Court No. - 26
Case :- GOVERNMENT APPEAL No. - 4830 of 2007 Appellant :- State Of U.P. Respondent :- Sanjay Kasera Counsel for Appellant :- A.G.A.
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 20.03.2007 passed by learned Additional Sessions Judge, Court no. 01, Mirzapur in Case No. 65 of 2003, under Sections 21 of N.D.P.S. Act, Police Station Kotwali, District Mirzapur whereby accused-respondent was acquitted.
Submission of learned A.G.A. is that prosecution was able to prove its case beyond reasonable doubt. Mandatory provisions provided under N.D.P.S. Act have been followed. Link evidence have also been proved. Sample of Contraband was sent for chemical examination and the same is found "heroin". Trial court findings in the impugned judgement and order are perverse and illegal. Thus prayer was made to grant leave to appeal.
I have considered the submissions.
In this matter, as is evident from the record, search is made of the person of accused but provisions provided under N.D.P.S. Act for search have not been followed and legal right available to the accused-respondent was not informed to him in literal sense. Link evidence have also not been proved. If the findings recorded by the trial court are minutely analyzed in the light of submission raised by learned AGA, no illegality or perversity is found.
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 :- 24.8.2018 A.N. Mishra