Jammu & Kashmir High Court
State Of J&K; vs Raju on 5 September, 2017
Bench: Alok Aradhe, B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Acquittal Appeal No. 55/2012
Date of order: 05.09.2017
State of J&K vs. Raju
Coram:
Hon'ble Mr Justice Alok Aradhe, Judge
Hon'ble Mr Justice B. S. Walia, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. Ravinder Gupta, AAG.
For respondent (s) : None.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
Per Alok Aradhe-J
This Criminal Acquittal Appeal has been filed against the judgment dated 26.04.2012 passed by the trial court, by which the respondent has been acquitted of offences under sections 08/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).
2. The prosecution story in a nutshell is that on 06.04.2008, Sham Singh SPO informed Police Station, Kud through telephone that when he along with Army personnel were on checking and frisking duty at SCP Kral Nallah, Kud , at about 16.45 p.m. a bus, which coming from Srinagar to Jammu, was intercepted by them. During checking and frisking, charas was found from the bag of respondent, which was kept in a polythene bag. During investigation charas weighing 4 kg 800 gms was recovered from him and was seized. The Police thereupon, registered First Information Report for offences under Section 08/20 of the Act and investigation commenced.
Cr.Acq. No. 55/2012 Page 1 of 4After completion of the investigation, charge sheet was presented in the Court against the respondent for the offence as aforesaid.
3. The trial Court in order to prove the case examined PW- Shah Shingh SPO, PW 2 Irfan Ahmed, PW 3 Imran Ahmed, PW 4 Balwan Chand, PW 6 Ravinder Kumar Gutpa, PW 7 Brij Lal, PW 8 Nissar Hussain Tehsildar, PW 9 Ravi Kumar Constable, PW 11 Rohit Koul, Scientific Assistant FSL, Jammu, PW 12 Hafiz Ul Rehman Constable and PW 13 Manoj Dhar. The trial court on the basis of material available on record vide impugned judgment has acquitted the respondent of the aforesaid offences.
4. Learned Additional Advocate General for the appellant submitted that the trial court ought to have appreciated that the recovery of the contraband from the respondent was duly approved, which is corroborated from the report submitted by the FSL and seals were found to be intact. Therefore, question of tampering with the sample does not arise. It is further submitted trial court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment.
5. We have considered the submissions made by the learned counsel for the parties and have perused the record. PW-Sham Singh in his deposition has stated that he cannot say from where the ring was brought. He has further stated in his evidence that he did not count the maize cobs of the seized material. It was further stated that sample weighing 20 gms was taken out from 10/12 maize cobs and the same was weighed by the military persons in his presence and in presence of SHO. He has further stated that SHO himself weighed the sample. PW-Irfan Ahmed has stated that the sample weighing 200 grams of contraband material was taken. SHO did not conduct the weight himself, which was done by police personal, whose names he does not know. He has also stated that the weight was done by Cr.Acq. No. 55/2012 Page 2 of 4 scale and he cannot say from where the scale was brought. PW Imran Ahmed has stated that charas was weighed by SHO himself and he does not know from where the scale was brought for weighing the contraband. He has further stated that sample was taken out in shape of 3 pieces and the weight was found to be 200 gms, which was taken in his presence. PW Balwan Chand has stated that the weight of seized contraband material was conducted by PW-Sham Singh and he weighed the sample with 20 gms weight, which was taken in the shape of 15-20 small pieces and the sample was not wrapped in corn cob leaves but were in loose condition. Thus, there is material contradiction in the evidence of the prosecution witnesses with regard to the weight of the sample. The seizure memo of charas shown as 20 gms sample was taken.
6. PW Sham Singh, Balwan Chand and Manoj Kumar have stated that 20 gms sample was taken, whereas PWs Irfan Ahmad and Imran Ahmed have stated that 200 gms sample was taken. PW-Rohit Koul, Scientific Assistant, FSL, Jammu has mentioned in his FSL report that he received sample containing 45 gms in the shape of one twisted flat piece of some blackish coloured material wrapped in maize cob leaf. Thus, there are various contradictions, discrepancies and improvements in the statements of prosecution witnesses with regard to search, seizure, weight, packing and sealing of the packets. The trial court has rightly appreciated the evidence available on record and acquitted the respondent of the offence alleged against him.
7. 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. Cr.Acq. No. 55/2012 Page 3 of 4 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.
8. 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.
(B. S. Walia ) (Alok Aradhe)
Judge Judge
Jammu
05.09.2017
Karam Chand
Cr.Acq. No. 55/2012 Page 4 of 4