore, it cannot be said that these are independent witnesses and relying upon their testimony, conviction cannot be made. Moreover, there are material contradictions in the evidence of the police officials. So their alone testimony also cannot be accepted. There is a faulty procedure adopted by the Investigating Officer in connection with the sealing samples and laboratory report is also silent on the point. So it is ambiguous and that benefit also goes to the accused.”
[20] The trial court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The trial Court 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 trial Court.
[21] 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.
[22] 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 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.
[23] In 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. 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.
[24] 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 requires to be dismissed.
[25] In view of above the Appeal is dismissed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.
[ Z. K. SAIYED, J. ] (vijay)