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2017 DIGILAW 851 (JK)

State Th. SHO P/S Bishnah v. Raj Kumar

2017-09-14

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl. (CR) 86/2017 Heard. After hearing learned senior Additional Advocate General 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 169 days in filing the appeal is made out. In the result, delay is condoned. Accordingly, the application for condonation of delay is disposed of. SLAA No. 86/2017 Heard. After hearing learned senior Additional Advocate General for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA No.86/2017 is allowed. Registry is directed to diarize the appeal as Criminal Acquittal Appeal today itself. Cr. Accquital Appeal This Criminal Acquittal Appeal is directed against the judgment dated 06.12.2016 passed by the trial Court, by which the respondents have been acquitted in respect of offence under Section 8, 20 of the Narcotic Drugs and Psychotropic Substances Act. 2. The prosecution story in nutshell is that on 11.02.2006 Inspector Deepak Raina, SHO Police Station, Bishnah along with a Police contingent, while patrolling at 7.45 p.m. at Kotli Charkan, found three persons namely, Mansa Ram, Labha Ram and Raj Kumar, out of whom Raj Kumar and Mansa Ram were carrying a bag. On seeing the police party Labha Ram taking advantage of darkness succeeded to escape, whereas, other two persons were nabbed and on search of the bag 4000 Paravan Spas Capsules and 20 bottles of corex were found from the possession of aforesaid two persons. Thereupon the police registered First Information Report for the commission of offence under Sections 8, 21, 22 of the Narcotic Drugs and Psychotropic Substances Act and after completion of the investigation Police filed the charge sheet in the trial Court against the respondents. The trial Court vide impugned judgment acquitted the respondents for the aforesaid offence. 3. Learned senior Additional Advocate General submitted that the trial Court has failed to appreciate the oral and documentary evidence available 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 respondents with the commission of the alleged offence. 4. We have considered the submissions made by learned senior Additional Advocate General for the appellant and have perused the record. It is further submitted that there was sufficient material on record to connect the respondents with the commission of the alleged offence. 4. We have considered the submissions made by learned senior Additional Advocate General for the appellant and have perused the record. Prosecution in order to prove its case examined PW2, Inspector Deepak Raina, PW 3 Inspector Naveen Sharma and PW 4 HC Victor Pal as prosecution witnesses even though the prosecution has cited 20 witnesses. In the testimony of three witnesses examined on behalf of the prosecution there are material contradictions with regard to the identity of the respondents. The Station House Officer stated that the respondents were not known to him and he did not know as to from whom the Investigating Officer had ascertained their names. The fact remained that he had himself named all the accused in his communication sent to the Police Station for lodging the First Information Report. PW-3 Inspector Naveen Sharma and Station House Officer both have stated that two of the respondents were holding a bag, whereas PW 4 Victor Pal firstly stated that the respondents were holding two polythene bags and then stated that the polythene bag was being held by both the respondents from sides. The Station House Officer in his cross-examination has stated that the capsules had been recovered as against his contention in his examination-in-chief that 20 corex bottles had also been seized in addition to the capsules. 5. Prosecution has failed to examine the Investigating Officer and Forensic Expert. Thus in the absence of the Investigating Officer and Forensic Expert, there is no material on record to hold that the seized material was contraband being psychotropic substance. 6. The trial Court has recorded the findings, which are based on careful scrutiny of the 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. (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.