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Gujarat High Court · body

2014 DIGILAW 1043 (GUJ)

State of Gujarat v. Vajir Rupabhai Bhanabhai

2014-09-22

G.B.SHAH

body2014
JUDGMENT : G.B. SHAH, J. 1. The present appeal is filed by the appellant-State under section 378(1)(3) of the Code of Criminal Procedure, 1973 being aggrieved and dissatisfied with the judgment and order dated 30.06.2003 passed by the learned Special Sessions Judge, Banaskantha, Deesa in Special Case No. 79 of 1997, whereby the respondent-original accused has been acquitted of the charges levelled against him under Sections 15 and 21 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act for short). 2. Short facts of the case are that when the complainant-P.K. Solanki, PSI and other staff members were going to conduct the prohibition raid, an information was received that the respondent-accused was dealing in illegal business of contraband article like poppy-pod at his residence. Thereafter, the complainant called two panchas and other staff members and a raid was arranged. The complainant along-with panchas and other members of raiding party went to the house of the respondent-accused, where the respondent-accused was present. Thereafter, a search was made in presence of panchas and one white polythene bag containing muddamal poppy-pod weighing 3.5 kg. was recovered which was kept without any pass or permit or licence. Thereafter, panchnama was drawn and muddamal article was seized which was sent to Forensic Science Laboratory. After obtaining report from FSL, a complaint had been filed by the complainant against the respondent-original accused bearing C.R. No. I-6 of 1995 before Mavsari Police Station for the offences punishable under Sections 15 and 21 of the Act. 2.1. At the end of investigation and on the basis of material collected against the accused, a charge-sheet was filed against him. Thereafter, the charge was framed against the accused, which was read over to him. The accused pleaded not guilty to the said charge and claimed to be tried. 2.2. In order to prove the charge against the accused, the prosecution has examined, in all 6 witnesses and also produced certain documentary evidence. 2.3. Upon filing closing pursis by the prosecution, further statement of the accused under Section 313 of Cr.P.C. 1973 was recorded. The accused denied involvement in the crime. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Vav committed the case to the Court of Sessions at Banaskantha for trial, which was numbered as Special Case No. 79 of 1997. The accused denied involvement in the crime. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Vav committed the case to the Court of Sessions at Banaskantha for trial, which was numbered as Special Case No. 79 of 1997. After hearing the learned advocates appearing for the prosecution and the defence, the learned trial Judge acquitted the respondent-accused of the charges levelled against him, which is giving rise to the present appeal. 3. Heard Mr. K.L. Pandya, learned Additional Public Prosecutor, for the appellant-State. Though notice of admission issued by this Court was duly served upon the respondent-accused, he did not appear either personally or through any advocate. 4. Mr. K.L. Pandya, learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the oral as well as documentary evidence produced on record in its true and proper perspective. He then submitted that learned trial Judge has not properly appreciated the evidences of the complainant-P.K. Solanki at Exh.40, Police Constable-Ranjitsinh Harisinh at Exh.38, Police Constable Rajnikant Shambhulal, at Exh.39 and Panch witness-Banesing Pujaji, who have fully supported the prosecution case. He further submitted that the learned trial Judge ought to have considered the fact that from the house of the respondent-accused, poppy-pod weighing 3 kg. and 500 grams have been recovered. He further submitted that the prosecution has proved the case against the respondent-accused beyond reasonable doubt and thereby, the learned trial Judge has committed error in acquitting the respondent-accused. It is, therefore, urged that the present appeal requires to be allowed. 5. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the learned trial Court have been very clearly explained by the Hon'ble Apex Court in catena of decisions. In the case of State of Goa vs. Sanjay Thakran and Another, (2007) 3 SCC 755 , it has been held by the Hon'ble Apex Court in Para 16 as under: “16. In the case of State of Goa vs. Sanjay Thakran and Another, (2007) 3 SCC 755 , it has been held by the Hon'ble Apex Court in Para 16 as under: “16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.” 6. Same view has been taken by the Apex Court in State of Uttar Pradesh vs. Ram Veer Singh and Others, 2007 AIR SCW 5553 and Girja Prasad (Dead) by LRs. vs. State of M.P. 2007 AIR SCW 5589. 7. I have gone through the impugned judgment and order passed by the learned trial Court together with oral as well as documentary evidence and also considered submissions made by learned Additional Public Prosecutor for the appellant-State, in light of the principles laid down by the Hon'ble Apex Court in the aforesaid decisions. 8. Referring to the evidences of PW-6 Parthiji Kachraji Solanki, PSI at Exh.40 and PW-2 Pravinchandra Harilal at Exh.2, it is clear that on receiving the information, they proceeded with the raid. 8. Referring to the evidences of PW-6 Parthiji Kachraji Solanki, PSI at Exh.40 and PW-2 Pravinchandra Harilal at Exh.2, it is clear that on receiving the information, they proceeded with the raid. It would be relevant to state that the said information was required to be reduced in writing in the relevant register and thereafter, forwarded to the higher official under Section-42 of the Act, however, it appears that there was no such compliance of mandatory provision of Section-42 of the Act as said information did not reduce in writing and a copy of the same did not forward to the higher official forthwith. Perusing the entire evidence, it is clear that Sections 50 and 55 of the Act have not been complied with in true letter and spirit. Further, licence at Exh.40, which shows the permission to possess and transport of the poppy capsules, which was issued in the name of Vajir Deva Bhana, brother of the respondent-accused, residing at village Sanval, Taluka: Vav, has come on record. As per the said licence, Vajir Deva Bhana can possess 2 kg. and 500 grams during the calender month, however, the prosecution has not recorded the statement of said Vajir Deva Bhana. The above referred facts have been dealt with by the learned Trial Judge at length. Under the circumstances, in my view, non-service of the notice under Section 13(2) is nothing, but the breach of mandatory provisions of the Act and which goes against the prosecution by all force. 9. It appears that the learned trial Court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused, as aforesaid. This Court is, therefore, of the opinion that the learned trial Court was completely justified in acquitting the accused of the charges levelled against him. Under the circumstances, the findings recorded by the learned trial Court are just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same. 10. Under the circumstances, the findings recorded by the learned trial Court are just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same. 10. Learned Additional Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the learned trial Court or that the approach of the learned trial Court is vitiated by some manifest illegality or that the decision is perverse or that the learned trial Court has ignored the material evidence on record. 11. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 30.06.2003 passed by the learned Special Sessions Judge, Banaskantha, Deesa, in Special Case No. 79 of 1997. Bail bonds shall stand cancelled. Registry to sent back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same. Appeal dismissed.