Court No. - 20
Case :- GOVERNMENT APPEAL No. - 5198 of 2010 Appellant :- State Of U.P. Respondent :- Manoj Counsel for Appellant :- G.A.
Hon'ble Ravindra Nath Kakkar,J.
Heard learned A.G.A. for State-appellant and perused the material placed on record.
The instant appeal has been filed alongwith application seeking leave to appeal against impugned judgement and order dated 27.4.2010 passed by Additional Sessions Judge, Fast Track Court No. 1, Baghpat in Special Case No. 26 of 2006 (State Vs. Manoj), Police Station-Badaut, District-Baghpat whereby he has acquitted the opposite party of charges under Section 18/20 N.D.P.S. Act.
Prosecution story in brief is that on 19.08.2006 the complainant S.I. Ganesh Chandra Maurya alongwith other police personnel, after making entry as Rapat No. 49, 21.15 hours proceeded from the police station and as soon as they reached after canal bridge they saw a person coming from the side of Jonmana and after seeing the police party he turned and proceeded speedily. On suspicion the police party after flashing torch asked him to stop, however, he did not stop and fled away. The police party chased him and caught hold of him at about 22:00 hours near culvert. The police party asked him as to why he ran away, whereupon he disclosed that he possessed 500 grams Charas. The aforesaid person disclosed his name as Manoj. On search 500 gram Charas was recovered. The search and seizure was made after complying mandatory provision of N.D.P.S. Act. Due to late night no person was available to be made a witness. The recovered Charas was sealed and sample was also sealed. The Fard was prepared on spot. Thereafter, the accused-respondent as well as the recovered articles was taken to the police station and F.I.R. was lodged. After lodging of the F.I.R. the Investigating Officer investigated the case and charge sheet was submitted against the accused-respondent to face trial. Accused-respondent denied the prosecution allegations and claimed trial.
Prosecution in order to prove its case has examined PW1 S.I. Maurya, PW2 Constable Surendra Singh, PW3 Constable Bijendra Singh and PW4 S.I. Neeraj Singh.
Perusal of the impugned judgement and order shows that procedure prescribed under Section 50 N.D.P.S. Act has not been followed. No independent witness has been produced by the prosecution to prove the alleged aforesaid recovery. All the witnesses who were produced before the trial court were formal police witnesses and there are material contradiction in their statement with respect to the alleged recovery. On the basis of aforesaid, the learned trial Court has acquitted the accused from all the charges levelled against him.
It is relevant to mention that in Gamini Bala Koteswara Rao Vs. State of Andhra Pradesh, AIR 2010 SC Page 589 the Hon'ble Apex Court has held that:-
"Only in a case when the judgement of the trial court is stated to be perverse i.e. against the weight of evidence, only then conclusion drawn by the trial Court could be re-appraised."
In K. Prakashan Vs. P. K. Surenderan (2008) 1 SCC, 258, Hon'ble Apex Court held that:-
" When two views are possible appellate Court should not reverse the judgement of acquittal merely because the other view was possible when judgement of trial court was neither perverse nor suffered from any illegality or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified."
In T. Subramanyan Vs. Tamilnadu (2006) 1 SCC, page 401, Hon'ble Apex Court laiddown that:-
"Where two views are reasonably possible from the very same evidence prosecution cannot be said to have proved its case beyond reasonable doubt."
In light of above legal propositions, I have perused the impugned judgement and order of the trial Court and I do not find any illegality, infirmity or perversity in the impugned judgement and order. The view taken by the trial Court is just and does not suffer from any misreading of any material evidence on record.
In view of the aforesaid, the leave to appeal is declined. The application for leave to appeal is accordingly rejected.
Consequently, the appeal is also dismissed.
Order Date :- 26.7.2018 AKT