1. Though served, but nobody is appeared on behalf of the respondent. Therefore, the Appeal is taken up for final hearing on today.
2. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 1.10.1992 passed by the learned Sessions Judge, Jamnagar, in Criminal Case No.51 of 1990, whereby the accused has been acquitted from the charges leveled against him.
3. The brief facts of the prosecution case are as under:
3.1 On 9.3.1990 at about 12:00 hrs. the complainant, Head Constable at Jamnagar City "A" Division Police Station, along with other police persons, caught the accused with a piece of opium worth Rs.30/-. As per the complainant, there was no permit about the said opium and thereby the accused committed offence punishable under Section 20 (c) of the Bombay Prohibition Act and Section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, chargesheet was filed against him before the court of learned Magistrate. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No.51 of 1990. The trial was initiated against the respondent - accused.
3.2 To prove the case against the present accused, the prosecution has examined, in all 3 witnesses and also produced several documentary evidence.
3.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 1.10.1992 .
4. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the present appeal.
5. It is submitted by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence. Learned APP further submitted that in the presence of the police, the accused was searched and found a tablet of opium from the possession of the accused. She further submitted that the Investigating Officer had not the mandatory provisions of the Act. As per her submission, though the panchas turned hostile, the learned trial Judge ought to have convicted the accused considering the fact that opium which was recovered from the possession of the accused. She submitted that present Appeal is required to be allowed by quashing and setting aside the order passed by the trial Court.
6. I have perused the record and considered the submissions made by the parties. The witnesses were examined by the trial Court, turned hostile during the course of trial. Investigating Officer did not follow the mandatory provisions of the Act and there was no independent witness was examined by the complainant. Learned trial Judge has rightly observed that when the mandatory provisions are not followed by the concerned officer, the evidence of witness cannot be considered as believable. Therefore, learned trial Judge rightly appreciated the evidence on record and rightly acquitted the accused.
7. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
8. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
9. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
10. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellant-State. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
12. Learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
13. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
14. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
15. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.) ynvyas Top