Allahabad High Court
State Of U.P. vs Rakesh Singh on 28 August, 2017
Bench: Ramesh Sinha, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- U/S 482/378/407 No. - 791 of 2006
Applicant :- State Of U.P.
Opposite Party :- Rakesh Singh
Counsel for Applicant :- B.K. Nigam,Govt.Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Rekha Dikshit,J.
Heard learned A.G.A. for the State appellant/applicant and perused the material on record.
This application has been filed by the State appellant/applicant with the prayer that leave to appeal may be granted against the judgement and order dated 20.12.2005, passed in Criminal Case No.97 of 2005, under Section 8/18 N.D.P.S.Act, P.S. Gola, District Kheri by the learned Sessions Judge, Lakhimpur, Kheri whereby the accused respondent has been acquitted for the offence punishable under the section referred to above.
A perusal of the record shows that the alleged incident is said to have occurred on 11.6.2005. On an information given to the police by the informer that some persons are carrying poppy capsule powder with them riding on motorcycle and some on foot, the police personnel intercepted them and recovered a bag containing the above powder. Thereafter they were taken into custody. It was contended that the case lacs compliance under section 50 of the NDPS Act.. The prosecution has failed to prove the writing of the proceeding on paper. There is no evidence as to how the police personnel informed the superior officer. Therefore, this versions also appears to be doubtful. Further no independent witness has been shown in the arrest memo.This also makes the arrest and recovery doubtful.The absence of independent witness is a factor which creates a doubt on the authenticity of the arrest. The accused was not given an opportunity to have his search before a gazetted officer or a Magistrate. This fact has been admitted by the arresting police personnel. The court below after scanning and analyzing the entire material available on record has observed that the provision of Sec.50 of NDPS Act has not been complied with in this case. Therefore the accused can not be held guilty. Apart from it the story as set up by the prosecution also appears to be highly doubtful. The court below after scanning and analyzing the entire evidence available on record, has recorded its finding that the prosecution version is not at all reliable, trustworthy and inspiring and the prosecution has failed to prove its case beyond all reasonable doubt.
Upon specific query by the Court, learned AGA appearing on behalf of the State failed to demonstrate any illegality or infirmity in the findings recorded by the court below.
From perusal of the record, we do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondent. Moreover, the view taken by the court below is a possible view. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal.
We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed.
(Rekha Dikshit,J.) (Ramesh Sinha,J.)
Order Date :- 28.8.2017
IA
