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2017 DIGILAW 658 (JK)

State of J&K v. Parvez Ahmed

2017-08-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. In this acquittal appeal, the appellant assailed the validity of order dated 06.03.2006 passed by the trial Court by which respondents have been acquitted of the offence under Sections 8/20 Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as “the Act”). 2. The prosecution story, briefly stated is that on 31.07.2003, Station House Officer, Police Station, Doda along with police personnel including Dy.S.P. Operations and Headquarter were on patrol duty in Dhak Mohala, Doda. They received an information that respondents were dealing in the sale of “Charas” and were in possession of “Charas”, which was kept in their house. On this information, the house of the accused Abdul Hamid was cordoned and a raid was conducted, whereupon 3.5 Kg “charas” was recovered from the house of the accused, which was hidden under the cover of maize. Thereupon, an FIR for offence under Sections 8/20 of the Act was registered against the respondents. The police after completion of the investigation filed charge-sheet against the respondents. The trial Court vide impugned judgment acquitted the respondents of the offence alleged against them. 3. The prosecution in order to prove its case examined Mohd. Afzal, Javed Iqbal, Zaheed Naseem, Kulbir Singh, Prithvi Raj, Mohd. Amin and Kuldeep Kumar Sharma, as prosecution witnesses. The respondents examined one Attaullah and Ghulam Nabi as defence witnesses. 4. Admittedly, on 31.07.2003 an intimation was received by the police patrolling party that in the house of the Abdul Hamid, 3.5 Kg “charas” is stored illegally. However, the respondents were not informed about their right to get themselves searched in the presence of any gazetted officer or magistrate. In other words, there is violation of provisions of Section 50(1) of the Act, which are mandatory in nature. 5. It is pertinent to note that witnesses to the recovery, namely, Mohd. Afzal and Javed Iqbal have been declared hostile and nothing incriminating has even come out from their cross-examination. It is also pertinent to note that from the evidence adduced by the prosecution, it is evident that the family of the accused comprises of 10/12 members and each member of the family has access to each room of the house and therefore, prosecution has failed to prove that the accused were in exclusive possession of the contraband material. 6. PW-Mohd. 6. PW-Mohd. Amin Khan, Assistant Sub Inspector of Police, who was cited as witness to the seizure memo has categorically deposed that he along with other police constables remained on the duty of cordoning the house of the accused and no recovery of “charas” was effected in his presence but he was simply asked to sign the seizure memo of the contraband. It is pertinent to note that none of the prosecution witness has supported the case of the prosecution. Besides that, it is pertinent to mention here that there is non-compliance of the provisions of Section 42 read with Section 50 of the Act while conducting search and seizure of the alleged contraband. The trial Court based on the meticulous appreciation of evidence on record has found that the prosecution has failed to prove the offence alleged against the respondents beyond reasonable doubt. 7. The trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse (see Ram Swaroop and others v. State of Rajasthan; (2004) 13 SCC 134 , Vijay Kumar v. State by Inspector General; (2009) 12 SCC 629 and Upendra Pradhan v. State of Orissa; (2015) 11 SCC 124 . 8. From perusal of the judgment of the trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.