Gujarat High Court
State Of Gujarat vs Zahiruddin @ Bhura ... on 18 February, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/1065/1996 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1065 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
STATE OF GUJARAT....Appellant(s)
Versus
ZAHIRUDDIN @ BHURA RASULBHAI....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 18/02/2015
ORAL JUDGMENT
1. Son of the respondent-accused is present before this Court, he states that the respondent is suffering from paralysis, therefore, he could not remain present before this Court. Looking to the fact that Page 1 of 8 R/CR.A/1065/1996 JUDGMENT this appeal is of 1996, the same is taken up for hearing today.
2. The present acquittal appeal has been filed by the appellant- State of Gujarat under Section 378 of the Criminal Procedure Code against the judgment and order dated 6.7.1996 rendered in Special Case No.88 of 1996 by the learned Special Judge, Bharuch, whereby the accused has been acquitted of the charges of offence under sections 8 (C) and 20 B (i) of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as "the Act").
3. The brief facts of the prosecution case are as under:
3.1 It is the case of the prosecution that when the complainant and other police personnel were busy in investigation of C.R.No.II-136 of 1995, they received information that the accused is selling Ganja in the Mangadi Bhagol Falia of Jambusar. Therefore, the PSI called panch witnesses and along with them went to the house of accused, where accused was present. After reaching the house of accused, the complainant introduced himself and other staff members and after the accused gave consent, they carried out search in the house of the accused. During search ganja was found from the house of the accused, it was weighing 50 grams. After following due procedure under the law, in presence of the panch witness, Ganja was sealed properly. Necessary formalities were completed and panchnama was prepared. Thereafter, a complaint was lodged against the accused in Page 2 of 8 R/CR.A/1065/1996 JUDGMENT Jambusar Police Station.
3.2 Thereafter, investigation was carried out and charge sheet was filed against the accused in the Court. Thereafter, charge was framed against the accused person, wherein the accused pleaded as not guilty. Therefore, the prosecution led oral as well as documentary evidence against the accused. Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him.
3.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, acquitted the respondent. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 6.7.1996 rendered in Special Case No.88 of 1996 by the learned Special Judge, Bharuch, the appellant-State has preferred the present appeal before this Court.
4. Heard learned APP, Ms.Monali Bhatt appearing for the appellant. Ms.Monali Bhatt, learned APP submitted that judgment and order of the learned trial Judge is not proper, legal and it is erroneous. She has also argued that the learned trial Judge has not considered the evidence of the witnesses and panchnama produced Page 3 of 8 R/CR.A/1065/1996 JUDGMENT by the prosecution. She submitted that the learned Judge has failed in interpreting the provisions of Narcotic Drugs and Psychotropic Substances Act and has wrongly arrived at the conclusion that the accused has not committed offence under the Act. She also submitted that the learned trial Judge has wrongly given benefit of doubt to the accused and thereby has wrongly arrived at the conclusion of acquittal. She also submitted that though number of documents were produced by the prosecution in order to show that house from which Ganja was found belongs to the accused, the learned Judge has wrongly observed that the house does not belong to the accused and the Ganja was not in conscious possession of the accused. She also submitted that the learned Judge erred in observing that the prosecution has not followed the provisions of Section 102 (3) of Criminal Procedure Code and, therefore, entire trial is vitiated. Therefore, she submitted that the order impugned in this appeal passed by the learned Magistrate requires to be quashed and set aside.
5. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP. The trial court has clearly observed that the complainant or PSO of Jambusar Police Station has made any report to the Magistrate as per Section 102 (3) of the Criminal Procedure Code and therefore in view of the decisions of Honourable Apex Court Page 4 of 8 R/CR.A/1065/1996 JUDGMENT the whole trial would stand vitiated. Therefore, it is rightly found that since the whole trial is vitiated, the accused cannot be held guilty for the contravention of Sections 8 © and 20 B (i) of the Act. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
6. It is a settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent - accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this appeal requires to be dismissed.
7. Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal Page 5 of 8 R/CR.A/1065/1996 JUDGMENT the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
8. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
9. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. Vs. State, Rep. By the Inspector of Police, Tamil Nadu (AIR 2013 SC 321), the Apex Court in Para-4 has held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in Page 6 of 8 R/CR.A/1065/1996 JUDGMENT upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"
10. Ms. Monali Bhatt learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
11. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
12. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same.
Page 7 of 8
R/CR.A/1065/1996 JUDGMENT
13. In the result, the appeal is hereby dismissed. The impugned judgment and order dated 6.7.1996 rendered in Special Case No.88 of 1996 by the learned Special Judge, Bharuch, acquitting the respondent, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith. Bail and bail bonds, if any, stand cancelled.
Sd/-
(K.J.THAKER, J) *malek Page 8 of 8