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2014 DIGILAW 926 (GUJ)

State of Gujarat v. Kanaiyaprasad Saryug Yadav

2014-08-14

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 (for short Cr.P.C. 1973) being aggrieved and dissatisfied with the judgment and order dated 30.10.1996 passed by the learned Additional City Sessions Judge, Court No. 11, Ahmedabad in Sessions Case 437 of 1995, whereby the respondent- original accused has been acquitted of the charges levelled against him. 2. Short facts of the case are that on 30.09.1995, Mr. N.N. Pathan, PI, Narcotic Cell, CID Crime, Ahmedabad received information that respondent-accused wearing black pant and lining shirt with Charas in cotton bag was to pass from Naroda to Narol Highway through Soni-in-Chawl. On receiving the said information, Mr. N.N. Pathan, PI, informed the Police Sub-Inspector, Narcotic Cell. Thereafter, he called the Panchas and policemen and after completing all formalities, he told them to stand and watch at the said place. When the respondent-accused as described above came there, he was stopped, his name was asked and thereafter his search was made. During the search, charas was found from him and the same was sealed and thereafter, necessary panchana was carried out and Mr. N.N. Pathan, PI, Narcotic Cell, CID Crime, Ahmedabad filed a complaint against the respondent- accused for the offences punishable under Sections 20(b)(i) and 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the NDPS Act for short). 2.1 At the end of investigation and on the basis of material collected against the accused, since a prima facie case was made out against the accused, 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 5 witnesses and also produced certain documentary evidences. 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. 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, giving benefit of doubt, which is giving rise to the present appeal. 3. Heard Mr. K.L. Pandya, learned Additional Public Prosecutor, for the appellant-State. The accused denied involvement in the crime. 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, giving benefit of doubt, which is giving rise to the present appeal. 3. Heard Mr. K.L. Pandya, learned Additional Public Prosecutor, for the appellant-State. It appears that though notice of admission issued by this Court was duly served on the respondent-original accused, he did not remain present 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 further submitted that the learned trial Court has erred in acquitting the respondent-accused mainly on the ground that the panch slip was not signed by the panchas and the same was not properly pasted on the outer cover of the packed muddamal by the Investigating Officer and therefore, there were chances of tampering with the muddamal. He then submitted that the learned trial Court ought to have appreciated that there was no evidence on record to show that there was enmity between the respondent-accused and the Investigating Officer and the Investigating Officer was having any personal interest in the said case. He submitted that on 30.09.1995, the raid was carried out and the offence was registered at 12:30 p.m. and the muddamal reached office of FSL on the same day prior to 6:00 p.m. and hence, question of tampering with the muddamal article does not arise at all. 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, in light of the principles laid down by the Hon'ble Apex Court in the aforesaid decisions. 8. I have carefully perused the panchanama dated 30.09.1995 and also gone through the depositions of the complainant-Shivshankar Devkumar Sharma Exh.18 and deposition of panch witness-Arvind Manubhai Magpure at Exh.19. It appears that the seized muddamal was a solid substance and twisted round seal and in stick form. If the FSL report Exh.32 is perused, the FSL official has received articles in 27 pieces which were marked as Nos. 1 to 27. It appears that the seized muddamal was a solid substance and twisted round seal and in stick form. If the FSL report Exh.32 is perused, the FSL official has received articles in 27 pieces which were marked as Nos. 1 to 27. So far as deposition of panch witness is concerned, it was 25 to 30 sticks which were like pencils in a sealed cover. Thus, considering the above evidence which has come on the record, the learned trial Court has come to the conclusion that panch slip signed by the panchas had not been properly pasted on the outer cover of the packed muddamal by the Investigating Officer and the said panch slip was put inside the packet, therefore, there were chances of tampering with the muddamal. Under the circumstances, on giving thoughtful consideration to the impugned judgment and order, there appears no illegality or perversity or arbitrariness in the conclusions arrived at and findings recorded by the learned trial Judge. 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 them. 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 30.10.1996 passed by the learned Additional City Sessions Judge, Court No. 11, Ahmedabad in Sessions Case 437 of 1995 is confirmed. Bail bonds, if any, 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.