Court No. - 20
Case :- GOVERNMENT APPEAL No. - 5185 of 2010 Appellant :- State Of U.P. Respondent :- Pravesh Kumar 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 21.4.2010 passed by Additional Sessions Judge, Court No. 6, Manpuri in Special Trial No. 04 of 2007 (State Vs. Pravesh Kumar), Police Station-Kotwali, District-Manpuri whereby he has acquitted the opposite party of charges under Sections 21/22 N.D.P.S. Act.
Prosecution story in brief is that on 09.11.2006 S.I. P. L. Kushwaha alongwith other police personnel was in search of accused persons wanted in Case Crime No. 668 of 2000, under Sections 363, 366 and 376 I.P.C. They were about to go at Nagla for the arrest of accused Prashant @ Janu who was also wanted in the aforesaid case at that point of time informant informed them that accused Sanjay @ Bhagda alongwith other co-accused was about to commit offence. The police personnel alongwith informant reached the Agra Road and informant told them that the accused persons were standing near Transformer. Both the accused were arrested at about 18.25 hours and on inquiry they have disclosed their names and address as Sanjay Diwakar and Pravesh Kumar resident of Prajapati Colony, Agra Road, PS Kotwali Manpuri. On their personal search 150 tablet of diazepam were recovered On the basis of aforesaid, 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 Constable 611 Kunwar Pal Singh, PW2 Constable 640 Dinesh Kumar, PW3 HC. Ranjeet Singh, PW4 S.I. Srawan Kumar Shukla, PW5 Constable 203 Pooran Singh.
Perusal of the impugned judgement and order shows that procedure prescribed under Sections 50 and 57 N.D.P.S. Act has not been followed. No independent witness has been produced by the prosecution to prove the alleged aforesaid recovery while it was a day light incident. 200 tablet were examined in chemical analysis and weight of the same was measured as 50 grams but the quantity of diazepam has not been disclosed in F.S.L. Report. More so, the said tablet is easily available in market. 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-respondent 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