The principle that if another view is possible on re-appreciation of evidence, benefit has to be given to the accused.

Condl(Cr) No.28/2016

For the reasons assigned in the application, which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of 185 days in filing the criminal acquittal appeal is made out. In the result, delay is condoned.

Accordingly, the application for condonation of delay is disposed of.

SLAA No.28/2016

This application has been filed seeking leave of the Court to file an appeal against judgment dated 04.05.2016, by which the trial Court has acquitted the respondent of the offences under Sections 8/21/22 of NDPS Act.

2. The prosecution story in a nutshell is that on 29.04.2015 a Police party while performing traffic checking duty at Naka/Post Saidpur, intercepted a truck, which was coming from Punjab side. On checking of the said truck, it was found that 780 bottles of Corex were concealed in the Tool Box of the truck. The driver of the truck disclosed his name as Harmeet Singh S/o Pritam Singh. Thereupon, First Information Report No. 137/2015 under sections 8/21/22 of NDPS Act was lodged against the respondent. After completion of the investigation, charge sheet was presented before the trial court for commission of offences as aforesaid.

3. The prosecution, in order to prove the case, examined nine witnesses, namely, PW-1 Sardar Singh, PW-2, Rajesh Kumar SPO, PW-3 Kuldeep Singh, PW-4 Gulshan Kumar, PW 5 Naseeb Chand, PW-6 Pawan Kumar, PW-7 Vimal Indu and two others. The trial court on the basis of meticulous appreciation of evidence available on record has held that the prosecution has failed to prove the case beyond the shadow of reasonable doubt and accordingly, the respondent was acquitted of the offences alleged against him.

4. The learned Additional Advocate General for the appellant submitted that the trial court has not property appreciated the evidence available on record and has misdirected itself in evaluating the evidence available on record. On the other hand, the learned counsel for the respondent has supported the judgment passed by the trial Court.

5. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the perusal of the statements of prosecution witnesses, we find that there is contradiction with regard to the recovery of contraband material. Witness, namely, Sardar Singh has stated that one Gian Singh has written the docket but the aforesaid Gian Singh was neither cited nor examined as witness. The prosecution was required to keep the seized contraband and sample in a safe custody till it was dispatched to the FSL but in the instant case neither the Station House Officer has himself sealed the contraband nor there is any proof that the contraband as well as sample remained in a safe custody. There are evidence available on the record that seized boxes containing contraband was opened at different places in presence of the representative of Press and photos were clicked at different places. Therefore, no conclusive evidence is available on record to show that the contraband, which was produced before the Court, was the same that was recovered from the accused person. From the evidence, it is evident that at the place of recovery many persons were present on spot but not a single witness has been examined.

6. From the perusal of material available on record, it appears that there is non-compliance of sections 52 and 55 of the NDPS Act, 1985. The delay in delivering the bag at FSL has not been explained. The Malkhana Register was also not produced as evidence. Besides that, the prosecution did not examine the Officer Incharge of Malkhana, SHO and Constable Khemraj Sahu, therefore, the report of FSL cannot form the basis of conviction of the respondent.

7. The findings have been recorded by the trial Court on the basis of meticulous appreciation of evidence available on record. The findings recorded by the trial Court can neither be said to be perverse nor based on no evidence. The scope of interference with a