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2016 DIGILAW 521 (GUJ)

State of Gujarat v. Ramesh Kashinath

2016-03-03

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 27.08.1997 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 244/1995 whereby the respondents were acquitted for the offences punishable under Sections 20 and29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to in short as 'the NDPS Act'). 2. The case in brief is as under:- 2.1. It is the case of the prosecution that Sukhdevsinh Surendrasinh Chudasma, Police Inspector in D.C.B. (Detection of Crime Branch) received information on 29.10.1995 that the accused - Jabardan Govind and Mahesh Govind involved in crimes under Section 302 of the Indian Penal Code registered in 'C' Division Police Station, Rajkot were to come from Gondal to Rajkot and therefore, to arrest them Sukhdevsinh Chudasma proceeded to the junction of Rajkot - Gondal Road and Ahmedabad to Gondal Highway Bypass Road, alongwith other police staff members. There, they noticed the present two accused coming to Rajkot City and one of them had a black coloured suit case. On seeing the police jeep of the Police Inspector Mr. Sukhdevsinh Chudasma, the accused herein are alleged to have turned back. On suspicion, the police stopped the accused. Two panchas were called and in presence of two panchas, the Police Inspector Mr. Sukhdevsinh Chudasma searched the persons of both the accused. The police found one green coloured plastic bag containing charas. Mr. Sukhdevsinh Chudasma sent one police constable - Rajendrasinh to bring the balance and weights and another police constable - Nirmalsinh to bring the articles for sealing the samples from the DCB Office. The charas found from the possession of the accused was weighed, which came to 1 Kg. and 720 grams and it was sealed in the presence of the panchas. On further search, two identity card were also recovered from the possession of the accused. The Police Inspector Mr. Sukhdevsinh Chudasma made a Rojnama on the spot, a copy of the Rojnama was given to the accused and the signatures of both the accused were taken on the Rojnama. 2.2. Thereafter, a complaint was lodged in the Rajkot Taluka Police Station. The muddamal was sent to the Forensic Science Laboratory at Junagadh and it was found that the material was 'charas' as per the report of the Chemical Analyser. 2.2. Thereafter, a complaint was lodged in the Rajkot Taluka Police Station. The muddamal was sent to the Forensic Science Laboratory at Junagadh and it was found that the material was 'charas' as per the report of the Chemical Analyser. The Police Inspector Mr. Sukhdevsinh Chudasma conducted the investigation, record the statement of the witnesses and thereafter, the chargesheet was filed against both the accused. The learned Additional Sessions Judge, Rajkot after considering the case of the prosecution framed the charge at Exhibit 1 against both the accused under Sections 20 and 29 of the NDPS Act. The accused pleaded not guilty to the charges and therefore, the evidence of the prosecution was recorded. 2.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exh. Panch witness Rameshkumar Ashandas 6 Police constable Sanatkumar Vishnuprasad Baxi 8 Vasantkumar Chhaganlal 9 Police constable Rajendrasinh Vijesinh Jadeja 10 Police constable Nirmalsinh Digvijaysinh Zala 11 Jagdishbhai Parsottambhai 12 Aryendrakumar Siyaram Sharma, Police Station Officer in Rajkot Taluka police station 13 The prosecution also relied upon various documentary evidences. 2.4. At the end of the trial, further statement of the accused under Section 313of the Code of Criminal Procedure was recorded in which the respondents pleaded not guilty and stated that they have been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present Appeal has been filed by the State, as aforesaid. 3. Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has taken this Court to evidence which has surfaced on record and has submitted that the presence of the accused are proved. It is further submitted that the learned Judge has failed to appreciate that the search of the above charas was made all of a sudden without any previous information and therefore, the mandatory provisions of Section 42 and 50 of the NDPS Act were not complied with. It is also submitted that considering the evidence of the complainant and other evidences led by the panch witnesses, the prosecution has successfully proved its case against the respondents accused herein. It is also submitted that considering the evidence of the complainant and other evidences led by the panch witnesses, the prosecution has successfully proved its case against the respondents accused herein. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge qua the acquittal of the respondents should be upturned by this Court. 4. On the other hand, learned Advocate appearing for the respondents accused Mr. Rahul R. Dholakia has drawn the attention of this Court to the judgment and order of the learned Sessions Judge, especially at Paragraph 12 and has stated that the necessary procedures were not followed by the concerned authorities at the time of seizure of 'charas'. It is further submitted that the complainant - Police Inspector Sukhdevsinh Chudasma had lodged the complaint and conducted the investigation and also filed the chargesheet and under the circumstances, little extra care is required to the case of the prosecution so that an innocent person may not be convicted. Learned Advocate for the respondents has placed reliance on the decision of the Hon'ble Apex Court rendered in Criminal Appeal No. 652/2012 in the case of Union of India vs. Mohanal & Anr., decided on 28.01.2016. Relevant paragraph No. 20(1) of the said decision reads as under:- "(1) No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading 'seizure and sampling'. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order." Therefore, it is submitted by learned Advocate for the respondents that this Court should not interfere in the well reasoned judgment and order of the learned Sessions Judge. 5. In the case of M.S. Narayana Menon @ Mani Vs. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order." Therefore, it is submitted by learned Advocate for the respondents that this Court should not interfere in the well reasoned judgment and order of the learned Sessions Judge. 5. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39 , the Apex Court has narrated about 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. 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." Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007) 4 S.C.C. 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. [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. [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." Thus, it is a settled principle that while exercising appellate power, even 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. Even in the case of State of Goa V. Sanjay Thakran & Anr., reported in (2007) 3 S.C.C. 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. 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." Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of M.P., reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. In the case of Luna Ram Vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 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. 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." Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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 leveled against them. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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 leveled 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 34of IPC and awarded RI for life. Since counsel for the appellant 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 re-appreciate 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write 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 Vs. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in 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." Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66. 6. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, it surfaces on record that the prosecution has miserably failed to prove its case against the respondents. It is not in dispute that the procedure as envisaged under the NDPS Act were not followed while the seizures were made. In addition, the Hon'ble Apex Court in the decision of Union of India (supra) has laid out guidelines in respect of seizures of such material and necessary procedures to be followed. Apart from that, the learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. In that view of the matter, we are in complete agreement with the reasons recorded by the learned trial court and in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 7. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 27.08.1997 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 244/1995 stands confirmed. Record and proceedings be sent to the concerned Trial court forthwith.