Oral Judgment:
1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 12.3.2004 passed by the learned 2nd Fast Track Judge, Amreli in Sessions Case No. 62/2002, whereby, the learned trial Judge acquitted the original accused the respondent herein, of the charges for the offence punishable under Section 8 and 27 of NDPS Act.
2. The brief facts of the prosecution case are that the complainant Shri A.T. Dube, Police Inspector, Savarkundala Taluka Police Station and other staff while on patrolling duty to enquire about gambling and prohibition incidents and were passing by Azad Chowk, at about 13.40 hrs. That while going so, they received information that the accused Abdulbhai Valibhai Sipai is keeping narcotic drugs in his possession and selling the same by preparing packets, is wandering near Luvana Mahajanvadi. Thereupon, the complainant called two panchas and prepared the preliminary panchnama. Thereafter, after completing necessary procedure, the complainant along with his staff went to Mahajan Wadi. That on seeing the police, the accused tried to run away. However, Police Constable Kalubhai apprehended the accused while he was running. Thereafter, search was carried out and on the left pocket of the pant of the accused, ganja contained in a polythene bag was recovered. The weight of the said ganja is 5gm 50mg value at Rs. 50/-. He was not having any pass or permit to deal or possess ganja. Thereafter, panchnama was drawn and the muddamal was seized and sent to the Forensic Science Laboratory and as per the report of the Forensic Science Laboratory, the contraband article was ganja, and thereafter, the complaint was lodged. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, charge-sheet was filed against him, which was numbered as Sessions Case No. 62/2002. The trial was initiated against the respondent.
3. To prove the case against the present accused, the prosecution has examined witnesses and also produced documentary evidence.
4. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 12.3.2004.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.
6. It was contended by learned APP Mr. Pandya that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed.
7. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA and ANR, (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under;
54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.
8. Further, in the case of CHANDRAPPA Vs. STATE OF KARNATAKA, reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;
[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
9. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
10. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN and ANR., reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed 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 re-appreciate 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.
11. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH and ORS., 2007 A.I.R. S.C.W. 5553 and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP, 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
12. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS., reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under;
10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence.
13. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU, reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:
4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]
14. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of STATE OF KARNATAKA VS. HEMAREDDY, AIR 1981, SC 1417, wherein it is held as under;
...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
15. In a recent decision, the Honble Apex Court in SHIVASHARANAPPA and ORS. VS. STATE OF KARNATAKA, JT 2013 (7) SC 66 has held as under;
That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.
16. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
17. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP Mr. Pandya for the appellant-State and Mr. Sohel Z. Saiyed learned advocate for Mr. Y.N. Ravani learned advocate for the respondent. On the factual scenario, no case is made out for interference with the well reasoned judgment of the trial Court. The learned trial Judge has found that respondent was found in possession of 5 grams of contraband article- ganja. According to Mr. Pandya learned APP, section 42 and 50 were complied with, and therefore, the learned trial Judge has committed grave error in acquitting the accused. More so, the impugned judgment is so perverse it requires to be up-turned on the finding of facts. The learned trial Judge in para-12 has recorded a finding that the panch turned hostile and has not supported the case of the prosecution. It is further recorded that when the accused was arrested, no report was made to the higher officer. Under the circumstances, section 42, 52, 55 and 57 are not complied with. The panchas have turned hostile, and therefore, the prosecution has failed to prove its case beyond reasonable doubt. The fact that the mandatory provisions were not followed and that is the finding of fact recorded by the learned trial Judge, and therefore, I do not feel that there is any material which will bring home the charge levelled against the present respondent-ori. Accused. The finding of fact is such that this Court has no option but to concur with the acquittal recorded by the learned trial Judge. I do not find any infirmity in the order passed by the learned trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned trial Judge is just and proper. The evidence on record will not permit this court to take a different view than that taken by the learned trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge leveled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
18. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same.
19. In the result, the present appeal is hereby dismissed. R and P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.