Court No. - 34
Case :- GOVERNMENT APPEAL No. - 4484 of 2002 Appellant :- State Of U.P.
Respondent :- Babu Lal Counsel for Appellant :- Govt. Advocate
Hon'ble Om Prakash-VII,J.
This Government Appeal has been filed under Section 378 of the Code of Criminal Procedure along with the application to grant leave by the State of U. P. against the judgment and order dated 5.6.2002 passed by the Special Judge, N.D.P.S. Act, Hamirpur in Special Session Trial No. 51 of 1992 (State Vs. Babu Lal), under Section 17/20 N.D.P.S. Act, Police Station Sisolar, district Hamirpur whereby accused/opposite party Babu Lal has been acquitted in the aforesaid Special Sessions Trial.
Heard learned A.G.A. and perused the record.
Submission of the learned A.G.A. is that prosecution was able to prove its case beyond reasonable doubt. It was further argued that prosecution witnesses have proved the recovery beyond reasonable doubt. Option for search and seizure before the Gazetted Officer/Magistrate both have been given to the opposite party/accused. When he denied, search was made by the police party itself and contraband was recovered. The recovered contraband was sent for examination to the Foresnsic Science Laboratory. Referring to the findings recorded in the impugned judgment and order, it was also argued that after analysis recovered contraband was found "Opium". Trial court finding that prosecution was not able to prove its case beyond reasonable doubt is perverse and is the result of incorrect appreciation of evidence. At this juncture learned A.G.A. also referred to other findings recorded by the trial court in the impugned judgment and order and argued that leave to appeal be allowed and the appeal be admitted.
I have considered the submissions made by the learned A.G.A. and gone through the record.
Trial court while passing the impugned judgment and order has observed that nothing has been mentioned in the recovery memo about the option for search and seizure before the Gazetted Officer/Magistrate in the "Fard". P.W.-1/recovery officer when examined before the court on oath has specifically admitted that he has not mentioned this fact in the recovery memo. Arresting officer has not made search of only bag but personal search was also made. Prosecution is also not able to establish that the recovered contraband was kept safely in the "Malkhana" and the same was sent to the Laboratory. In absence of link evidence and on the basis of non compliance of mandatory provision of Section 50 of the N.D.P.S. Act, trial court has rightly acquitted the accused. Findings recorded by the trial court in the impugned judgment and order are not perverse.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 S.C.C. 315 has held as under.
"It is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence."
In the case of Gangabhavani Versus Rayapati Venkat Reddy and Others, (2013) 15 Supreme Court Cases 298, Hon'ble Supreme Court has held as under.
"This Court has persistently emphasised that there are limitations while interfering with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the lower Court bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Leave to appeal prayed by the learned A.G.A. is not liable to be allowed and is hereby refused.
Since application for leave to appeal has been refused, appeal is also liable to be dismissed.
Hence it is dismissed accordingly.
Order Date :- 27.7.2018 Sachdeva