Court No. - 20
Case :- GOVERNMENT APPEAL No. - 7390 of 2006 Appellant :- State Of U.P.
Respondent :- Shiv Bhajan Gupta @ Babloo Counsel for Appellant :- Govt. Advocate
Hon'ble Ravindra Nath Kakkar,J.
Heard learned A.G.A. for the State and perused the material placed on record.
This appeal has been filed along with application seeking leave to appeal against impugned judgement and order dated 8.8.2006 passed by learned A.C.J.M. Court No. 2, Varanasi in Case No. 5870 of 2005, Police Station Cholapur, District Varanasi whereby the accused-opposite party has been acquitted under section 60 of N.D.P.S. Act.
From the perusal of the impugned judgment it reveals that in the present case no independent witness has been produced by the prosecution. Further, there are discrepancies over making recovery memo regarding delay and the recovered article from the possession of the accused persons have not been produced before the court below. On the basis of evidence adduced by the prosecution the learned trial Court has acquitted the accused person from all the charges levelled against him.
It is relevant to mentioned 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 wright of evidence, only then conclusion drawn by the trial Court could be re-appraised."
In K. Prakashan Vs. P.K. Surenderam (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. Subramanyam Vs. Tamilnadu (2006) 1 SCC, page 401, Hon'ble Apex Court laid down that:-
"Where two view are reasonably possible from the very same evidence prosecution can not be said to have proved its case beyond reasonable doubt."
Considering the above legal propositions, 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 :- 23.8.2018 RPD