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2017 DIGILAW 776 (JK)

State of J&K v. Farid Ahmed

2017-08-31

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl (Cr) No.105/2013 Heard. After hearing learned counsel for the appellant and for the reasons assigned in the application, which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of 118 days in filing the criminal acquittal appeal is made out. In the result, delay is condoned. Accordingly, the application for condonation of delay is disposed of. SLAA No.48/2013 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. Cr. Acquittal Appeal No. 131/2013 This Criminal Acquittal Appeal has been preferred against the judgment dated 28.01.2013 passed by the trial court, by which the respondents have been acquitted of offence under sections 08/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution story in a nutshell is that on 09.07.2009 at about 7.40 a.m. a vehicle bearing registration No. JK01E-2790 was intercepted at the Export Inspectors Counter Toll Post, Lakhanpur. The driver of the vehicle, namely, respondent No. 1, declared the vehicle loaded with poplar veneer core of M/s Genuine veneer industries, Gowharpura, Chadoora District Budgam. The vehicle was accordingly marked for physical checkup. During the checkup, 36 jute bags and one HDPE bag of alleged poppy straw powder (Bhuki) were found concealed in the vehicle beneath the bundles of poplar veneer core. Thereupon, First Information Report was lodged against the respondents and investigation commenced. After completion of the investigation, charge sheet was presented in the Court against the respondents for the offences as aforesaid. 3. The prosecution in order to prove the case has examined Mr. B.A. Saraf, Sanjay Kumar Bhat, Gopal Kumar, Naresh Gupta, Manohar Lal Sharma, Gurmohan Singh Sushil Bha, Rohit Koul, Bishamber Singh, Khursheed Ahmad Farooquee, Rakesh Kuar, Ram Paul and Sanjeev Khajuria as witnesses. The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 4. 3. The prosecution in order to prove the case has examined Mr. B.A. Saraf, Sanjay Kumar Bhat, Gopal Kumar, Naresh Gupta, Manohar Lal Sharma, Gurmohan Singh Sushil Bha, Rohit Koul, Bishamber Singh, Khursheed Ahmad Farooquee, Rakesh Kuar, Ram Paul and Sanjeev Khajuria as witnesses. The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 4. Learned Additional Advocate General for the appellant while inviting attention of this Court to the evidence of PW Rohit Koul, Chemical Examiner has submitted that from the report submitted by the Chemical Examiner, it is evident that sample of the seized contraband substance falls under item No. 77 of the table of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the trial court has grossly erred in acquitting the respondents. 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the close scrutiny of the evidence of Rohit Koul, Chemical Examiner, we find that the Chemical examiner only found that the exhibits belonged to Poppy plant and morphine was detected in them. The chemical examiner has not given any opinion as to whether the parts of the plant belonged to papaver somnifeum or not. In the instant case, the chemical examiner has not reported whether he conducted any test to determine the species of the plant or the percentage of the morphine. Merely stating that morphine was found in the seized contraband without spelling out the contents of the morphine found will not fasten criminal liability on the respondents. The Supreme Court in the case of Amar Singh Ramjibhai Barot vs. State of Gujrat, (2008) 7 SCC 550 has held that Forensic Science Laboratory (FSL) should not only give its opinion as to what is the substance but should indicate that the substance is a contraband by indicating what is contained in the substance. In the instance case, chemical examiner has failed to indicate that the substance is contraband. 6. The trial court has recorded the findings, which are based on meticulous appreciation of evidence available on record. In the instance case, chemical examiner has failed to indicate that the substance is contraband. 6. 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. 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.