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2017 DIGILAW 447 (ALL)

State of U. P. v. Riyaj

2017-02-07

HARSH KUMAR

body2017
JUDGMENT : Harsh Kumar, J. 1. Heard learned A.G.A. and perused the record. 2. The present appeal has been filed against the acquittal of respondent Riyaj of the charges under Section 22 of N.D.P.S. Act. 3. Upon hearing learned A.G.A. and perusal of record as well as the impugned order, I find that as per prosecution case, on 30.5.2014 the police party apprehended Abdul Rasheed at about 3:35 p.m. from whom no recovery is alleged to have been made. It is alleged that upon disclosure made by Abdul Rasheed that he deals with the business of diazepam and smack on the financial support given by respondent Mohd. Shafi @ Guddu and Riyaz son of Ishaq and upon his taking the police party to the house of Riyaz and Mohd. Shafi @ Guddu, when seeing the police party Mohd. Shafi @ Guddu and Riyaz managed to flee away, Abdul Rasheed got recovered seven big packs weighing 47 gms. and 20 small packs weighing 9 gms. of smack and a polythene bag containing 700 gms. of diazepam powder, which were hanging on the walls of the room in the house of accused. 4. Undisputedly the respondent was not caught on the spot and no recovery of any prohibited contraband is alleged to have been made from his possession. At internal page 11 of the impugned judgment the trial court has categorically analysed the evidence on record, wherein it has been held by trial court that as per the site-plan of the house where from the recovery was made, the house belonged to Mohd. Riyaz. There is no iota of evidence on record to show that Mohd. Riyaz, Mohd. Shafi @ Guddu and Abdul Rasheed were related to each other in any manner whatsoever or were dealing with narcotics to any extent. In the circumstances the alleged recovery at the pointing of Abdul Rasheed from the house of Mohd Riyaj even if admitted, may not be sufficient to prosecute the respondent Riyaj as no recovery is alleged to have been made from the person or possession of respondent Riyaj. It is also pertinent to mention that the recovered material was neither produced nor proved before the trial court and so also the correctness of impugned order of acquittal may not be assailed. 5. It is also pertinent to mention that the recovered material was neither produced nor proved before the trial court and so also the correctness of impugned order of acquittal may not be assailed. 5. The trial court has also held that compliance of provisions of Sections 42, 52, 57 of N.D.P.S. Act was not made. It is pertinent to mention that undisputedly the recovery is not alleged to have been made from the possession of respondent or in his presence from the house in question which is alleged to be belonging to the respondent. As mentioned above the recovery is alleged to have been made from the house at the pointing of Abdul Rasheed and recovery of prohibited contraband was made from the packets hanging on the walls of the room but the respondent was not present at the spot. The trial court has also held that the prosecution has failed to prove that the house, from which recovery was allegedly made, belonged to respondent. Moreover, the Investigating Officer of the case was working under subordination of the first informant S.H.O. Vijay Bahadur Singh as I.O. was working in the same police station under S.H.O. Vijay Bahadur Singh and so the investigation may not be considered to be fair. The recovered prohibited contraband was not produced and proved from the trial court. 6. It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non-consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified". 7. In view of the discussions made above, I have come to the conclusion that the learned A.G.A. has failed to show that the learned trial court did not consider any evidence on record or has misread the evidence on record or to show any legal infirmity, incorrectness or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. I find that virtually the prosecution has no case against the respondent and recommendation of appeal in such matters is quite unwarranted. The application u/s 378 (4) Cr.P.C. has no force and is liable to be dismissed. 8. The application u/s 378 (3) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed. 9. Let a copy of this order be sent to Principal Secretary, Law, Government of Uttar Pradesh, Lucknow.