AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal under Section 378(III) of the Code of Criminal Procedure, 1973 has been filed by the appellant/State assailing the judgment and order of acquittal dated 14.02.2017 passed in Criminal Case No.100604 of 2008 (State of M.P. vs. Ramesh Singh and others) by the learned Judicial Magistrate First Class, Pathariya, District Damoh (M.P.), whereby the respondents/accused have been acquitted of the offence under Sections 8(g) and 20(kh)(II)(k) of the N.D.P.S. Act, 1985.
Briefly stated, the prosecution case is that the complainant, J.P. Verma, was posted as an Assistant Sub-Inspector at Police Station Patharia. On 26.08.2008, pursuant to the directions of the Station House Officer, he was deputed for patrolling duty within the town along with Constables bearing Nos.141, 86 and Soldier No. 201. During the course of such duty at about 19:40 hours when he reached near the house of Anand Tiwari on Shahpur Road, Patharia, a motorcycle bearing registration No.MP-15-MC-0212 (Platina) was intercepted and checked. Upon inspection, a cloth bag affixed to the motorcycle was found to contain contraband 'Ganja' wrapped in cloth. On being questioned, the accused failed to produce any valid license or authority for possession of the said contraband. It is alleged that Ganesh Singh Lodhi was seated on the pillion, while Kaka @ Sushil was driving the motorcycle, and upon further enquiry, one of the accused disclosed that the ganja had been procured from Patharia and was being transported to Parsoria. A seizure panchnama was prepared on the spot in the presence of independent witnesses, namely Munna Athaya and Bukhal Khan. The motorcycle was seized under Crime No.0/2008 for the offence under Section 8/20 of the NDPS Act, and a spot map (Ex.P-1) was prepared. The dickey of the motorcycle was also searched in the presence of witnesses and further contraband ganja wrapped in cloth and paper was recovered for which Panchnama (Ex.P-3) was prepared. Additionally, a sum of Rs.7,000/- (in denominations of Rs.500/-) was seized from the possession of the accused Ramesh near the house of Anand Tiwari, as per Ex.P-4. On the same day, identification Panchnama of the seized ganja (Ex.P-5), weighing panchnama (Ex.P-6), sampling and sealing panchnamas (Ex.P-10 to Ex.P-13), including preparation of 30-gram samples, were carried out in accordance with procedure and in the presence of the accused and witnesses. The accused were thereafter arrested and arrest memos (Ex.P-18 and Ex.P-19) were prepared. Upon return to the police station, a First Information Report (Ex.P-17) was registered. During the course of investigation, the seized articles were sent to the Forensic Science Laboratory, Sagar, and upon completion of investigation, the charge-sheet was filed before the competent Court. The statements of the three accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied the allegations in toto and pleaded false implication. They did not adduce any evidence in defence.
In order to bring home the charges, the prosecution has examined as many as 07 witnesses, namely Bukhal Khan (PW-1), Nirpat Patel (PW-2), Umesh Tiwari (PW-3), Nadeem Sheikh, Constable No.141 (PW-4), Sub Inspector J.P. Verma (PW-5), Sub Inspector Uttam Lal (PW-6) and D.S.P., B.R. Chouhan (PW-7) and placed Ex.P/1 to P/30, the documents on record. In defence, the respondents/accused did not choose to examine any witness.
4 . Learned trial Court after recording the evidence of both the parties acquitted the present respondents/accused. Hence, this appeal.
Learned counsel appearing on behalf of the appellant/State has contended that the respondents have erroneously been acquitted by the learned trial Court despite ample evidence on record. It is submitted that, at the time of the incident, the police party was engaged in routine vehicle checking and there was no prior information regarding the presence or transportation of contraband ganja. In such circumstances, the recovery having been effected during a chance search, strict compliance of Section 41 of the NDPS Act was not required. It is further submitted that the prosecution witnesses have duly supported the case of the prosecution as well as the documents prepared at the spot. The seized contraband was sent to the Forensic Science Laboratory and as per the FSL report, the substance has been confirmed to be ganja. Accordingly, it is contended that the prosecution has successfully established its case beyond reasonable doubt and the learned trial Court has committed a manifest error in recording an order of acquittal. Therefore, the aforesaid observation of the learned trial Court is stated to be contrary to the evidence available on record and not based on proper appreciation thereof. On these grounds, it is contended that the judgment of acquittal passed by the learned trial Court is erroneous and unsustainable in law. Accordingly, it is prayed that the present appeal be allowed, the impugned judgment of acquittal be set aside, and the respondents/accused be convicted and sentenced in accordance with law.
