Premsingh Hijarilal Jaiswal vs The State Of Maharashtra
2017 Latest Caselaw 7695 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.708 OF 2010

 PREMSINGH HIJARILAL JAISWAL                             )...APPELLANT

          V/s.

 THE STATE OF MAHARASHTRA                                )...RESPONDENT


 Mr.Taraq Sayyed, Advocate for the Appellant.

 Ms.P.N.Dabholkar, APP for the Respondent - State.


                               CORAM : A. M. BADAR, J.

                               DATE     : 28th SEPTEMBER 2017 &
                                          29th SEPTEMBER 2017


 ORAL JUDGMENT :



 1                By this appeal, the appellant / accused is challenging 

the judgment and order dated 31st August 2010 passed by the

learned Special Judge under NDPS Act, Greater Bombay, Mumbai,

in NDPS Special Case No.2 of 2009, thereby convicting the

appellant / accused of th offence punishable under Sections 8(c)

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read with 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (NDPS Act). He is sentenced to suffer

rigorous imprisonment for 10 years apart from directing him to

pay fine of Rs.1,00,000/- and in default, to undergo further

rigorous imprisonment for 1 year. He, however, is acquitted of the

offence punishable under Section 8(c) read with Section 29 of the

NDPS Act.

2 Facts in brief leading to the institution of the present

appeal can be summarized thus :

(a) PW3 Assistant Police Inspector (A.P.I.) Kedare Pawar was

attached to Anti Narcotic Cell (ANC), Azad Maidan Unit of

Mumbai. On 11th August 2008, at about 7.00 a.m., he received

information from his informant to the effect that at about 10.45

a.m. of that day, the appellant / accused is coming to Matoshri

Ramabai Ambedkar Prasuti Gruha, Chembur, Mumbai, for selling

charas, after purchasing it from Ajay alias Babli, resident of Uttar

Pradesh. This information is recorded in the Station diary by PW3

A.P.I. Kedare Pawar. This information was then transmitted to

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PW5 Police Inspector(P.I.) Vilas Chavan. Telephonic information

about this information was given to Assistant Commissioner of

Police as well as Deputy Commissioner of Police. PW3 A.P.I.

Kedare Pawar, was directed by the Deputy Commissioner of Police

to take necessary action under leadership of PW5 P.I. Vilas Chavan.

(b) PW5 P.I. Vilas Chavan then called his staff members and

disclosed the information received from PW3 A.P.I. Kedare Pawar

to them. Two panch witnesses namely PW6 Chandrakant Kengare

and Manik were summoned through Police Constable Pisal.

Necessary entry was taken in the Station diary. Material required

for effecting raid was summoned.

(c) Panch witnesses were asked about their willingness to

participate in the trap. After their consent, panchas took personal

search of members of police team which was to effect raid.

Similarly, they searched raiding material including the brass seal

in order to ascertain that the same does not contain any narcotic

substance or psychotropic drug. Panchas came to the conclusion

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that no objectionable article or material was found either on

person of members of the police team or in the articles / material

collected for effecting raid. Then, pre-trap panchnama Exhibit 39

came to be scribed.

(d) By two police jeeps, PW5 P.I. Vilas Chavan, PW3 A.P.I. Kedare

Pawar, PW7 A.P.I. Mohan Mane as well as other members of the

raiding team and panch witnesses proceeded towards spot i.e.

Matoshri Ramabai Ambedkar Prasuti Gruha of Chembur. There,

raiding team was divided in two groups. Under leadership of PW5

P.I. Vilas Chavan - one team took its position towards the northern

side of the spot, whereas the another team took position at the

southern side of the spot.

(e) According to the prosecution case, at about 10.50 a.m. of

11th August 2008, one person matching description given by the

informant to PW3 A.P.I. Kedare Pawar came in front of gate of

Matoshri Ramabai Ambedkar Prasuti Gruha. He was holding a

chocolate coloured cloth bag in his right hand. PW3 A.P.I. Kedare

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Pawar confirmed the fact that the person who came there is the

person who has imported charas as per information received by

him. The raiding team was accordingly signaled. The appellant /

accused Premsingh Jaiswal came to be surrounded by members of

the raiding team. PW5 P.I. Vilas Chavan disclosed his identity and

showed his identity card to the appellant / accused. Inquiry

regarding his name, address etc. was conducted.

(f) According to the prosecution case, in tune with the

provisions of Section 50 of the NDPS Act, PW5 P.I. Vilas Chavan

informed the object and purpose of search of the appellant /

accused to him. He was conveyed that he had right to give his

personal search before a nearest Magistrate or a Gazetted Officer.

The appellant / accused declined this statutory right, which was

also communicated to him vide a written communication Exhibit

37. The appellant / accused gave endorsement thereon to the

effect that it is not necessary to undertake this formality and

signed it.

