Court No. - 34
Case :- GOVERNMENT APPEAL No. - 5553 of 2002
Appellant :- State Of U.P.
Respondent :- Manoj Kumar Chaudhary Counsel for Appellant :- Govt. Advocate
Hon'ble Om Prakash-VII,J.
Heard learned A.G.A. and perused the entire record.
This appeal is preferred along with the application for leave to appeal by the State of U.P. against the judgment and order dated 24.7.2002 passed by Ist Addl. Sessions Judge, Ghazipur in criminal case no.111 of 1992, State Vs. Manoj Kumar Chadhary under section 8/18/21 N.D.P.S. Act, P.S. Mohammadabad, District Ghazipur whereby respondent accused has been acquitted for the charge under section 8/18/21 N.D.P.S. Act.
Submission of learned A.G.A. is that prosecution was able to prove its case beyond reasonable doubt. Trial court wrongly appreciating the prosecution evidence acquitted the respondent accused on insufficient ground. It is further argued that option for search and seizure was given to accused. Provisions of section 42 and 50 of N.D.P.S. Act were fully complied with. Although police witnesses examined on oath did not appear before the court for cross-examination, yet they have supported the prosecution case in examination-in-chief. Referring to the statement of independent witnesses of recovery described in the impugned judgment and order, it is further submitted that they have also admitted their signature on the recovery memo. Recovered contraband was also sent to Forensic Science Laboratory. Link evidence required to be proved to establish the guilt of accused respondent for the offence under section 8/18/21 N.D.P.S. Act has also been fully established. Observations recorded by the trial court in the impugned judgment and order are perverse. Thus, prayer has been made to grant leave to appeal and to also admit the appeal.
I have considered the submission advanced by the learned A.G.A. for the State - appellant and gone through the record.
Impugned judgment and order itself reveals that legal rights available to the accused respondent, as required under section 50 of the N.D.P.S. Act have not been informed to him in strict sense. Only option was given to him to be searched before the Gazetted Officer / Magistrate. Two independent witnesses have also been examined by the prosecution to prove the fact of recovery, but they did not support the prosecution case. They also admitted signature in the recovery, but this fact itself is not sufficient to hold the guilty of the accused respondent. If the observations recorded by the trial court in the impugned judgment are minutely analyzed, it transpires that link evidence i.e. where the recovered contraband was kept when it was sent to the Laboratory for examination has 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."
On close scrutiny of entire evidence in consonance with the submission advanced by the learned A.G.A., observations recorded by the trial court in the impugned judgment and order need no interference.
Application for leave to appeal is not liable to be allowed and the same is accordingly dismissed.
Since application for leave to appeal is dismissed, Government Appeal is also dismissed.
Order Date :- 27.7.2018
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