Court No. - 26
Case :- GOVERNMENT APPEAL No. - 7406 of 2009 Appellant :- State Of U.P. Respondent :- Bhagirath Counsel for Appellant :- G. A.
Hon'ble Om Prakash-VII,J.
Heard learned A.G.A. and perused the entire record.
The present appeal has been filed along with leave to appeal application against the impugned judgement and order dated 02.07.2009 passed by learned Additional Sessions Judge/F.T.C., Lalitpur in Special Session Trial No. 30 of 2007 (State of U.P. Vs. Bhagirath), under Section 22 of N.D.P.S. Act, Police Station G.R.P., District Lalitpur, whereby accused-respondent was acquitted.
Submission of learned A.G.A. is that prosecution was able to prove its case beyond reasonable doubt. Mandatory provisions provided under N.D.P.S. Act have been followed. Link evidence have also been proved. Findings recorded by the trial court in the impugned judgement and order are perverse. Thus prayer was made to grant leave to appeal.
I have considered the submissions.
In this matter, as is evident from the record, two persons are said to have been arrested along with narcotic drugs. A joint offer has been given to them in compliance of Section 50 of N.D.P.S. Act. Trial court was of the view that offer given to the accused person was not in strict compliance of Section 50 of N.D.P.S. Act. It has also been observed that weigh of contraband is not shown on the basis of actual weighing it nor the provision of Section 57 of N.D.P.S. Act has been complied with. Trial court was also of the view that before making search of the accused persons, police party did not to be search themselves. If the observations recorded by the trial court are taken into consideration in light of the settled legal position, recovery said to have been made in the matter appears doubtful. Thus finding recorded by the trial court in the impugned judgement and order cannot be termed to be illegal. There is no illegality, infirmity or perversity in the impugned judgement and order.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 Supreme Court Cases 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."
At this juncture, reference may also be given of the following case laws;
(1) State of Rajasthan Vs. Permanand and another (2014)5 SCC 345.
(2) C. Al. Vs. State of Kerla (1999)7 SCC 88.
(3) Khet Singh Vs. Union of India (2002)45 ACC 41.
(4) G. Sriniwas Gond Vs. State of A.P. (2005)8 SCC 183.
(5) State of Punjab Vs. Balbir Singh (1994)3 SCC 299.
Thus, the application moved by the appellant State of U.P. to grant leave to appeal for the reason discussed herein above is not liable to be allowed and same is refused.
Since the application for grant of leave to appeal has been refused, the appeal is also not liable to be admitted and is dismissed at this stage.
Order Date :- 24.8.2018 Sanjeet