Court No. - 26
Case :- GOVERNMENT APPEAL No. - 8038 of 2007 Appellant :- State Of U.P.
Respondent :- Mahendra Singh And Others 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 dated04.08.2007 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Kanpur Dehat, passed in Special Sessions Trial No. 59 of 2006 (State versus Mahendra Singh & another) and in Sepecial Sessions Trial No. 60 pf 2006 (State versis Ram Khilawan and another), under Section 20(B)(11)(C) N.D.P.S. Act, Police Station Akbarpur, District Kanpur Dehat whereby accused-respondents were 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 were also followed. Link evidence have also been proved. Contraband sent to the chemical examination was also found "Charas". Findings recorded by the trial court in the impugned judgement and order are perverse and illegal. Thus prayer was made to grant leave to appeal.
I have considered the submissions.
In this matter, as is evident from the record, prosecution was not able to prove the link evidence regarding keeping of the contraband in safe custody in the maal khana on the day of recovery, whether it remained intact till the preparation of docket and production of the same at the Forensic Science Laboratory. Other provisions provided under N.D.P.S. Act have also not been followed. Although contraband is said to have been kept in pocket but mandatory provision provided under N.D.P.S. Act was not followed in literal sense. If the findings recorded by the trial court are minutely analyzed with the facts and evidence in consonance with submission raised by learned A.G.A., it is evident that there is major contradiction in the prosecution evidence and link evidence have not been proved.
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 to 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/A.N. Mishra