State Of U.P. vs Raju And Another
2023 Latest Caselaw 11537 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 81
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 185 of 2023
 

 
Appellant :- State of U.P.
 
Respondent :- Raju And Another
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Heard Sri Ankit Srivastava, learned Additional Government Advocate for the State-appellant on the application under Section 378 (3) Cr.P.C. for leave to appeal.

2. Present leave to appeal has been filed carrying delay of 49 days by the State-appellant under Section 378(3) Cr.P.C., arising from judgment and order of acquittal dated 28.10.2022 passed in Special Case No. 237 of 2021 (State of U.P. Vs. Raju and another), arising out of Case Crime No. 544 of 2021, under Section 8/21 NDPS Act, District Bareily.

3. Briefly, for the purpose of consideration of leave to appeal, it may be noted that according to the prosecution story, on 07.07.2021, two accused persons namely Raju and Munna were apprehended by the police party, whereupon in the first instance each were found in possession of 250 gm powder alleged to be smack. It was further alleged, on their joint pointing out 1 kg of such powder/smack was recovered, as also cash of Rs. 40,00,000/- was recovered.

4. In such facts, charge under Section 8/21 NDPS Act was framed with respect to 1 kg, 500 gm of powder/smack. It is on that charge that the accused persons Raju and Munna were tried.

5. Perusal of the impugned judgement and order reveals that the prosecution miserably failed to establish the identity of the offending goods/powder to be smack. During cross examination, it was candidly admitted that neither there was any lab report to establish the contents of such powder to be smack nor there was any certification to establish the contents of the alleged offending goods to be smack.

6. Primarily, on such critical deficiency in the prosecution story, the learned court below has acquitted the accused persons. Further, compliance of Section 50 of NDPS Act could also not be established by the prosecution.

7. In the present leave to appeal, no material could be shown to make all reasonable suggestion that there was no evidence to establish alleged offending goods were narcotics substance.

8. That be the status of evidence as shown to the Court, I find no good ground to grant leave to appeal in the present case which in any case has been filed with the delay of 49 days.

9. Accordingly, the application seeking leave to appeal as well as application seeking condonation of delay in filing the present government appeal are rejected. Consequently, appeal is also dismissed.

Order Date :- 18.4.2023

SA