Gujarat High Court
State Of Gujarat vs Manojkumar Mevalal Shukla & ... on 31 July, 2014
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/743/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 743 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ? No
5 Whether it is to be circulated to the civil judge ? No
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STATE OF GUJARAT....Appellant(s)
Versus
MANOJKUMAR MEVALAL SHUKLA & 2....Opponent(s)/Respondent(s)
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Appearance:
MR.K.L.PANDYA, APP,for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 31/07/2014
ORAL JUDGMENT
1. The present appeal is filed by the appellantState under section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C, 1973) being aggrieved and dissatisfied with the judgment and order dated 01.06.2000 passed by the learned Additional Sessions Judge, Page 1 of 6 R/CR.A/743/2000 JUDGMENT Vadodara, in N.D.P.S. Case No.16 of 1998, whereby the respondents original accused have been acquitted of the charges levelled against them.
2. Short facts of the case are that Mr.N.D.Solanki, Police Sub Inspector received information that respondent No.1accused No.1 Manojkumar Mevalal Shukla was coming with Ganja in the Bus travelling from Ahmedabad to Baroda. On receiving the said information, Mr.N.D.Solanki, Police Sub Inspector informed to Additional Police Commissioner and made entry in station diary No.9 of 1998 at about 12 noon. Thereafter, the Police Constable immediately called two Panchas and businessmen and after completing all formalities, they went to Central S.T.Bus Stand, Vadodara by Government Vehicle. At that time, at about 13:10 p.m., respondent No.1accused came with one bag (Suit case) before the Panchas and thereafter, search was made and Ganja weighing 1600 gram worth Rs. 2600/was recovered from the said bag, which was seized and respondent No.1accused No.1 was arrested. Thereafter, in interrogation, as it was found that respondent Nos.2 and 3accused were also involved in the commission of offence, they were arrested. The sample sent to FSL was opined by the expert to be of Ganja. As a result of which, complaint had been filed by the complainant against the respondentsoriginal accused before the Sayajiganj Police Station for the offences punishable under Sections 20(B), 27 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'the NDPS Act' for short).
2.1. At the end of investigation and on the basis of material collected against the accused, since a prima facie case was made out against the accused, a chargesheet was filed against them. Thereafter, the charge was framed against the accused, which was read over to them. The accused pleaded not guilty to the said charge and claimed to be tried.
Page 2 of 6R/CR.A/743/2000 JUDGMENT 2.2. In order to prove the charge against the accused, the prosecution has examined, in all 10 witnesses and also produced documentary evidence numbering 15.
2.3. Upon filing closing pursis by the prosecution, further statements of the accused under Section 313 of Cr.P.C, 1973 were recorded. The accused denied involvement in the crime. After hearing the learned advocates appearing for the prosecution and the defence, the learned trial Judge, acquitted the respondentsaccused of all the charges levelled against them under Section 235(1) of the Code of Cr.P.C., 1973 giving benefit of doubt, which is giving rise to the present appeal.
3. Heard Mr.K.L.Pandya, learned Additional Public Prosecutor, for the appellantState. It appears that though notice of admission issued by this Court was duly served to respondentsoriginal accused, they did not remain present either personally or through any advocate.
4. Mr.K.L.Pandya, learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the oral as well as documentary evidence produced on record. He further submitted that learned Judge has committed an error in not properly appreciating the oral as well as documentary evidence in its true and proper perspective. Learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the deposition of complainant Mr.N.D.Solanki, wherein he has deposed that he had received the information that respondent No.1accused was coming with Ganja and after the search, the same was recovered from the accused. He then submitted that the learned trial Judge has committed an error in holding that during the raid, prosecution has not complied with the mandatory Sections 42, 50, 55 and 57. He further submitted that the prosecution has proved the case against the respondentsaccused beyond reasonable doubt and thereby, the learned trial Judge has Page 3 of 6 R/CR.A/743/2000 JUDGMENT committed error in acquitting the respondents-accused. It is therefore, urged that the present appeal requires to be allowed.
5. I have considered the above referred submissions made by Mr.K.L.Pandya, learned Additional Public Prosecutor for the appellant State and have carefully gone through the impugned judgment and order. It is the fact that after receiving the information at about 12 noon, Mr.N.D.Solankicomplainant had rushed to the Sayajiganj Police Station to register the said information in the station diary and thereafter, forwarded the said information to his higher official. Further, the prosecution has not placed on record any document to show that the said information Exh.28 had actually reached to the higher official. It is pertinent to note that though the complainant himself was the Investigating Officer, he had not even cared to record the statement of the police official, who had forwarded the information to the higher official on the same day i.e. on 18.06.1998. It has also come on record that the prosecution has not complied with the mandatory provisions of Sections 50, 42(2) and 57 of the Act. The learned Additional Public Prosecutor has failed to point out anything from the record to show that the compliance of the above referred mandatory provisions have been made during the course of raid. Under the circumstances, there appears no illegality or perversity or arbitrariness in the conclusions arrived at and findings recorded by the learned trial Judge.
6. It appears that the learned trial Court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused under Section 235(1) of the Cr.P.C, 1973. This Court is, therefore, of the opinion that the learned trial Court was completely justified in acquitting the accused of the charges levelled against them. Under the circumstances, the findings recorded by the learned trial Court are just and proper and no illegality or infirmity has Page 4 of 6 R/CR.A/743/2000 JUDGMENT been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same.
7. Learned Additional Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the learned trial Court or that the approach of the learned trial Court is vitiated by some manifest illegality or that the decision is perverse or that the learned trial Court has ignored the material evidence on record.
8. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the learned trial Court have been very clearly explained by the Honble Apex Court in number of decisions. In the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007)3 SCC 75, it has been held by the Honble Apex Court In para 16 as under:
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal 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 reappreciate 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.
9 Same view has been taken by the Apex Court in State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and Page 5 of 6 R/CR.A/743/2000 JUDGMENT in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
10. I have gone through the impugned judgment and order passed by the learned trial Court together with oral as well as documentary evidence and also considered submissions made by learned Additional Public Prosecutor, in light of the principles laid down by the Hon'ble Apex Court in the aforesaid decisions.
11. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 01.06.2000 passed by the learned Additional Sessions Judge, Vadodara, in N.D.P.S. Case No.16 of 1998 is confirmed. Bail bonds shall stand cacelled. Registry to sent back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same.
(G.B.SHAH, J.) siddharth// Page 6 of 6