Court No. - 20
Case :- GOVERNMENT APPEAL No. - 8385 of 2009 Appellant :- State Of U.P.
Respondent :- Akshay Kumar Counsel for Appellant :- Govt. Advocate
Hon'ble Ravindra Nath Kakkar,J.
Heard learned A.G.A. for State-appellant and perused the material placed on record.
The instant appeal has been preferred against the impugned judgment and order dated 12.05.2009 passed by Special Judge (E.C. Act), District Muzaffar Nagar, passed in Special Case No.77 of 2004 (State of U.P. Vs. Akshay Kumar), whereby the accused respondent was acquitted from the charges under Section 18/20 of N.D.P.S. Act.
Prosecution story, in brief, is that complainant Sub Inspector B.D. Yadav along with other police personnel after making entry in G.D. at about 10.25 hours proceeded from the police station for checking. While checking the vehicle and persons near Hanuman Mandir, situated at Gandhi Colony at about 14.00 hours a person was seen coming from the side of Panchera road. On suspicion the police party stopped him and asked him to take his search. Whereupon he confessed that he possessed 200 gms. charas and that he was going to sell the same. The complainant asked him to accompanying the police party so that he may be produced before a gazetted officer/Magistrate, but the aforesaid person admitted his guilt and given an undertaking that police party can take his search. During his search 200 gms. charas was recovered from his right pocket.
In this regard FIR had been lodged and after completion of the investigation charge sheet has been submitted against the accused respondent.
Prosecution in support of its case examined P.W.1 S.I. B.D. Yadav, P.W.2 Constable Clerk 31 Jagvir Singh, P.W. 3 Constable 456 Naseem Ahmad and P.W.4 S.I. S.L. Lawania.
Perusal of the impugned judgment and order reveals that learned trial court had acquitted the accused respondent on the ground that Sections 50, 52 55 and 57 of the NDPS Act have not been complied with; no independent witness has been produced to support the prosecution version; the prosecution has failed to prove its case beyond any reasonable doubt.
It is relevant to mention that in Gamini Bala Koteswara Rao Vs. State of Andhra Pradesh, AIR 2010 SC Page 589 the Hon'ble Apex Court has held that :-
"Only in a case when the judgement of the trial court is stated to be perverse i.e. against the weight of evidence, only then conclusion drawn by the trial Court could be re-appraised."
In K. Prakashan Vs. P. K. Surenderan (2008) 1 SCC, 258, Hon'ble Apex Court held that :-
"When two views are possible appellate Court should not reverse the judgement of acquittal merely because the other view was possible when judgement of trial court was neither perverse nor suffered from any illegality or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified."
In T. Subramanyan Vs. Tamilnadu (2006) 1 SCC, page 401, Hon'ble Apex Court laid down that:-
"Where two views are reasonably possible from the very same evidence prosecution cannot be said to have proved its case beyond reasonable doubt."
In light of above legal propositions I have perused the impugned judgment and order of the trial court and do not find any illegality, infirmity and perversity in the same. The view taken by the trial judge is just, proper and does not suffer from any misreading of any material evidence on record.
In view of the aforesaid, there is no merit in the application for leave to appeal which is hereby rejected and consequently the present appeal is, accordingly, dismissed.
Order Date :- 24.8.2018 Anand Sri./-