Court No. - 26
Case :- GOVERNMENT APPEAL No. - 7348 of 2009 Appellant :- State Of U.P.
Respondent :- Randhir Kumar & 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 dated 09.03.2009 passed by Additional Sessions Judge/F.T.C., Court No. 3, Gorakhpur in Special Sessions Trial Nos. 113/114/115/116 of 2008 (State of U.P. Vs. Randhir Kumar and others), under Section 8/22 N.D.P.S. Act, Police Station Cantt. District Gorakhpur, whereby accused-respondents have been acquitted.
Submission of learned A.G.A. is that prosecution was able to prove its case beyond reasonable doubt against the accused- respondents. Recovery was also proved. Mandatory provisions provided under N.D.P.S. Act have been followed. Link evidence required to be proved in the N.D.P.S. cases have also been proved. Option for search before the Magistrate/Gazetted Officer have also been given. Sample of contraband said to have been sent for chemical examination was also found "Heroin". Trial court illegally observing that link evidence has not been proved acquitted the accused-respondents. Thus prayer was made to grant leave to appeal.
I have considered the submissions.
In this matter as is evident from the record, recovery is of 19.03.2008. Mandatory provisions provided under N.D.P.S Act have not been followed in literal sense. Legal right available to the accused-respondents were not informed them in literal sense. Apart from this, docket for sending the sample was prepared belatedly on 15.04.2018. No plausible explanation for delay in preparing the docket has been given by the prosecution. It is also evident from the record that prosecution was also not able to prove that contraband kept in the Malkhana was remained intact till its production before the concerned Magistrate for preparing the docket. It is also evident that docket is prepared on 15.04.2008. Contraband is received at the F.S.L. on 19.04.2008. Prosecution was not able to prove that whether the contraband was remained intact in between 15.04.2008 to 19.04.2008. If the findings recorded by the trial court are minutely analysed with the facts and evidence in consonance with submission raised by learned A.G.A., no illegality, infirmity or perversity is found in the impugned judgement and order.
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 :- 23.8.2018 Sanjeet