Court No. - 77
Case :- GOVERNMENT APPEAL No. - 6566 of 2007 Appellant :- State Of U.P.
Respondent :- Vishambhar Nath Mishra Counsel for Appellant :- Govt.Advocate
Hon'ble Aniruddha Singh,J.
1- Heard Ms. Ladlee Pandey, learned A.G.A. and perused the record.
2- This Government appeal has been preferred (under Section 378 Cr.P.C.) against the judgment and order dated 5.6.2007 passed by the learned Additional Sessions/Special Judge (E.C. Act), Basti in Special Case No. 13 of 2003, arising out of Case Crime No. 421 of 2003, under Section 8/20 (B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'N.D.P.S. Act'), Police Station Khalilabad, District Sant Kabir Nagar whereby opposite party-Vishambhar Nath Mishra was acquitted under Section 8/20 (B) of the N.D.P.S. Act.
3- A case was registered. After investigation, charge-sheet was submitted by the Police against the opposite party. Upon submission of said charge-sheet, charges were framed against opposite party.
4- The statement of the opposite party was recorded under Section 313 Cr. P.C. in which he denied the charges levelled against him.
5- After hearing the learned counsel appearing for opposite party and District Government Counsel (Criminal), the impugned judgment was passed. Hence this Government appeal.
4- Learned A.G.A. submitted that the impugned judgment was passed wrongly and is against the evidence on record and law. There is sufficient evidence on record to convict the opposite party but he was wrongly acquitted by the court below.
5- According to prosecution case, on 18.6.2003, the opposite party was arrested by the Police personnel on account of the fact that 1.5 kilograms Ganja was shown to be recovered from the possession of opposite party.
6- In order to prove its case, the prosecution examined four witnesses, namely, P.W.1- Constable Vijay Pratap Singh, P.W.2- Head Constable Amar Bahadur Singh, P.W.3-S.I. Ram Murti Kanaugia and P.W.4- S.I. Jainuddin Ansari. D.W.1-Shayam Sundar and D.W.2- Devendra Kumar have appeared as defense witnesses of the case.
7- From perusal of the record, it transpires that all the witnesses were Police personnel. Recovery of 1.5 kilograms Ganja recovered from the possession of the opposite party was not proved beyond reasonable doubt. There are major contradictions between the statements of Police personnel. The place of occurrence is also doubtful. The said recovered material is easily available in the market and such recovery can be planted by the Police personnel. There is no criminal history against the opposite party. D.W.1 and D.W. 2 have stated before the court below that without any reason, the Police personnel had arrested the opposite party and he was not arrested from the place of occurrence. The opposite party was a teacher in Primary School. No compliance of the provision of Section 50 of N.D.P.S. Act was done properly. Even the reason of arrest and seizure of the goods was also not proved by any evidence.
8- The incident is of the year 2003; 16 years period have elapsed and no useful purpose would be served after a long time to admit the appeal and issue notice to the opposite party, namely, Vishambhar Nath Mishra.
9- Considering the fact and circumstances of the case, the view taken by the court below is a plausible view. Hence no interference is called for in Government appeal.
10- This Court finds no illegality, impropriety or jurisdictional error in the impugned judgment. Application for leave to appeal is rejected and the Government appeal is also dismissed.
11- Stay order, if any, is vacated.
12- Office is directed to send a copy of this order to the court concerned along with lower court record immediately for compliance and necessary action.
Order Date :- 29.5.2019 OP