Union of India vs Sher Jamal and Another

S.R. Waghmare, J.—By this application filed u/s 378(4) of the Criminal Procedure Code for grant of leave to file appeal against the judgment dated 13/11/2009 passed by the Special Judge, (NDPS Act) Ratlam in Special Sessions Trial No. 14/2008. Counsel for the applicant/Department has vehemently urged the fact that the trial Court had properly convicted the defendant Wasim Ali @ Bablu, but acquitted the present respondents Sherjamal and Lalit @ Kamal from the offence Under Sections 8/21(g) and 8/29 of the NDPS Act. Counsel urged that the lower Court had actually come to a finding that the present respondents had supplied the contraband 1.1

kg. of heroin to the main accused Wasim, despite which the trial Court has acquitted the respondents/accused from the aforesaid offences. Counsel further submitted that the trial Court had erred in discarding the confessional statements of the accused which were available on record and thereby the respondents had categorically stated that the said contraband weighing 1.1 kg. of heroin was supplied by them to the main accused Wasim. To bolster his submissions, Counsel placed reliance in the matter of Ram Singh Vs. Central Bureau of Narcotics, whereby the Apex Court has held that the police officers are special officers in the course of special duties and confessional statements recorded are admissible in evidence and cannot be drawn out of consideration and Counsel submitted that the acquittal was therefore, vitiated and ought to be set aside.

Both the Counsel for the respondents have pointed out the fact that the confessional statements have not being discarded by the trial Court. In paragraphs 26, 27 and 28 of the impugned judgment the confessional statements are considered by the trial Court.

However, on considering the impugned judgment and the above submissions and considering the factual backgrounds of the case, I find that the respondent No. 1 Sherjamal was 60 years of age and respondent No. 2 Lalit @ Kamal was 26 years of age at the time of the incident and there was no other criminal cases recorded against the respondents; besides the fact, there is no other evidence against them in the said case recorded by the Investigating Officer. There was no previous history against the respondents and the witnesses of recovery turned hostile in Court and this cast a serious doubt on the confessional statements recorded by the Investigating Officer and hence it is rightly disbelieved by the trial Court. Thus, under these circumstances, no infirmity can be found with the impugned judgment of the trial Court. So also considering the fact that a valuable right of acquittal has already accrued to the respondents the impugned judgment should not be set aside on such slim parameters. Counsel submitted that the incident was in the year of 2008 and the respondent No. 1 is now more than 65 years of age today. Consequently to direct a retrial under the circumstance would be more than unfair and against the principles of natural justice.

Consequently, I find that the leave cannot be granted under the circumstances because no infirmity can be found with the impugned judgment of the lower Court and it does not call for any interference. The evidence has been properly scrutinized. The main accused Wasim has already been convicted and since there is no other evidence available on record except the confessional statements recorded by the Investigating Officer against the present respondents, they have rightly been acquitted from the offence. Considering the case of Ram Singh (supra), I find that the directions of the Apex Court were only that the confessional statements can be considered as evidence and cannot be discarded. In the present situation the statements have been categorically discussed by the trial Court in paragraphs 26, 27 and 28 of the impugned judgment and it cannot be said that the trial Court had discarded the confessional statements and therefore, the submission of the Counsel for the applicant is set at naught. Counsel for the applicant has admitted that there was no other offence recorded against the present respondents and no other evidence except the confessional statements available against the respondents. In such factual condition and on principles of natural justice, I find that the leave cannot be granted to file appeal. The application is, therefore, rejected as sans merit. C.c. as per rules.