ORAL JUDGMENT

1. By way of this appeal, the appellant– State has challenged the judgment and order of the learned Special Judge, Jamnagar (for short, ‘the Trial Court’), Dated : 31.07.2004, rendered in Special Criminal Case No. 2 of 1998, whereby, the learned trial Court acquitted the original accused–Respondent, herein, of the charge punishable under Section 20(b)(ii)(a) of the NDPS Act (Amendment), 1991, by giving him the benefit of doubt.

2. The brief facts of the case of the prosecution, as set out before the trial Court, are that while the complainant along with other staff members was on patrolling on 15.12.1997, at that time he received information that the original accused-Respondent, herein, keeps and sells the narcotic substances illegally. Hence, the search of the house of the accused was carried out, during which ganja weighing about 400 gms. was seized. Since, the accused had no pass or permit to possess the same, a complaint came to be lodged against him. Police, then, carried out investigation into the alleged offence and on finding sufficient evidence filed charge-sheet against the accused. Since, the accused did not plead guilty before the trial Court, the trial was conducted.

3. At the time of trial, the prosecution, in support of its case, examined twelve witnesses.

4. Apart from that the prosecution also produced as many as 18 documents to strengthen its case, viz. the complaint, recovery panchnama, report of FSL etc..

5. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal.

6. Learned APP for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective. He, submitted that taking into consideration the evidence of the witnesses examined by the prosecution as well as the documentary evidences produced by it, the trial Court ought to have held the accused guilty of the charges leveled against him. He submitted that trial Court erred in coming to the conclusion that the mandatory provisions of the NDPS Act were not complied with. She, therefore, prayed that the appeal be allowed.

7. On the other hand, Mr. Thakore, learned Advocate for the accused-Respondent, herein, supported the order of the trial Court and submitted that the prosecution failed to establish its case against the accused beyound reasonable doubt, and therefore, the trial Court committed no error in passing the order of acquittal and the present appeal being without merit be dismissed.

8. Heard learned APP for the appellant– State and the learned Advocate for the accused- Respondent and perused the material on record with their assistance.

9. The case of the prosecution before the trial Court was that during the alleged raid, about 400 gms. Of narcotic substance was found from the house of the accused. Now, in that regard if the evidence of the complainant is seen, then, he states that out of 400 gms. Of contraband, two pouches weighing 25 gms. each were prepared and sealed as well as remaining contraband weighing about 350 gms. Was also sealed. However, as per the evidence, of PW-8, in his evidence (Exhibit-18) stated that he was handed over two pouches of 25 gms. each as well as one parcel containing about 400 gms. Of contraband. The evidence of PW-9 to whom the PW-8 had handed over the contraband are also to the same effect. Thus, the evidence of PW-8 and PW-9 shows that the total contraband was weighing about 450 gms., however, the specific case of the prosecution is that the contraband sezied from the house of the accused was 400 gms.. Thus, there is ambiguity, as to how much contraband was actually seized. Further, the trial Court found that the house at which the allegedly raid was carried out and the contraband was seized, did not belong to the accused, but, same belonged to his father. Hence,