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 (g)      According to the prosecution case, then, PW7 Mohan Mane, 

took the bag from right hand of the appellant / accused. After

opening, it was found to be containing a transparent plastic bag.

That transparent plastic bag was containing 63 cakes of blackish,

greenish colour, separately kept in separate transparent plastic

pouches. PW5 P.I. Vilas Chavan then weighed those 63 cakes

along with transparent plastic pouches in which those were kept

separately. The material was found to be weighing 16 kgs. PW5

P.I. Vilas Chavan took out small samples therefrom and tested

them by the field testing kit. It was found to be charas. Then PW5

P.I. Vilas Chavan took out sample from all those 63 cakes by

cutting each plastic pouch containing those cakes from the middle

portion of the pouch. In this manner, from all 63 cakes, two

samples each weighing 25 gms. were drawn. Both samples were

then kept in two different transparent plastic pouches. These

plastic pouches were closed by applying stapler pins. Those were

kept in two different brown envelopes. Both envelopes were then

sealed and marked as "A1" and "A2". Remaining contraband

weighing 15.950 gms. of charas came to be kept in original

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transparent plastic bag in which it was found. The bag was then

covered by white cloth and ends of that cloth came to be closed by

sewing it. Wax seal came to be applied on sewed portion. It was

labeled as Article A. Accordingly, a post trap panchnama Exhibit

39A came to be prepared in presence of panch witnesses.

(h) Routine investigation followed. One sample, which

according to the Investigator, was containing charas weighing 25

gms., was sent through PW2 Jayawant Khopkar, Carrier Constable

to the forensic laboratory, where it was examined by PW1

Sandeep Chetty, Assistant Chemical Analyser. Upon chemical

analysis of the said sample, it was found to be containing charas

falling under Section 2(iii)(a) of the NDPS Act, 1985.

(i) On completion of routine investigation, the appellant /

accused came to be charge-sheeted. The learned Special Judge

under NDPS Act, Greater Bombay, Mumbai, framed Charge for

offences punishable under Sections 8(c) read with 20(b)(ii)(c) of

NDPS Act as well as under Section 8(c) read with 29 of the said

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Act. The Charge was explained to the appellant / accused. He

abjured his guilt and claimed trial.

(j) In order to bring home the guilt to the appellant / accused,

the prosecution has examined in all seven witnesses. PW1

Sandeep Chetty, Assistant Chemical Analyser, had conducted

forensic examination of the sample sent to the forensic laboratory

and the report of examination of the sample is at Exhibit 15. PW2

Jayawant Khopkar had reached the sample to the forensic

laboratory. PW3 A.P.I. Kedare Pawar is an officer who received the

secret information and who participated in the raid conducted by

the ANC. PW4 Vijay Nimbalkar, A.S.I. attached to ANC was

entrusted with the duty of the safe keeping of the seized

muddemal, he being store keeper with the ANC. PW5 P.I. Vilas

Chavan had headed the raiding team and seized the contraband.

Independent panch Chandrakant Kengare is examined as PW6

who proved seizure panchnama Exhibit 39. PW7 Mohan Mane,

A.P.I., is the Investigating Officer.

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 (k)      Defence of the appellant / accused  was that of total denial. 

 He,   however,   did   not   enter   in   the   defence.     After   hearing   the 

parties, by the impugned judgment and order, the learned trial

court came to the conclusion that the appellant / accused was

found in possession of 16 kg charas on 11th August 2008.

However, the charge of conspiracy was held to be not proved.

Accordingly, the appellant / accused is convicted and sentenced

as indicated in opening paragraph of this judgment.

3 I have heard the learned advocate appearing for the

appellant / accused. He vehemently argued that seized

muddemal i.e. the bulk quantity was never produced before the

learned trial court for being inspected and identified by the

concerned witnesses. This has caused great prejudice to the

appellant / accused. The learned advocate for the appellant /

accused submitted that it was the duty of the prosecution to

produce that bag in which seized muddemal was kept before the

learned trial court. The witness ought to have identified the bulk,

while in the dock. This would have granted an opportunity to the

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appellant / accused to demonstrate that the contraband was not

seized from him.

4 The learned advocate further argued that sealed

packet allegedly containing the bulk was produced before the

learned trial court only when PW6 Chandrakant Kengare - panch

witness stepped in the witness box. Though it was elicited from

his mouth that if shown he would be in a position to identify the

seized contraband, the prosecution has not deliberately opened

the sealed packet containing the contraband allegedly seized from

the appellant / accused.

