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2015 DIGILAW 107 (GUJ)

State of Gujarat v. Asharaf Musa Meman (Bakali)

2015-01-28

K.J.THAKER

body2015
Judgment Kaushal Jayendra Thaker, J. 1. By way of this appeal, the appellant State has challenged the judgment and order of the learned Extra Asst. Sessions Judge, Jamnagar, dated 24.9.1996, rendered in Criminal Case No. 12 of 1996, whereby, the learned trial Court acquitted the original accused the respondent herein, of the charges under Sections 8, 20, 27, 29 of the NDPS Act, 1985. The brief facts of the case of the prosecution, as set out before the trial Court, are that the complainant, herein, received a secret information on 30.1.1996 that the original accused-respondent, herein, is selling narcotic substances illegally. Hence, a search was carried out at the residential premises of the respondent-accused, during which about 42 gms. of Charas was found from the residence of the accused. On being asked, the respondent-accused refused to have any permit to possess the same, and therefore, he was apprehended and a complaint was registered against him. Pursuant thereto, police carried out investigation into the alleged offence and on finding sufficient evidence, filed charge-sheet against respondent-accused. 2. At the time of trial, the prosecution, in support of its case, examined seven witnesses. 3. Apart from that the prosecution also produced as many as 15 documents to strengthen its case, viz. the complaint, recovery Panchnama, report of FSL, etc. 4. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal. 5. Learned APP for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, in as much as it failed to appreciate the material on record in its proper perspective. She submitted that taking into consideration the evidence of the witnesses examined by the prosecution as well as the documentary evidences produced by it, the trial Court ought to have held the accused guilty of the charges levelled against him. She, therefore, prayed that the appeal be allowed. 6. None is present for the respondent-accused. 7. I have heard learned APP for the appellant-State and perused the material on record with her assistance. 8. The case of the prosecution before the trial Court was that the respondent-accused was indulging in sell of narcotic substance without any permit and during the search, narcotic substance was found from the residential premises. None is present for the respondent-accused. 7. I have heard learned APP for the appellant-State and perused the material on record with her assistance. 8. The case of the prosecution before the trial Court was that the respondent-accused was indulging in sell of narcotic substance without any permit and during the search, narcotic substance was found from the residential premises. Now, here, the charge framed against the accused is for the contravention of the provisions of the NDPS Act and as per Section 50 of the NDPS Act, before carrying out a search, the officer concerned is required to inform the suspect about his right to get himself searched in the presence of a Gazetted Officer or a Magistrate. However, in the instant case, the complainant, himself, admitted in his deposition, that after recovering the narcotic substance, while drawing Panchnama in that regard, no Gazetted Officer was kept present. Further, from the record it also transpires that before carrying out the search, respondent-accused was given no option, with regard to carrying out search in the presence of either a Gazetted Officer or a Magistrate. Meaning thereby, Section 50 of the NDPS Act was not complied with by the prosecution. Not only that the prosecution also failed to produce any evidence, either in the form of document or oral evidence, to show that the premises, from which the prohibited substance was seized, was of the ownership of the respondent-accused. In above view of the matter, this Court has to look into the matter from the touchstone of the decisions of the Hon'ble Apex Court. 9. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., V (2006) SLT 252 : III (2006) CCR 76 (SC) : (2006) 6 SCC 39 , the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the Appellate Court should not interfere with the finding of acquittal recorded by the Court below." 10. Further, in the case of Chandrappa v. State of Karnataka, reported in II (2007) SLT 520 : I (2007) DLT (Crl.) 520 (SC) : I (2007) CCR 465 (SC) : (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, re-appreciate 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. 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." 11. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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. 12. Even in the case of State of Goa v. Sanjay Thakran & Anr., reported in III (2007) SLT 368 : II (2007) CCR 38 (SC) : (2007) 3 SCC 75, the Apex 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 characterized 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." 13. 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." 13. Similar principle has been laid down by the Apex Court in cases of State of U.P. v. Ram Veer Singh & Ors., IV (2007) CCR 1 (SC) : 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by L.Rs. v. State of M.P., 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 14. In the case of Luna Ram v. Bhupat Singh & Ors., reported in (2009) SCC 749, the Apex Court in paras 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye-witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 15. Even in a recent decision of the Apex Court in the case of Mookkiah & Anr. v. State, Rep. by the Inspector of Police, Tamil Nadu, reported in I (2013) SLT 103 : I (2013) CCR 293 (SC) : AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges levelled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since Counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first Appellate Court the High-Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the Court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal [vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 16. It is also a settled legal position that in acquittal appeals, the Appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, 1981 (SLT Soft) 482 : AIR 1981 SC 1417 , wherein it is held as under; "...This Court has observed in Girija Nandini Devi v. Bigendra Nandini Choudhary, (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 17. In a recent decision, the Hon'ble Apex Court in Shivasharanappa & Ors. In a recent decision, the Hon'ble Apex Court in Shivasharanappa & Ors. v. State of Karnataka, V (2013) SLT 648 : III (2013) CCR 27 (SC) : III (2013) DLT (Crl.) 172 (SC) : JT 2013 (7) SC 66 has held as under: "That Appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 18. Further, in the case of State of Punjab v. Madan Mohan Lal Verma, VII (2013) SLT 180 : III (2013) CCR 458 (SC) : III (2013) DLT (Crl.) 957 (SC) : (2013) 14 SCC 153 , the Apex Court has held as under: "The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the Court may look for independent corroboration before convincing the accused person." 19. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the Court may look for independent corroboration before convincing the accused person." 19. The aforesaid decisions will not permit this Court to take a different view, than, the one taken by the trial Court. In this case it is not proved beyond doubt that the complainant complied with provisions of Section 50 of the NDPS Act. Hence, the present appeal deserves to be dismissed. In the result, this appeal fails and is dismissed. The judgment and order of the trial Court, dated 24.9.1996, stands confirmed. Bail bonds of the accused, if any, on bail, stands discharged. R & P, if received, be sent back to the concerned trial Court, forthwith. Appeal Dismissed.