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2014 DIGILAW 1147 (GUJ)

State of Gujarat v. Omkardas Parshuram Bairagi

2014-12-05

Z.K.SAIYED

body2014
JUDGMENT : Z.K. Saiyed, J. The present acquittal appeals have been filed by the appellant-original complainant, State of Gujarat under Section 378 of the Cr. P.C., against the Judgment and order dated 31.08.1994 rendered by the learned Additional Sessions Judge, Banaskantha, Palanpur, in Sessions Case Nos. 70 and 71 of 1992. The said cases were registered against the present respondents-original accused for the offence under Section 17, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985. 2. According to the prosecution case, complainant M. M.Parmar was serving as Police Sub-Inspector at Himatnagar, Sabarkantha and was investigating the offence of prohibition bearing registration C.R.No.19 of 1992 of Vijaunagar Police Station for the offences of the NDPS Act. During the said investigation, accused No.1 Omkardas Parshuram Beragi was arrested and was produced before the Judicial Magistrate First Class, Khedbramha and remand was obtained and during the remand, it was disclosed by him that he has purchased the said opium from Rajasthan and he was going to sell that opium to Sabarkantha and before 20 days, he sold the opium to Sompuri Halabharthi Bava and Gemarpuri Halabharthi Bava respondent No.2 herein, resident of Pipli village, Taluka: Palanpur. Both the brothers-respondents-accused were carrying out such illegal business from their house. Therefore, Mr.Parmar, PSI, on 13.03.1992 called members of raiding party at his office and came to Palanpur and on 14.03.1992, PSI, Parmar has informed PSI, Vaghela and District Superintendent was also informed and they all went to Village Pipli, Taluka:Palanpur to respondent-accused No.2, who run away from the place. Thereafter, a search was carried out of the house of the respondents-accused and from one Tiffin box, one bag was found and from that bag, opium was recovered and Wight and measurement was undertaken. Thereafter, panchnama was of seizure was drawn and muddamal was seized at the place of offence and seal was also applied on the same. The complainant filed complaint filed complaint against the respondents-accused to PSI of Palanpur Taluka Police Station for the offences punishable under Sections 17, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and PSI, Vaghela, sent the forwarding letter, muddamal and complaint to Palanpur Taluka Police Station. Thereafter, the investigation was handed over to Mr.Vaghela, PSI. Then, statement of the witnesses were recorded and respondents-accused were arrested. Thereafter, the investigation was handed over to Mr.Vaghela, PSI. Then, statement of the witnesses were recorded and respondents-accused were arrested. Then, he filed charge-sheet against the respondents-accused before the learned Judicial Magistrate First Class, Palanpur for the said alleged offences. As the said cases were exclusively triable by the Court of Sessions, learned JMFC, Palanpur committed the said cases to the Court of Sessions, Banaskantha, Palanpur, which were registered as Sessions Case Nos. 70 and 71 of 1992. 3. On the basis of above allegations, charge was framed vide Exh.4 and read-over and explained to the accused for the offences punishable under Section 17, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985. The respondents-accused pleaded not guilty to the charge and claimed to be tried. 4. Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the respondents-accused that they were innocent and they have not committed any offence. The respondents-accused have denied the case of the prosecution and submitted that a false case is filed against them. 5. In support of the prosecution case, prosecution has examined following oral evidences : Sr. No. Exh. Name of Witness 1 10 Jethabhai Vaghjibhai Uplana 2 15 Suresshkumar Fulabhai Padhiyar 3 19 Rajendrakumar Umakant Vyas 4 21 Hirabhai Muljibhai Parmar 5 27 Jethiben Pamandas 6 28 Laxminarayah Shivlal 7 30 Rameshbhai Dunagarbhai 8 32 Laxmansinh Chatursinh 9 35 Kashiram Dalsukhbhai 10 38 Becharbhai Khanabhai 11 39 Mohammed Ayubkhan Sherkhan 12 40 Amrutlal Nathalal Patel 13 42 Delipsing Gatorsing Radheshyam 14 46 Ashokkumar Ishwarbhai Patel 6. In support of the prosecution case, the prosecution has produced several documentary evidences like complainant at Exh.22, panchanma at Exh.23 etc. 7. Thereafter, arguments of both the sides were heard by the learned trial Judge at length and discussed oral and documentary evidence produced on record and passed the acquittal order in favour of the respondents-accused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 31.08.1994 rendered by the learned Additional Sessions Judge, Banaskantha, Palanpur, in Sessions Case Nos. 70 and 71 of 1992, the appellant-State has preferred the present appeal before this Court. 