5 The learned advocate appearing for the appellant /

accused further argued that even according to the prosecution

case, from each cake, sample was drawn by cutting the

transparent plastic pouch from the middle and in this way, two

samples each weighing 25 gms were collected. If this actually

happened, then, one sample sent to the forensic laboratory must

have contained 63 tiny pieces weighing 25 gms. However,

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evidence of PW1 Sandeep Chetty, Assistant Chemical Analyser,

shows that sample received by the forensic laboratory was in

round shape of 1 inch diameter. That sample was found to be

weighing 26.6507 gms. The learned advocate appearing for the

appellant / accused, as such, argued that the sample which was

sent to the forensic laboratory, was not the sample which was

drawn from the material allegedly seized from the appellant /

accused.

6 The learned advocate for the appellant / accused then

compared evidence of PW6 Chandrakant Kengare with evidence of

official witnesses namely, PW3 A.P.I. Kedare Pawar, PW5 P.I. Vilas

Chavan and PW7 Mohan Mane and submitted that evidence of

panch witness is totally at variance with the evidence of official

witnesses. The panch witness has spoken about using electronic

scale whereas official witnesses are deposing about using manual

scale for weighing the sample. He, further argued that, panch

witness has not spoken about conveying statutory right to the

appellant / accused as envisaged by Section 50 of the NDPS Act

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and this fact shows that evidence of official witnesses on this

aspect is not corroborated by the independent panch witness.

7 To buttress his submission, the learned advocate for

the appellant / accused has placed reliance on judgment of the

Hon'ble Apex Court in the matter of K. Mohanan vs. State of

Kerala1, Jitendra and Another vs. State of M.P.2, judgment of

this court in the matter of Hanamantu s/o. Gangaram Badawat

vs. State of Maharashtra3 and Shri Shiv Kumar @ Ashok

Mishra vs. Special Judge of N.D.P.S. Court4.

8 The learned APP supported the impugned judgment by

contending that evidence of official witnesses as well as that of

panch witness goes to show that the bulk was produced before the

court. She further argued that discrepancy in weight of the

sample as well as size and shape of the sample cannot amount to a

discrepancy creating reasonable doubt in the prosecution case. A

reasonable doubt is not an imaginary, trivial or a merely possible 1 (2000) 10 Supreme Court Cases 222 2 (2004) 10 Supreme Court Cases 562 3 2007 ALL MR (Cree) 3359 4 1997 Bombard. (Cree) 865

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doubt, but it must be a fair doubt based on the reasons and

common sense. Such doubt must grow from the evidence in the

case. By relying on paragraphs 25 and 26 of the judgment in the

matter of State of U.P. vs. Krishna Opal and Another 5, the

learned APP contended that the appellate court cannot upset the

judgment of conviction unless there are "substantial" or

"compelling" reasons or "very substantial reasons" or "strong

reasons" for doing so. For upsetting the judgment of conviction,

the appellate court is required to record the reasons as to why the

lower court went wrong. She relied upon judgments of the

Hon'ble Apex Court in P. P. Beeran vs. State of Kerala6 and

Prabha Shankar Dubey vs. State of Madhya Pradesh 7 to

demonstrate that there was compliance of Section 50 of the NDPS

Act.

9 I have carefully considered the rival submissions and

also perused the record and proceedings including deposition of

witnesses and documentary evidence produced on record by the

5 (1988) 4 Supreme Court Cases 302 6 AIR 2001 Supreme Court 2420 7 AIR 2004 Supreme Court 486

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prosecution. Now let us examine whether it is proved by the

prosecution that the appellant / accused was found to be in

possession of charas weighing 16 kgs. i.e. in commercial quantity

in contravention of provisions of NDPS Act. According to the

prosecution case, as has been deposed by PW3 A.P.I. Kedare Pawar,

PW5 P.I. Vilas Chavan and PW7 Investigating Officer Mohan Mane,

on 11th August 2008, at about 11.00 a.m., the appellant / accused

was found to be in possession of 16 kgs charas - a narcotic

substance which was comprising of 63 cakes and each cake was

found to be put inside a separate pouch. Undisputedly, it is case

of the prosecution, as reflected from the seizure panchnama

Exhibit 39, that those 63 cakes separately kept in plastic pouches

were kept in one transparent plastic bag which was found to be

kept inside the cloth bag held by the appellant / accused in his

hand. Recitals in seizure panchnama Exhibit 39 make the position

of keeping the contraband in the bag held by the appellant /

accused clear. First Informant PW3 A.P.I. Kedare Pawar has

deposed that PW5 P.I. Vilas Chavan took out all 63 cakes from one

transparent plastic bag and PW5 P.I. Vilas Chavan gave cuts at the

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center by knife for drawing small quantities from each cake. His

cross-examination reveals that while drawing these samples from

each transparent plastic pouch, cakes were not removed from

those transparent plastic pouch. PW5 P.I. Vilas Chavan in his chief

examination deposed that from center of the cakes, he gave cut by

knife and drew quantities for the purpose of collecting samples.

