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2017 DIGILAW 767 (JK)

State through P/S Nowshera v. Sham Lal

2017-08-30

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl(CR)No.57/2017: Heard. For the reasons stated in the application which is duly supported by a affidavit, we find that sufficient cause for condoning the delay of 267 days in filing the application for leave to appeal is made out. Accordingly, the delay of 267 days in filing the application seeking leave to appeal is condoned. In the result, Condl(CR) No.57/2017 is allowed. SLAA No.60/2017: Heard. After hearing learned Government Advocate for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA No.60/2017 is allowed. Registry is directed to diarize the appeal as Criminal Acquittal Appeal. Cr.Accquital Appeal: This criminal acquittal appeal has been filed against the judgment dated 31.05.2016 by which the respondent has been acquitted in respect of offence under Section 8/22 NDPS Act. 2. The prosecution story in nutshell is that on 26.08.2010, the complainant namely Mohd. Shokat Inspector, SHO P/S Nowshera along with SDPO Nowshera, constable Raj Kumar, Updesh Kumar and Harbans Lal, SPOs were busy in checking of the vehicles. During the course of the search, the respondent was apprehended and search was conducted in the presence of SDPO, Nowshera and 200 Nos. of Capsules Pyremol Spasm recovered from the right pocket of his pant and 175 Capsules were recovered from the left pocket of his pant. On the basis of the aforesaid information, the first information report was lodged. The police after completion of the investigation filed the charge sheet against the respondent for offences alleged against him. 3. The prosecution in order to prove its case examined as many as 10 witnesses. The Trial Court after meticulous appreciation of evidence on record has acquitted the respondent of the offences alleged against him. 4. Learned Government Advocate for the appellant submitted that the Trial Court has failed to appreciate 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 sufficient material on record to connect the respondent with the commission of the alleged offence. 5. We have considered the submissions made by learned Government Advocate for the appellant and have perused the record. It is further submitted that there was sufficient material on record to connect the respondent with the commission of the alleged offence. 5. We have considered the submissions made by learned Government Advocate for the appellant and have perused the record. From the perusal of the evidence on record, it is evident that from the contraband material which was recovered from the respondent, 10 capsules were packaged and sealed on the spot for the purposes of chemical examination, however, the aforesaid sealed packet was not kept on the superdnama of someone by the Investigating Officer. It is also pertinent to mention here that from the statement of PW-Jalal Din, it is evident that he has not stated that any FSL form was filled by him on the spot. There is no material on record to suggest that where the contraband material was taken and kept after its seizure. No police malkhana register has been produced in the Court in order to prove the fact that the contraband items were deposited in the police malkhana. It is also pertinent to mention that Som Dutt, ASI who was examined as prosecution witness, was the best witness to explain as to why there was delay in sending the samples in view of the fact that the same were seized from 26.08.2010 and were sent for examination on 06.09.2010. However even the aforesaid witness has failed to explain the aforesaid aspect of the matter. 6. It is pertinent to note that the contraband material was not produced before the Court. The prosecution has maintained a stoic silence as to why the contraband material was not produced before the Court. 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 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 . 7. (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 . 7. 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.