Court No. - 75
Case :- GOVERNMENT APPEAL No. - 1248 of 2004 Appellant :- State Of U.P.
Respondent :- Santosh Kumar Gupta And 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 12.11.2003 passed by Metropolitan Magistrate-VI, Kanpur Nagar in Case Nos.1836 of 2002 and 1837 of 2002 under Section 18/20/22 of N.D.P.S. Act, Police Station Narwal, District Kanpur Nagar, whereby accused-respondents were 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. Recovery is supported by the statement of witnesses examined in the matter. Link evidence have also been proved. Trial Court while passing the impugned order ignored the evidence available on record. Findings recorded by the trial court in the impugned judgement and order are perverse. Thus prayer is made to grant leave to appeal.
I have considered the submissions.
In this matter, as is evident from the record, prosecution has failed to establish link evidence. Trial court while passing the impugned order was of the view that prosecution was not able to prove the recovery beyond reasonable doubt. Prosecution side did not produce any evidence in support of its case although sufficient opportunity was afforded to them. 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. Mandatory provisions provided under the Act have not been followed. In the facts and circumstances of the case, view taken by the trial court is also a possible view.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 SCC 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 SCC 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 to 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 reasons discussed here-in-above is not liable to be allowed and same is refused.
Since the application for grant of leave to appeal has been refused, the appeal is also not liable to be admitted and is dismissed at this stage.
Order Date :- 30.5.2019 ss