Per contra, learned counsel appearing on behalf of respondents/accused has submitted that the learned trial Court has rightly recorded the finding of acquittal. It is contended that the learned trial Court has duly and properly appreciated the evidence available on record and has rightly extended the benefit of doubt to the respondents/accused. The judgment of acquittal being well-reasoned and founded upon proper appreciation of evidence does not warrant any interference by this Court. Accordingly, learned counsel prays for dismissal of the present appeal.
I have heard the learned counsel for the appellant and perused the record meticulously.
8 . The independent witness to the proceeding and various memorandums prepared on the spot, Bukhal (PW-1) did not support the story of prosecution and turned hostile. Other independent witness, namely, Munnalal has not been examined on behalf of the prosecution for the reasons best known to it. In this circumstance, only the statements of departmental witnesses are on record. The star witness of the prosecution, in this regard is J.P. Verma (PW-5) who has conducted search and prepared various memorandums. He stated that on 26.08.2008, he went for vehicle checking at Shahpura Road, Patharia, near the house of Anand Tiwari. At 19.46 o'clock, a motorcycle bearing registration No.MP-15-MC-0212 came which has been stopped by them and in searching, a dickey (side bag) in the forma of bag of cloth has been found in which material was wrapped in a paper which was Ganja (cannabis). Licence in respect of Ganja as well as motorcycle was not found, therefore, he prepared a panchanama. Nirpat (PW-2) is a Sainik, who accompanied this witness. Though Umesh (PW-3) and Nadeem (PW-4) were constables, but there are material variations and contradictions in the statement of these departmental witnesses.
Nadeem (PW-4) in his cross-examination has categorically stated that Verma Saheb (PW-5) has received an information that two persons were carrying Ganja and, therefore, they reached on the spot. This witness has not been declared hostile and cross-examined on this point, therefore, the testimony of the witness, namely, Nirpat (PW-2), Umesh (PW-3) and J.P. Verma (PW-5) that they were reached on the spot for vehicle checking and they have no prior information about he Ganja renders doubtful. The observation of the learned trial Court in this regard that in a vehicle checking ordinarily papers of the vehicles are checked but why a dicky in the forma of cloth bag has been checked by police has not been explained by these witnesses which rather indicates that the police had a prior information of it. Hence, it seems that a prior information with regard to Ganja has already been received by J.P. Verma (PW-5) but he has not complied with the provisions of Sections 41 and 42 of the NDPS Act. He has not given any information to the superior officers about the information in respect of Ganja.
1 0 . Nirpat (PW-2) has stated in chief examination that there was a dicky of vehicle in the forma of a bag of cloth in which Ganja was placed. He could not specify the company's make of motorcycle as well as its registration number and colour. He further stated that where the dikki was placed in the motorcycle there was a bag of cloth but he could not specify whether the colour of bag was black or brown. He stated that there was a chain affixed in the bag and it was hanged with the motorcycle. He in paragraph-6 has categorically stated that only the Ganja has been examined in his presence. No sample has been taken out in his presence from the seized material.
Umesh (PW-3) has stated that the motorcycle contains a bag in which Ganja was wrapped in a paper but such fact that the Ganja was wrapped in the paper was not stated by Nirpat (PW-2). He also went for providing written information to the SDOP but he stated that since the SDOP was not present and the TI was also one went to Dehat, that could not be served on them. He stated that the Ganja was weighed and it was 570 gms. However, Nirpat (PW-2) has not stated that whether the Ganja was 570 gms. and two samples of 30 gms. each have been taken out from the seized material. In paragraph-6 of cross-examination, he stated that the seized material was 550 gms. therefore, the quantity of Ganja is varied in the statements of both these witnesses.
1 2 . It is revealed from he testimony of Umesh (PW-3) that the bag was not seized in which the Ganja was placed. Nadeem (PW-4) in his chief-examination as well as in cross-examination has stated that the raiding party went after receiving information of Ganja. He further stated in cross-examination that this information received by J.P. Verma (PW-5) has been sent to SDOP but no such information under Sections 41 and 42 of NDPS Act, is on record.
J.P. Verma (PW-5) has stated that the entire proceeding done on the spot. He stated that the seized material was 570 gms. of Ganja and out of which two samples of 30 gms. each have been taken and packets have been marked as Article-A and B, but in paragraph-4 he further stated that the seized Ganja was 560 gms. No order in respect vehicle checking has been appended with the challan. In respect of quantity of Ganja, he admitted in pargaraph-20, admitted categorically that the seizure memo contains the fact that from the dikki of motorcycle 570 gms. Ganja has been seized. In paragraph-22 he further admitted that seizure memo contains the fact that two samples of 30 gms. each and remaining Ganja of 560 gms. have been sealed at the spot. Here again the quantity of total Ganja seized and remaining Ganja after preparing of two samples of 30 gms. each is varied in the statement of this witness. He in paragraph-4 also he stated that two samples of 30 gms. each and remaining Ganja of 560 gms. has been seized.
