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2017 DIGILAW 753 (JK)

State through P/s Bahu Fort v. Bashir Ahmed

2017-08-28

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. SLAA No.122/2013: After hearing learned Senior Additional Advocate General, we grant leave to appeal. Accordingly, SLAA No.122/2013 is allowed. Cr. Acq. Appeal No.201/2013: Heard. This criminal acquittal appeal has been filed against the judgment dated 29.06.2013 passed by the Trial Court by which the respondents have been acquitted in respect of the offences under Section 8/20 NDPS. 2. Facts giving rise to the filing of this appeal briefly stated are that on 01.12.2010 at 1645 hours, Incharge Police Post Narwal namely Sameer Jeelani while camping near Water point Yard No.2, Transport Nagar Narwal, sent a docket to Incharge Police Station Bahu Fort with the request to register-FIR for commission of offence under Section 8/20 of NDPS Act. It was stated in the aforesaid docket that two persons were found talking under suspicious condition in the area of Yard No.2, Transport Nagar, Narwal Jammu. They were carrying polythene carry packs in their hands. On seeing the police party they started hiding themselves behind the Truck having registration No.JK1B-2211. They were apprehended. After their identification, on search being carried out, Charas was found in their possession. The police thereafter carried out the investigation and filed the charge sheet against the respondents for offence under Section 8/20 of the NDPS Act. The Trial Court vide impugned judgment has acquitted the respondents of the offence alleged against them. 3. Learned Senior Additional Advocate General for the appellant submitted that the trial Court has failed to take into account the evidence on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. It is further submitted that there was enough material on record to show the involvement of the respondents in the commission of the aforesaid offence. 4. We have considered the submissions made by the learned Senior Additional Advocate General and have perused the record. The prosecution in order to prove its case has examined as many as 16 witnesses, whereas PW-Mohd Bashir, contrary to the prosecution story has stated before the Court that the accused were found boarding the truck and were asked to get down and on a check being conducted, they were found to be carrying 3 kg of Charas, whereas as per the prosecution case, the accused were found talking in suspicious condition in Yard No.2, Transport Nagar, Narwal, Jammu. It is also pertinent to mention here that weighing scales were not available on the spot. In the cross examination, the aforesaid witness has denied the fact that PW-Vinod Kumar was called on the spot and the Charas was got weighed by him. Similarly, PW- Raj Kumar has supported the version of Mohd. Bashir which again is contrary to the prosecution story. PW-Mohd Bashir has been declared hostile by the prosecution and nothing incriminating against the respondents could be elicited even from his cross examination. 5. PW-Sameer Jeelani has taken a clear-cut stand in his testimony that in his presence, the contraband was not weighed. PW-Jai Paul in his testimony has introduced the version that a civilian namely Vinod entered the truck along with SHO and the SHO has brought out the Charas from the truck. PW-Vinod Kumar has been declared hostile by the prosecution. 6. The prosecution has failed to show that the provisions of Section 50 of the NDPS Act were complied with. The contraband was also not sent to the FSL as no evidence has been examined to show that the samples were sent to the FSL for analysis and expert opinion. Mr. Rohit Koul, FSL expert has stated his evidence that neither the specimen seal impression of Naib Tehsildar nor of the IO was received in the sealed envelope by the FSL. Therefore, it is doubtful whether the samples and seals were sent to FSL for analysis and expert opinion. The provisions of Section 55 of the NDPS Act have also not been complied with which is fatal to the prosecution case. 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 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. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 ). 8. (See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 ). 8. From a 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.