8. Heard Mr. Hardik Soni, learned APP for the appellant-State and Mr.M.C.Barot, learned advocate for respondent No.2 accused. 70 and 71 of 1992, the appellant-State has preferred the present appeal before this Court. 8. Heard Mr. Hardik Soni, learned APP for the appellant-State and Mr.M.C.Barot, learned advocate for respondent No.2 accused. Notice issued by this Court was duly served to respondent No.2, but none appeared. 9. Mr. Hardik Soni has contended that before the Police Officer, it was disclosed by the respondent-accused that co-accused brother was involved in the business of NDPS Act and both the accused were carrying the said business. He also contended that from the evidence of panchas and members of raiding party, prosecution has proved its case beyond reasonable doubt, but learned trial Judge has wrongly observed that prosecution has not produced any cogent evidence in support of its case. Lastly, he contended that judgment and order of the acquittal is improper and learned trial Judge has committed grave error in acquitting the respondents-accused and therefore, he prayed to quash and set aside the judgment and order of acquittal. 10. Mr.M.C.Barot, learned advocate for respondent No.2 accused has argued that looking to the evidence of PSI, accused-Omkardas Parshuram, has disclosed before the PSI during the interrogation that Gemarpuri Halabharthi was co-accused in this case. He further contended that statement and confession made before the PSI by the accused regarding the co-accused, cannot be considered as confessional statement against the co-accused. He further contended that in cases of NDPS Act, mandatory provisions are required to be followed by the raiding party. In the present case, it is not proved beyond reasonable doubt by the prosecution that how and in which circumstances, mandatory provisions of law were followed. He then contended that the learned trial Judge has not committed any error in acquitting the respondent No.2 accused and therefore, he prayed to confirm the order of acquittal. 11. I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the respondent-accused. I have also considered the submissions made by learned advocates for both the parties. 12. I have perused the evidence produced on record. From the evidence, it appears that as per the say of PSI, during the interrogation, he has received information from the co-accused. I have also considered the submissions made by learned advocates for both the parties. 12. I have perused the evidence produced on record. From the evidence, it appears that as per the say of PSI, during the interrogation, he has received information from the co-accused. He has also tried to establish before the learned trial Judge that the investigation was carried out as per the statement made by co-accused. From the perusal of the papers, it appears that prosecution has tried to establish that statement made by the co-accused is confessional statement, but from the evidence of panch and members of raiding party, the prosecution could not establish that whether it was properly followed by the members of raiding party or not as per the mandatory provisions of NDPS. In result of that issue, learned trial Judge has rightly observed that mandatory provisions are not followed and prosecution has not proved its case beyond reasonable doubt. In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondents-accused. There in no substance in the appeal and the arguments made by the learned APP. Though learned APP has tried to establish his case, but the Court has not found any sufficient evidence to consider and entertain these appeals. 13. In a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. Reported in (2007)3 SCC 755 , the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed 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. 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." 14. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 15. In view of the above, the Appeals are hereby dismissed. The impugned judgment and order dated 31.08.1994 rendered by the learned Additional Sessions Judge, Banaskantha, Palanpur, in Sessions Case Nos. 70 and 71 of 1992, acquitting the respondents- accused are hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bonds shall stand cancelled. Appeals dismissed.