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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur, Sanjay Kumar Gupta, JJ.
State of J&K – Appellant
Vs.
Lekh Raj – Respondent
Cr. Acq. Appeal No.12 OF 2015
Decided On : 08-09-2017
NDPS Act - Acquittal - Section 8/20 NDPS Act - Summary of Acts and Sections: The court discussed the scope of power of appellate court in case of acquittal, highlighted the approach of the appellate court in the appeal against acquittal, and emphasized the presumption of innocence in favor of the accused. The court also highlighted the mandatory provisions of law that the investigating officer has to follow while conducting the investigation under the NDPS Act.
Fact of the Case:
The accused was found carrying charas and was arrested under Section 8/20 NDPS Act. The trial court observed material contradictions in the statements of prosecution witnesses and non-compliance with mandatory provisions of law during the investigation.
Finding of the Court:
The court found that the prosecution failed to prove its case beyond reasonable doubt and upheld the judgment of the court below, resulting in the acquittal of the accused.
Issues: Material contradictions in the statements of prosecution witnesses, non-compliance with mandatory provisions of law during the investigation, and failure of the prosecution to prove the case beyond reasonable doubt.
Ratio Decidendi: The court emphasized the presumption of innocence in favor of the accused, the approach of the appellate court in the appeal against acquittal, and the mandatory provisions of law that the investigating officer has to follow while conducting the investigation under the NDPS Act.
Final Decision: The judgment of the court below was upheld, resulting in the acquittal of the accused.
Sanjay Kumar Gupta, J.
1. State is aggrieved of the acquittal earned by Lekh Raj S/o Amaru Ram R/o Village Sindi Morha, Tehsil Bani, District Kathua ( for brevity ‘accused’) vide impugned judgment dated 04.07.2014 of learned Special Judge, Kathua, in case FIR No.03/2013 registered in Police Station Bani for the offences under Section 8/20 NDPS Act, therefore,
2. It has been averred that trial court has not properly appreciated the evidence on record. That court below has mis-appreciated the law on the point. That there was enough evidence on record which was sufficient for convicting the accused/respondent,
3. Prosecution case is that on 07.02.2013, ASI Bashir Ahmed along with SGCt. Davinder Singh 493/K, SGCt. Manshah Mohd 232/K, SGCt. Shiv Kumar 299/K and Ct. Des Raj 978/K, were on patrolling in the area of Shaparu Mangihaar and when he along with his companions reached Shaparu at 12:15 PM, one person was found coming from the side of Sindi via Radiant-III Shaparu Road GREF and was carrying one bag brown coloured, who on finding the police party tried to run away. He was followed by him and other police personnel and was apprehended. He disclosed his name as Lekh Raj S/O Amaru Ram of Sindi Morha, Tehsil Bani. The bag was checked and one polythene bag containing two kilograms of charas was recovered from it, which was seized. Out of the seized charas, 50 grams were taken as sample for the purpose of chemical analysis which was sealed on spot and was marked as Mark-A. The accused having committed offence u/s 8/20 NDPS Act, was arrested. The ASI made a report, on the basis of which, FIR No. 03/2013 for offences punishable under sections 8/20 NDPS Act was registered and investigation of the case was entrusted to him. He recorded the statements of the witnesses, got the chemical report of analyst regarding the sample and found offences punishable u/s 8/20 NDPS Act established against the accused and accordingly presented the challan in the Court.
4. Charge was framed against the accused on 04.07.2013 for offence punishable u/s 8/20 NDPS Act. He pleaded not guilty and opted for trial. Prosecution was directed to produce evidence. They produced all the listed witnesses namely Davinder Singh, Shiv Kumar, Manshah Mohd., Des Raj, Bashir Ahmed, Jai Singh Naib Tehsildar, Abdul Gani Bhat and Anayat Ali.
5. Court below after conducting full trial has observed that prosecution case is full of contradictions; cardinal principles of laws have not been followed by I/O during investigation. The Malkhna registered has not been produced.
6. Since there was no representation on behalf of respondent-accused, we have heard learned counsel for the appellant-State and with the assistance rendered by State counsel; we have gone through the evidence on record.
7. We have considered all aspects of matter and law on the point.
8. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court in AIR 2014 SC 2200 in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as under :-
10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acq
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