Court No. - 11
Case :- GOVERNMENT APPEAL No. - 6241 of 2009
Appellant :- State Of U.P. Respondent :- Saleem Beg Counsel for Appellant :- G.A.
Hon'ble Ifaqat Ali Khan,J.
Heard Sri Ratan Singh, learned A.G.A appearing for the State on the application seeking leave to appeal against the judgment and order dated 25.03.2009 passed by Additional Session Judge Court No. 5, Bijnor in Special Sessions Trial No. 3 of 2008 (State of U.P. Vs. Saleem Beg) by which accused/respondent Saleem Beg has acquitted on the basis of benefit of doubt from the charge under section 18/20 NDPS Act.
In nutshell the prosecution case is that on 14.11.2007 at about 15.30 near Degree College two persons were apprehended by the police and when the police asked why they were running then they told they have Charas with them. When searched was carried out 200 gram Charas wrapped in polythin was recovered from the right pocket of kurta of Dinesh and 200 gram Charas wrapped in polythin was recovered from the right pocket of pant of Saleem Beg.
Learned Trial Court has returned the verdict of acquittal on the ground that accused/respondents have apprehended by the police party at 3.30 P.M. i.e. during day time and place of occurrence is a public place and many public persons passes from there but no public person is made the witness of the recovery. Prosecution has stated that police tried to avail the public witness but no body became ready to become a witness. In such circumstances, police party must have mentioned the name of those persons which were asked by the police party to became the witness of the occurrence.
In this case charge sheet is submitted on 16.11.2007 just two days after the occurrence, whereas the report of the Forensic Lab is received on 04.01.2008 meaning thereby the charge sheet was submitted prior to receipt of the forensic laboratory report in Prahalad Sharma Vs. State of U.P. 2004 (2) JIC 572 it is held by the court that where the charge sheet has submitted without receiving the forensic laboratory report then it reveals that the Investigating Officer has not conducted the investigation properly and he has acted in over zealously and it cannot be ground of acquittal alongwith the other grounds. Provisions of section 52, 55 and 57 of NDPS Act are not complied with and there is no criminal history of accused/respondent.
Learned A.G.A. has also not been able to point out any illegality or perversity with the findings as has been recorded by the court below and thus it cannot be said that the view taken by the trial court is a perverse view.
Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 1 SCC 186, para 13, wherein this Court observed that: “The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim- respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627. Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that more than 11 years have already elapsed as the incident is of the year 2007.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 24.8.2018 Vikram