State Of U.P. vs Amrika
2022 Latest Caselaw 8641 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- GOVERNMENT APPEAL No. - 1000036 of 2019
 

 
Appellant :- State of U.P.
 
Respondent :- Amrika
 
Counsel for Appellant :- Govt. Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard learned A.G.A. for the State and perused the record.

By means of instant application moved under Section 378 (3) Cr.P.C., the State has requested for grant of leave to file appeal against the impugned judgment and order dated 05.12.2018 passed by the Additional District and Sessions Judge, Court No. 6, Barabanki in Sessions Trial No. 06 of 2015, arising out of Case Crime No. 304 of 2014, under Section 8/21 N.D.P.S. Act, Police Station Safdarganj, District Barabanki, whereby the respondent- Amrika has been acquitted of the charges framed against him under Section 8/21 N.D.P.S. Act.

Learned A.G.A. while drawing the attention of this Court towards the judgment of the trial Court submits that the trial Court has given much weightage to minor contradictions which have emerged in the testimony of the prosecution witnesses pertaining to the seizure and sealing of the contraband recovered from the opposite party- Amrika, while the prosecution has proved its case before the trial Court by passing cogent and trustworthy evidence.

It is further submitted that as no prior information of the incident was available to the police party and there was no opportunity for the police party to have procured independent public witnesses. Moreover, Section 50 and 57 of the NDPS Act has been complied and there was no occasion for the trial Court to have acquitted the respondent.

I have perused the judgment of the trial Court as well as the record in the light of the submissions made by learned A.G.A. and have found that the case of the prosecution in nutshell is to the tune that it was on 28.11.2014, the Station House Officer Jainuddin Ansari along with other police personnels was going in search of wanted criminals and at 5:15 am. when he arrived at the crossing of Auliapur, he found two persons sitting under a 'Neem Tree' and on become suspicious they were asked to stand still but they started running away on which they were apprehended. On being apprehended, the instant applicant had stated that he is possessing 'morphine', on which he was told that if he desires, then his personal search may be conducted before the Magistrate or a Gazetted Officer. However, the respondent Amrika as well as the co-accused agreed to be searched by the police party and they also signed a consenting letter. The personal search of the applicant resulted in the recovery of 100 grams of 'morphine', which was seized and sealed on the spot, after taking a sample of the same.

Charge sheet was filed against the co-accused person and applicant. Charges under Section 8/21 NDPS Act was framed against applicant who denied the same and claimed trial.

The prosecution in order to prove its case apart from the documentary evidence has relied on the statement of P.W.-1/S.I. Ram Sajeevan Yadav, P.W.-2/S.I. Anil Dwivedi, P.W.-3/S.I. Satnam Singh, P.W.-4/H.C.P./Rajendra Singh, P.W.-5/Head Constable Krishna Dev Singh and P.W.-6/Mohd. Jainuddin Ansari. The accused persons have denied the evidence of the prosecution in their statement recorded under Section 313 of the Cr.P.C. and claimed that the seizure of the 'morphine' shown to have been recovered from the possession of the opposite party is false as the same has been planted by the police personnels.

Learned Trial Court after appreciating the evidence available on record, acquitted the accused person/opposite party of the charges framed against him under Section 8/21 NDPS Act, importantly on the ground that the search and seizure and arrest of the opposite party is doubtful as the prosecution witnesses had claimed to have sealed the recovered morphine in a cloth along with its container (polythene) in which the same was recovered from the possession of the applicant, but when the recovered contraband was presented before the trial Court and opened in the Court, it was not found in 'polythene'. Thus, in the opinion of the trial Court, the seizure as well as the arrest of the opposite party was doubtful.

I have perused the record of the trial Court in the background of this finding and have found that in the seizure memo, which has been allegedly written and prepared at the scene of the crime on the relevant day and time, it has been mentioned that after arresting the opposite party, his person was searched along with the person of other co-accused person, however, from the person of the opposite party-Amrika, 100 grams of 'Morphine (Diacetylmorphine)' was recovered which was contained in a polythene bag and the recovered morphine was sealed at the spot. However, when this contraband which was allegedly seized and sealed at the place of crime was presented in the Court, the same was not found contained in a polythene bag and was contained in cloth alone.

The question as to how the application for grant of leave to appeal made under Section 378(3) of the Code should be decided by the High Court and what are the parameters which this Court should keep in mind remains no more 'res integra '. This Issue has been examined and settled by the Hon'ble the Apex Court in cases of 'Sanwat Singh and others vs. State of Rajasthan, AIR 1961SC715, Ajmer Singh v. State of Punjab, 1953 SCR 418, Sadhu Saran Singh Vs. State of Uttar Pradesh and Others, 2016 CrL. J. 1908 and State of Maharashtra vs. Sujay Mangesh Poyarekar, MANU/SC/8073/2008".

From the above mentioned decisions some general principles which may emerge are that the appellate court is having full power to review or re- appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction on exercise of such power by the appellate court and that the appellate court may reach at it's own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons gets fortified, reaffirmed and strengthened. The golden principle which runs through the web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record, the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.

Having regard to all the facts and circumstances of the case and keeping in view the law laid down by the Hon'ble Supreme Court in the above mentioned cases, it is evident that a reasonable doubt is emerging with regard to the upkeep and safe custody of contraband allegedly recovered from the possession of the applicant. There cannot be any doubt in the proposition that if there is reasonable doubt emerging from the evidence available on record, the benefit of same is to be granted to the accused person, specially in those cases where the punishment is harsh, the mandatory safeguards which have been provided are to be complied strictly like in the cases pertaining to the NDPS Act.

It is also settled that if two probable views are emerging from the evidence produced before trial Court and the trial Court has adopted one probable view, the same could not be termed as either perverse unless it is shown that the same is not based on any evidence, which is not a case in this case. Thus, I am satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial Court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.

Since application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive. Consequently, the appeal is also dismissed.

Order Date :- 1.8.2022

Praveen