Court No. - 75
Case :- GOVERNMENT APPEAL No. - 2877 of 2004 Appellant :- State Of U.P.
Respondent :- Jaipal Counsel for Appellant :- Govt. Advocate
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 17.2.2004 passed by Additional Sessions Judge, Fast Track Court No.4, Saharanpur in Special Case No. 23 of 2002 under Section 18/20 of N.D.P.S. Act, Police Station Chilkana, District Saharanpur, whereby accused-respondent was acquitted by the Trial Court extending the benefit of doubt.
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. Recovery is supported by the statement of witnesses examined in the matter. Contraband said to have been recovered was remained intact in Malkhana till submission to Forensic Science Laboratory. Link evidence have also been proved. Findings recorded by the trial court in the impugned judgement and order are perverse. Thus prayer is made to grant leave to appeal.
I have considered the submissions.
In this matter, as is evident from the record, 5 kg. doda post (poppy straw) was recovered from the bag of the accused- respondent. 500 grams sample was prepared and same was sent to Forensic Science Laboratory. Charge-sheet was submitted and trial was continued. Prosecution examined the witnesses in support of its case. Trial Court vide impugned judgment and order acquitted the respondent on the ground that recovery of poppy straw is doubtful. Contraband said to have been recovered in the matter was remained intact in malkhana till its submission to Forensic Science Laboratory have also not been proved beyond reasonable doubt. Seal on the sample as well as the contraband sent for chemical examination defers to each other. Mandatory provisions provided under the N.D.P.S. Act for search and seizure have not been followed in literal sense. Prosecution was not able to prove the link evidence. Material witnesses have also not been examined, who carried the sample to Forensic Science Laboratory. If such is the position, findings recorded by the Trial Court in the impugned judgment and order cannot be termed to be illegal. If the findings recorded by the trial court are minutely analysed with the facts and evidence in consonance with submission raised by learned A.G.A., no illegality, infirmity or perversity is found in the impugned judgement and order. Mandatory provisions provided under the Act have not been followed. In the facts and circumstances of the case, view taken by the trial court is also a possible view.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 SCC 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 SCC 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 to 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 reasons discussed here-in-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 :- 26.4.2019 ss