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2016 DIGILAW 1124 (GUJ)

STATE OF GUJARAT v. ASHOKBHAI POPATBHAI CHUNARA

2016-06-16

R.P.DHOLARIA

body2016
JUDGMENT : R.P.DHOLARIA, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1) (3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 29.7.2004 rendered by learned Additional Sessions Judge, (F.T.C.No.6) Ahmedabad (Rural), Ahmedabad in Special NDPS Case No.158 of 2000. 2. The short facts giving rise to the present appeal are that the present respondent has given information to the complainant that Bachu Puna Chunara, resident of village Kavitha is dealing in illegal narcotic drugs i.e. Ganja. Therefore, on the basis of the aforesaid information, raid was arranged along with the respondent accused at the house of Bachu Puna Chunara and during the raid, muddamal Ganja to the extent of 270 gms was found from the house of Bachu Puna Chunara, samples were drawn and sent it to FSL. It is alleged that as per the report of FSL, as it was found that muddamal narcotic substance is nothing but Ganja, the complaint came to be lodged against the respondent accused on giving false and fabricated information to the complainant that Bachu Puna Chunara is dealing in illegal activities of selling Ganja, the respondent accused has committed an offence under sections 58(2), 20(b)(2)(a) of the NDPS Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondent accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined 9 witnesses and also produced documentary evidences such as panchnama of the place of muddamal Exh.10, despatch note Exh.25, original complaint of the complainant Exh.32 etc. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 5.1 Mr.L.B.Dabhi, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that learned trial Court failed to appreciate the evidence on record and wrongfully acquitted the accused though ample evidence is available on record. In his submission, therefore, learned trial Court ought to have convicted the accused and hence, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondent is required to be convicted, as such. 6. On the other-hand, Mr. Vijay Shah, learned Advocate for the respondent accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Shah further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr.L.B.Dabhi, learned APP for the appellant State and Mr.Vijay Shah, learned advocate for the respondent accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 7. This Court has heard Mr.L.B.Dabhi, learned APP for the appellant State and Mr.Vijay Shah, learned advocate for the respondent accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. The case on hand is unusual case wherein the present respondent himself had given secret information by presenting himself to the office of the Narcotic Cell and he had given detailed description that one person i.e. Bachu Puna Chunara who is residing in the agricultural field situated in village Kavitha, having constructed house is dealing in large scale Ganja and used to sell for about 5 to 10 kg per day. It is further stated by the present respondent that the said person is storing the same in his house and he had given the specific information that Bachu Chunara is keeping the same in the room as well as on roof of the room and if the raid is carried out, police will found at least 10 kg Ganja from his house. The aforesaid information was recorded in the Station Diary and thereafter raiding party marched for raid at the place as per the details given by the respondent accused and carried out the raid. During the raid, the police official did not found anything from the room shown by the respondent, however, the present respondent figured at the roof which is in between the house of the present respondent and Bachu Chunara who alleged to have stored Ganja. During the course of raid, around 270 gms leaves of cannabis were recovered and the same were sent for chemical analysis and it were found to be leaves of cannabis. 8.1 It is very interesting to note that during the course of investigation and raid, the informant who had given the intelligence as regards to alleged offence turned to be a “planter” of the aforesaid leaves of cannabis in order to settle the score as regards to family dispute which was subsisting regarding partition of land and the said dispute was also pending before the revenue authority as well as even before this High Court. In that view of the matter, a person who gave intelligence himself was charge-sheeted as “planter” of the aforesaid leaves of cannabis and therefore, he was tried and acquitted thereafter by learned trial Court. In that view of the matter, a person who gave intelligence himself was charge-sheeted as “planter” of the aforesaid leaves of cannabis and therefore, he was tried and acquitted thereafter by learned trial Court. 8.2 On overall analysis of the evidence on record, it is clear that the prosecution has examined 9 witnesses, out of which panch witnesses did not support the case of the prosecution. Taking into consideration the evidence of PW 6-Bachubhai Punabhai Chuanara at Exh.36, it is clear that during the course of raid, the present respondent was also accompanied with raiding party and he pointed out the place which was even within the access of the respondent as well as witness Bachubhai Chunara and the quantity which was found during the course of raid was only 270 gms. However, the respondent gave intelligence that there may be huge quantity of at least 10 kg of Ganja and PW 6 used to deal with the same in a day for about 10 kg and used to store the huge quantity of Ganja in his house. The said information was proved to be false and as quantity of leaves of cannabis were recovered which were within the access of the respondent and taking into consideration, his intelligence, raiding party thought it proper to charge against the present respondent instead of PW 6 Bachubhai Punabhai Chunara who alleged to have stored Ganja as per the intelligence given by the present respondent. 8.3 On going through the entire evidence on record, it is noticed that during the course of trial, none of the witness has deposed that they have seen the aforesaid quantity of 270 gms leaves of cannabis planted by the present respondent. In that view of the matter, the case of the prosecution rests upon the apprehension or presumption advanced by PW 6 Bachubhai Punabhai Chunara. 8.4 On overall evaluation of the evidence on record, it is clear that except the present respondent, other person had also access to the place from where 270 gms leaves of cannabis were recovered and the allegation was levelled against him by PW 6 and no other evidence is available on record to link the accused with planting the aforesaid 270 gms leaves of cannabis at the place from where the raiding party recovered. Merely that sort of evidence is not sufficient to link the present respondent with the crime in question for planting the aforesaid 270 gms leaves of cannabis and he cannot be convicted on the basis of the aforesaid nature of evidence. Under the circumstances, learned trial Court has rightly acquitted the respondent accused considering the nature of evidence on record. 9. 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. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 11. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.