Court No. - 10
Case :- GOVERNMENT APPEAL No. - 2656 of 2010 Appellant :- State Of U.P.
Respondent :- Jittu Counsel for Appellant :- GA
Hon'ble Daya Shankar Tripathi,J.
(Order on Criminal Misc. Application) Heard learned AGA and perused the impugned judgment of acquittal.
This application for leave to appeal has been preferred against the judgement and order dated 16.11.2009 passed by Additional Sessions Judge (F.T.C.), Lalitpur in S.T. No. 05 of 2009, arising out of Case Crime No. 997 of 2008, under Section 20-B NDPS Act, police station Jakhlaun, District Lalitpur, by which the respondent accused has been acquitted by the trial court.
Facts giving rise to this application for leave to appeal, in brief, are that Station Officer Shiv Sagar Pandey alongwith other police personnel was busy for maintaining law and order in the area on 26.11.2008 and reached at ferry-boat of village Bandargudha and saw that a young person was sitting under a tree. Seeing the police personnel, he started to move having bag in his hand. On doubt, he was arrested at about 4:30 P.M. and upon being enquired, he told his name Jittu son of Babu Singh Rajpoot, resident of Village Barana, P.S. Chanderi, District Ashok Nagar, Madhya Pradesh. Upon being searched, GAANJA weighing about 1 K.G. and 250 Grams was recovered from the plastic bag, which was being carried by him. Recovered article was sealed on the spot and sample seal was prepared. Recovery memo was prepared on the spot and its copy was given to the accused.
On the basis of recovery memo, case crime No. 997 of 2008, under Section 18/20 NDPS Act was registered on 26.11.2008 at 18:10 hours. The case was investigated by Sub Inspector Jai Narayan Sharma. After recording statement of witnesses and completing the investigation, charge-sheet was submitted against the respondent accused.
Charges were framed by trial court against respondent accused under Section 20-B NDPS Act and respondent accused denied from the charges levelled against him and claimed for trial.
PW-1 Shiv Sagar Pandey, the then Station Officer, P.S. Jakhlaun (complainant), PW-2 Constable Bhagwat Narayan (companion of police party) and PW-3 Constable Lallu Ram (companion of police party) were examined by the prosecution before the trial court.
Statement of respondent accused under Section 313 Cr.P.C. was recorded, in which he stated that he has been falsely implicated in the present case. No witness was examined by respondent accused in his defence.
After giving opportunity of hearing to both the parties, judgement and order dated 16.11.2009 has been passed by the learned trial court, by which respondent accused has been acquitted from the charges levelled against him.
Being aggrieved from the aforesaid judgement and order dated 16.11.2009, this application for leave to appeal has been filed on behalf of State.
Learned AGA submitted that there is sufficient evidence on record to bring home the charges levelled against the respondent accused. Learned trial court has failed to properly appreciate the evidence available on record. It is further submitted that findings recorded by learned trial court are perverse and illegal. Hence, application for leave to appeal should be allowed.
It is borne out from the record that alleged recovery is said to have been made from accused in presence of police personnel and all the fact witnesses PW-1, PW-2 and PW-3 belong to police party. Neither any public witness is said to be present at the time of alleged recovery nor any public witness has been examined by the prosecution. In such a situation, heavy burden lies upon the prosecution to prove the charges levelled against the respondent accused, beyond reasonable doubt.
Findings have been recorded by learned trial court that provisions of Sections 42, 50 and 57 NDPS Act have not been complied with by the prosecution. Further findings have been recorded that alleged recovery of GANJA and arrest of accused has been made by Sri Shiv Sagar Pandey, the then Station Officer, P.S. Jakhlaun and investigation of this case has been conducted by S.I. Jai Narayan Sharma, who is subordinate officer of the Station Officer. In such a situation, investigation of this case is tainted. Learned trial court has relied upon the case laws laid down in Raghuvir v State of U.P., 1995, U.P.C.R.R., 57 and Ram Jatan v State, 1995 U.P.C.R.R., 349. Final findings have been recorded by learned trial court that serious contradictions have appeared in the ocular evidence of prosecution witnesses, due to which their testimony is not reliable and prosecution has failed to prove the charges levelled against the respondent accused.
In State of Gujarat v. Jayrajbhai Punjabhai Varu reported in 2016 (2) SC.C.Cr.R. 943, it has been held by the Hon'ble Supreme Court that if two views are possible on the evidence adduced in the case, the view favourable to the accused should be adopted. The relevant portion of the report is reproduced below:-
"13. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
Considering the arguments advanced by learned AGA, evidence available on record and law laid down by the Hon'ble Supreme Court in the case of State of Gujarat (supra), the impugned judgment and order passed by the learned trial court cannot be said to be illegal, illogical and perverse, rather it is well discussed and based on sound reasoning. So, I am of the view that no interference is called for. This application for leave to appeal is devoid of any merit and it is liable to be rejected.
Accordingly, application for leave to appeal is rejected.
Order Date :- 25.7.2018 SR
Court No. - 10
Case :- GOVERNMENT APPEAL No. - 2656 of 2010 Appellant :- State Of U.P.
Respondent :- Jittu Counsel for Appellant :- GA
Hon'ble Daya Shankar Tripathi,J.
(Order on Memo of Appeal) Since the application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive and stands dismissed.
Order Date :- 25.7.2018 SR