Jammu & Kashmir High Court
State vs Janak Raj on 28 July, 2017
Bench: Alok Aradhe, Sanjeev Kumar
Item No. 11
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SLAA No.34/2016
c/w\
Condl(CR) No.33/2016
Date of order: 28.07.2017
State v. Janak Raj
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant/petitioner(s) : None.
For the Respondent(s) : None.
Per, Alok Aradhe, J:-
Condl(CR) No.33/2016 None for the parties even when the matter is taken up in the second round.
2. From perusal of the application, which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 326 days in filing the application for leave to appeal is made out. Accordingly, the delay of 326 days in filing the application for leave to appeal is condoned. In the result, Condl(CR) No.33/2016 is disposed of.
SLAA No.34/2016:
Heard.
2. This application for leave to appeal has been filed against the judgment dated 28.02.2015 by which the respondent has been SLAA No.34/2016 c/w\ Condl(CR) No.33/2016 Page 1 of 3 acquitted of the offences under Section 21/22 NDPS Act (for short 'the Act').
3. The prosecution story briefly stated is that on 14.07.2005, the accused who was travelling in a scooter was intercepted by police nake party laid by PW-1, Gurmeet Singh, SHO, P/S Kanna Chak, Jammu. On search of the accused, 2200 capsules of Parvon Spas were recovered from the possession of accused and the seizure memo was prepared. Thereupon the first information report was lodged for offence under Section 21/22 of the Act. The police after completing the investigation has filed the charge sheet against the respondent for the offence as aforesaid. The trial Court vide impugned judgment dated 28.02.2015 has acquitted the respondent of the offence alleged against him.
4. We have perused the record. From perusal of the record, it is evident that witnesses to the recovery and seizure of the contraband namely PW-Kuldeep Singh and PW-Rinku have been declared hostile. Nothing incriminating has been brought on record even from their cross examination. Besides that, the contraband material was deposited in FSL Jammu on 19.07.2005 i.e. after five days of the date of the incident and it was the duty of the prosecution to prove its safe custody. However, no evidence in this regard has been laid by the prosecution that the contraband material was kept in a safe custody. From the material available on record, we find that the provisions of Section 42(2), 52 A (2) and SLAA No.34/2016 c/w\ Condl(CR) No.33/2016 Page 2 of 3 Section 55 of the NDPS Act have not been followed. The trial Court on the basis of meticulous appreciation of evidence on record has recording the finding that the prosecution has failed to prove the offence against the respondent. The findings recorded by the trial Court are based on meticulous appreciation of evidence on record which by no stretch of imagination can be said either perverse or based on no evidence. Even otherwise, it is well settled that if on re-appreciation of evidence on record, another view is possible, the one which favours the accused has to be taken.
5. In view of the preceding analysis, we do not find any merit in the application seeking leave to appeal. Accordingly, the same fails and is hereby dismissed.
( Sanjeev Kumar ) ( Alok Aradhe )
Judge Judge
Jammu
28.07.2017
Raj Kumar
SLAA No.34/2016
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Condl(CR) No.33/2016 Page 3 of 3