It is stated by J.P. Verma (PW-5) that for weighing the material, a machine along with weighing scales (बाँट) have been called but he could not specify that how many weighing scales of which denomination have been called for and received by him and how many weighing scales were used in weighing the seized Ganja. He further admitted that the dickey/cloth bag has not been seized and no such dickey/cloth bag has been adduced in this case. Moreover, the paper in which the Ganja was wrapped has also not been seized and adduced before the trial Court. For such omission no explanation has been offered by the witnesses.
J.P. Verma (PW-4) has admitted in cross-examination that he has prepared search memo Ex.P/3 at 19:40 on 26.08.2008 while the search memo has been prepared at 9:45 on 26.08.2008. He further admitted in paragraph-9 that the witnesses, Munna and Bukhal were passing through the road but he has not called them. He also admitted that they are not the residents of vicinity, then how these witnesses made available for witnessing the panchanma has not been explained by the prosecution. This witness has further admitted no jama talashi has been given prior to the search of the accused. In paragraph-10 he admitted that he has not clarified that the seized Ganja was in the form of flower, root or any other form? and what was the colour of it? and which quantity the Ganja has been examined by smelling, burning and rubbing?
This witness J.P. Verma (PW-5) has further admitted that verification of weighing machine did not contain the verification of weighing scales. He also admitted that he has not given the size of paper in which Ganja was wrapped. He further stated that the homogeneous proceeding were undertaken at 21:20 pm. and there was a darkness but an electric pole situated on spot. Such pole, however, has not been mentioned in the spot map prepared by the Investigating Officer as well as by Patwari concerned. He further admitted that the panchnama Ex.P/11 contained overwriting and that the shops of the witnesses, namely, Bukhal and Munna were situated at a distance of around 100 mts. from the police station. He further admitted that the panchanama did not contain the fact that the sample and the remaining material were sealed. Moreover, there is no specimen seal marked in the panchnama. If the samples and remaining contraband material have not been seized at the spot, the entire case of the prosecution renders doubtful. This witness in paragraph-23 has admitted that the seizure memeorandum Ex.P/16 did not contain specimen seal at paragraph-13 and no explanation of such omission has been offered by him.
J.P. Verma (PW-5) has further stated in cross-examination that the samples in sealed condition have been given to the Malkhan incharge of Police Station and later on they have been sent for FSL analysis but Uttam (PW-6), who is the malkhana incharge at that time of Police Station, has not stated in chief-examination that the seized material was in sealed condition rather he stated in chief-examination that 570 gms. Ganja has been given to him which has been placed in the malkhana. In paragraph-3 of his cross-examination, he stated that 570 gms. of Ganja in one packet has been given to him which was placed in a packet of cloth. He has not specified about the packets of samples and remaining material of Ganja given him separately. He further stated in paragraph-4 of cross-examination that the packet has been handed over to him during day-time and the date specified by this witness as 26.08.2008 while the contraband material has been seized at 19:46, therefore, it could not been possible that on the same day during day time, such contraband material could be handed over to this witness.
The FSL report and the draft for FSL report have not been got exhibited by the prosecution for the reason best known to it. It has not been clarified by the prosecution that the samples were marked as Article-A and B, then how the report in respect of samples Artice-A-1 and A-2 has been received. Though the FSL report could be read in evidence without there being any exhibit on it but as far as the draft for such report receipt and the connected documents ought to have been exhibited during the course of examination of the witnesses but a serious lacuna in this respect has been left by the prosecution in this case.
In conspectus of aforesaid factual scenario, the case of prosecution cannot be said to be established beyond reasonable doubt. The learned rial Court considering the evidence in detail and all aspects has rightly concluded the acquittal of the respondent/accused persons. The view taken by the learned trial Court is a possible and reasonable view based on the evidence on record. It is settled law that an appellate Court should not interfere with an order of acquittal unless the findings recorded by the trial Court are perverse or wholly unreasonable.
2 0 . I n H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3.The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
(Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"20.Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] has held : (SCC p. 415, para 7)
“7.The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.”
21.This Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"12.No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-
"42.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as :
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive — inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court."...
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground for interference with the findings of the trial Court.
Ex. consequenti, while affirming the findings of acquittal of present respondents by the learned trial Court, the appeal being bereft of merit is hereby dismissed.