Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 1026 (GUJ)

State of Gujarat v. Nadoda Hemabhai Bhalabhai

2014-09-15

G.B.SHAH

body2014
JUDGMENT : G.B. SHAH, J. 1. Present appeal under Section 378 of the Criminal Procedure Code, 1973 (‘the Code’ for brevity) has been directed against judgment and order dated 21.08.1997 passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 146 of 1995 whereby, the learned trial Judge was pleased to acquit the respondent herein-original accused from the offence punishable under Sections 17 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for brevity). 2. Heard Mr. K.L. Pandya, learned Additional Public Prosecutor, for the appellant-State of Gujarat and Mr. Sahil M. Shah, learned advocate for the respondent-original accused. 3. Brief facts of the prosecution case are that on 23.12.1994 at about 8:30 a.m. when complainant M.D. Puwar, Police Sub Inspector, Anti Terrorists Squad and other police staff were petrolling in Mahesana town, he received information from a secret informant that the respondent herein would be passing through Palavasan three roads carrying with him narcotics viz. Opium illegally. Accordingly, they blockaded at Palavasan three roads, after carrying out necessary procedures and along with two panchas. When the respondent-accused reached the spot, they enquired and searched him, following due procedure for the same and found about 1 kg. and 930 gms. Opium, without any pass or permit. Accordingly, the accused was alleged to have committed the offence as above for which, complaint had been lodged against him. 4. In support of the case, the prosecution recorded statements of witnesses and collected several documentary evidence and after having found sufficient evidence and material against the accused, he came to be charge-sheeted for the alleged offence. 5. The learned trial Judge framed Charge against the accused for the alleged offence. The Charge was read over to the respondent-original accused to which, he pleaded not guilty and claimed to be tried. 6. In order to bring home the charge against the respondent-original accused, the prosecution has examined as many as 06 witnesses and also produced several documentary evidence. 7. On submission of closing pursis, the Further Statement of the accused under Section 313 of the Code was recorded. The accused denied involvement in the crime. After hearing both the sides and on appreciation of the evidence adduced before the trial Court, the accused came to be acquitted. 8. Mr. 7. On submission of closing pursis, the Further Statement of the accused under Section 313 of the Code was recorded. The accused denied involvement in the crime. After hearing both the sides and on appreciation of the evidence adduced before the trial Court, the accused came to be acquitted. 8. Mr. K.L. Pandya, learned Additional Public Prosecutor, submitted that the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. He submitted that the prosecution has examined in all 06 witnesses, who have supported the case of the prosecution, however, the learned trial Judge has not properly appreciated the evidence of the said witnesses and thereby, the finding recorded by the learned trial Judge that the prosecution has failed to prove the charge against the accused by leading legal, reliable and impeachable evidence, is contrary to the evidence available on record. He further submitted that the learned trial Judge has erred in acquitting the respondent-accused only on the ground that the prosecution has breached the mandatory provisions of Sections 50 and 57 of the NDPS Act. He submitted that the learned trial Judge ought to have considered the fact that about 1 kg. and 930 gms. of Opium was found from the possession of the accused, without any pass or permit, which is a very large quantity and thereby, he had committed the offence under Sections 17 and 18 of the NDPS Act, however, the learned trial Judge has failed to appreciate the said fact. He further submitted that the learned trial Judge has not properly appreciated the evidence of Bachubhai Kalidas Barot, Exh.13, Tribhovanbhai Maganbhai Patel, Exh.15, Jayeshbhai Chimanlal Soni, Exh.16, Raghubhai Ramjibhai, Exh.17, Kesharisinh Shivsinh, Exh.18, Madansinh Dulesinh Puwar, Exh.32, who have supported the case of the prosecution. The learned Additional Public Prosecutor further submitted that the learned trial Judge has erred in holding that there are major contradictions in the depositions of prosecution witnesses Raghubhai Ramjibhai and Kesharisinh Shivsinh, whose depositions are at Exhs.17 and 18 respectively. The learned Additional Public Prosecutor further submitted that almost all the witnesses have supported the case of the prosecution but the learned trial Judge has not believed their evidence and has eventually, acquitted the respondents- accused. The learned Additional Public Prosecutor further submitted that almost all the witnesses have supported the case of the prosecution but the learned trial Judge has not believed their evidence and has eventually, acquitted the respondents- accused. Last but not the least, he submitted that the present appeal may be allowed in the interest of justice. 9. Per contra, Mr. Sahil M. Shah, learned advocate for the respondent-original accused, submitted that the learned trial Court has rightly appreciated the evidence which is forthcoming on the record and the reasons recorded for recording a finding of acquittal are reasonable and justifiable. He further submitted that there are glaring and major contradictions and material improvements without any explanation in the depositions of the prosecution witnesses and therefore, the respondent has rightly been acquitted by the learned trial Court. He further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the learned trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. Eventually, he submitted that the present appeal may be dismissed. 10. I have considered the above-referred rival submissions made by the learned advocates for the parties and in light of the same, I have gone through the record and proceedings related to the Sessions Case No. 146 of 1995. After going through the depositions recorded by the prosecution, it appears that two panchas have not supported the case of the prosecution and they have been declared hostile. Witness-Jayeshbhai Chimanlal Soni, who had weighted the seized muddamal, has also not supported the case of the prosecution. So far as depositions of Head Constables-Raghubhai Ramjibhai and Kesharisinh Shivsinh, examined vide Exhs.17 and 18 respectively, are concerned, they have not stated anything about the informant i.e. Batmidar. Further, there appears breach of mandatory provisions of Sections 50 and 55 of the NDPS Act on the part of the prosecution and considering the same, the prosecution case does not inspire any confidence, as has been observed by the learned trial Judge at length in the impugned judgment and order. Thus, on going through the impugned judgment and order carefully, dealing with all the aspects of the matter, this Court is in agreement with the conclusion arrived at and findings recorded by the learned trial Judge and with a view not to burden the Court record any more, the Court stays its hands. Thus, on going through the impugned judgment and order carefully, dealing with all the aspects of the matter, this Court is in agreement with the conclusion arrived at and findings recorded by the learned trial Judge and with a view not to burden the Court record any more, the Court stays its hands. 11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 . In the instant case, the learned Additional Public Prosecutor has not been able to point out as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 11.1 In the case of Ram Kumar vs. State of Haryana, AIR 1995 SC 280 , Supreme Court has held as under: “The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. Are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal.” 11.2 As observed by the Hon'ble Supreme Court in the case of Rajesh Singh and Others vs. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan alias Jardar Khan vs. State of Madhya Pradesh, (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Courts interference in such appeal is somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 11.3 Thus, considering the above evidence forthcoming on record and considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 12. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 21.08.1997 passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 146 of 1995, is confirmed. Bail bonds shall stand cancelled. Registry to send back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same. Appeal dismissed.