Point of Law: Merely saying that the delay was on account of procedural aspect, is not sufficient cause to condone the delay.

JUDGMENT :

TASHI RABSTAN, J.

1. The order of acquittal of the accused dated 13.06.2014 is sought to be challenged by the appellant-State in accompanied appeal. As the appeal has been filed after the expiry of period of limitation, application on hand has been filed seeking condonation of delay in its filing. The appellant has also filed an application seeking leave of this Court to file the appeal against the acquittal.

2. Before dealing with the application seeking condonation of delay it would be appropriate to examine the impugned judgment to find out as to whether or not any interference is warranted therewith, so that injustice may not occasion merely because of lapse on the part of the appellant-State in filing the appeal within the prescribed period of limitation.

3. The brief case of the prosecution is that while HC Rattan Singh and party were on routine naka/duty, they intercepted accused/respondent herein Lalan Yadav and seized 11 Kg of ganza. After the registration of FIR No. 56/2010, the investigation was handed over to SI Niayat Ali, who conducted the investigation, recorded the statements and performed all the legal formalities and presented the challan before the Court of Principal Sessions Judge, Kathua on 20.03.2010, who transferred the case to the trial court on the same day. Charges were framed against the accused/respondent herein under section 8/20 NDPS Act on 21.04.2010, who pleaded not guilty and claimed to be tried. The prosecution was directed to lead evidence. The prosecution has examined as many as eight out of nine cited witnesses to prove the guilt of the accused/respondent herein. Prosecution evidence was closed vide order dated 20.02.2014, and the case was posted for recording the statement of the accused/respondent herein under section 342 Cr.P.C. on the same day. The statement of the accused/respondent herein was recorded on 23.04.2014, who in his statement denied the occurrence and the case was posted for advancing arguments in terms of section 273 Cr.P.C. Vide order dated 23.05.2014, the trial court did not find the case to be of no evidence asked the accused/respondent herein to produce evidence in defence. But the learned counsel for the accused/respondent herein submitted that he does not want to produce any defence evidence. As such, the file was posted for advancing arguments. During trial the statements of the prosecution witnesses were recorded and after hearing the learned counsel for the parties, the learned Trial court delivered the judgment on 13.06.2014 whereby the respondent herein/accused has been acquitted of the charges.

4. PW Dev Singh has stated that the accused was nabbed at 10.05 a.m. however, the other prosecution witnesses have deposed the time of occurrence at approximately 6.30 a.m. No independent witness has been brought as a witness to prove the prosecution case. Though, Investigating Officer has deposed that no independent witness was willing to join, however, he has failed to disclose names of the independent witnesses who are not willing to join. The resealed packets of the narcotics which has been dispatched to the FSL on 09.03.2010 has not been produced as a part of the challan by the I.O. Consequently, the same has also not been proved. As per the statement of the I.O. the seized material was deposited in malkhana, but neither the extracts of malkhana register are part of the challan nor the then malkhana In-charge is a witness cited in the challan. PW Shamshad Begum deposed that she took the sealed packet to Tehsildar office for resealing, who in turn directed the Naib Tehsildar to reseal the same. In her cross examination she deposed that In-charge Police Post in her presence sealed the ganza packet and then handed over the same to her for resealing. Dr. Pawan Abrol, Asstt. Scientific Officer has proved his FSL report dated 13.03.2010, but in cross examination he admitted that there is no mention of nature of seal impressions in his report and he cannot remember t