Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 768 (JK)

State of J. And K. v. Abdul Majid Mir

2017-08-30

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. 1. After hearing the learned counsel for the appellant, we deem it appropriate to grant leave to file Criminal Acquittal Appeal. Accordingly, leave is granted. SLAA is disposed of. Criminal Acquittal Appeal is taken up on board. Cri. Acquittal Appeal No. 103/2014 This Criminal Acquittal Appeal has been filed against the judgment, dated 20.09.2013 passed by the trial court, by which the respondent has been acquitted of offences under section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution story in a nutshell is that the In-charge Police Post, Peer Mitha, Jammu sent a docket from Circular Road, Jammu to Police Station City Jammu, wherein it was stated that while he along with other Police personnel was on patrolling duty, at about 7 p.m., they spotted a man carrying a polythene bag. On seeing them, he started fleeing away. Thereafter, the police party chased and nabbed him. On search being carried out, a polythene bag was found from him containing a ball of charas weighing 3 kgs. and 50 grams, out of which 50 grams was taken as sample for chemical examination and the remaining quantity of charas was sealed on spot. Thereupon, First Information Report No. 255/1998 for offences under Section 20 of the Act was registered and investigation commenced. After completion of the investigation, charge sheet was presented in the Court against the respondent for the offence as aforesaid. The trial court vide impugned judgment has acquitted the respondent of the aforesaid offences. 3. Learned Senior Additional Advocate General for the appellant submitted that the Forensic Expert, who was examined as PW-4, has supported the prosecution case and from his evidence, it is evident that contraband material was charas. It is further submitted that on the basis of minor discrepancy in the testimonies of the prosecution witnesses, the trial court has acquitted the accused. It is also submitted that the trial court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment. On the other hand, learned counsel for the respondent has supported the judgment passed by the trial court. 4. We have considered the submissions made by the learned counsel for the parties and have perused the record. On the other hand, learned counsel for the respondent has supported the judgment passed by the trial court. 4. We have considered the submissions made by the learned counsel for the parties and have perused the record. The seizure of the contraband was made on 26.11.1998, whereas it was produced before the Magistrate on 28.11.1998. From the testimony of PW-Sajad Amed Mir, it is evident that no FSL form was filled on spot. Despite that, the sample, which was sent to the FSL, there is no evidence as to the seal mark put there on and where it was kept for two days before producing it for resealing before the Magistrate and then sending to the FSL. Even the weight of the sample so taken is stated to be 50 grams by all the prosecution witnesses, whereas PW-Abdul Gani, who was handed over the sample on the same day it was resealed has clearly noted the weight of the contraband received by him as 41.228 grams, which is much below 50 grams. Therefore, it is not possible to infer whether the sample taken and forwarded to FSL was one and the same. Thus, the prosecution has failed to prove the identity of the sample. 5. 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 : (AIR 2009 SC 134) and Upendra Pradhan v. State of Orissa (2015) 11 SCC 124 : (2015 Cri LJ 2878 (SC)). 6. 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.