His cross-examination is pointing out the fact that each cake was

kept in a separate transparent plastic pouch. Evidence of PW7

Investigating Officer Mohan Mane also shows that from all 63

cakes, PW5 P.I. Vilas Chavan drew samples in small quantities.

Exhibit 39 is the seizure panchnama prepared by police after

testing the material on field testing kit and after drawing two

samples each weighing 25 gms from 63 cakes allegedly found in

possession of the appellant / accused. Page 5 of the seizure

panchnama Exhibit 39 shows that PW5 P.I. Vilas Chavan gave cut

to each transparent plastic pouch containing 63 cakes for drawing

two samples from each cake. Evidence of PW3 A.P.I. Kedare

Pawar, PW5 P.I. Vilas Chavan and PW7 Investigating Officer

Mohan Mane who took part in the raid and the resultant seizure

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shows that after drawing samples from each cake after cutting the

plastic pouch in which those cakes were independently kept, two

samples each weighing 25 gms were drawn and those were kept

in two different transparent plastic pouches. Those pouches were

then closed by applying stapler pins on them. Thereafter, they

were kept in two different brown envelopes by marking them as

"A1" and "A2". Those were claimed to have been sealed by

applying wax seal. This position reflected from the evidence

adduced by the prosecution witnesses so also from

contemporaneous documents in the form of seizure panchnama

Exhibit 39 goes to show that each plastic pouch must be

containing 63 tiny pieces of alleged contraband. Similarly, if what

is stated by these three prosecution witnesses had really

happened, then, bulk of the contraband must contain cut on each

transparent plastic pouch containing each cake - 63 in number.

According to the prosecution case, all those 63 cakes were kept in

the cloth bag from which they were recovered. Then the bag

came to be covered with a cloth and by sewing ends of that

cloth, that bag was sealed. So far as weighment is concerned,

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prosecution witnesses have categorically deposed that each

sample was weighing 25 gms.

10 Now let us examine whether one sample out of two

samples collected from the contraband allegedly found in

possession of the appellant / accused was sent for forensic

examination in order to ascertain whether it was containing

charas as defined by Section 2(iii)(a) of the NDPS Act. What was

sent was the sample weighing 25 gms comprising of 63 tiny pieces

drawn from 63 cakes. None of the prosecution witnesses deposed

that all those 63 tiny pieces were amalgamated to form a round

shaped article. On this backdrop, it is in evidence of PW1 Sandeep

Chetty, Assistant Chemical Analyser, that what was received by

him was a sample weighing 26.6507 gms. Cross-examination of

this witness reveals that the sample was in round shape having 1

inch diameter. This witness has categorically admitted the fact that

he has not noted down the condition in which the sample was

received in the data sheet prepared by him. The reason given by

him for this is he did not find it necessary. Thus, PW1 Sandeep

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Chetty, Assistant Chemical Analyser, is not stating that he received

sample in the form of 63 tiny pieces and is accepting the fact that

the sample shown to him is a round shaped article having about 1

inch diameter. The sample drawn, weighed and sent was

containing material weighing 25 gms whereas the sample shown

to have been received by the forensic laboratory, as deposed by

PW1 Sandeep Chetty, was weighing 26.6507 gms. The shape of

the sample which was sent and which is deposed to have been

received by the PW1 Sandeep Chetty is totally different. If really

the sample in the form of 63 tiny pieces weighing 25 gms was sent

to the forensic laboratory, then there is no reason for it to grow in

weight, particularly when it was kept in the plastic pouch which

was closed by stapling it and then put in the brown cover, which

was sealed. The possibility of increase in weight due to moisture

was also not there nor was this aspect clarified by the prosecution

in its evidence. Thus, reasonable doubt lurks in the judicious

mind as to whether the sample sent for forensic examination

was the same which was drawn from the material seized

from the appellant / accused. This doubt cannot be said to

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be fanciful or over emotional doubt as it is grown out of the

evidence adduced by the prosecution in the instant case.

11 Now let us examine whether in the wake of the doubt

as to whether the sample sent for forensic examination was the

same as was drawn from the material seized on 11 th August 2008

from possession of the appellant / accused, let us ascertain

whether non-production of the bulk had in any manner prejudiced

the accused. Effect of non-production of the bulk and non-

identification of the same during the course of the trial came to be

examined by the Hon'ble Apex Court in the matter of Jitendra

and another (supra). Paragraph 5 and relevant portion of

paragraph 6 thereof needs reproduction. It reads as under :

"5 There is no independent witness as to the recovery of the drugs from the possession of accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect it with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested

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testimony of police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although, the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced." The High Court relied on Section 465 of the Cr. C.P. to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.

6 In our view, the view taken by the High Court is unsustainable. In the trial it was necessary

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for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act."

12 It is, thus, clear that, best evidence which is necessary

to prove the guilt in such cases is production of the seized material

during the trial and identification of the same by prosecution

witnesses. In this case, this aspect is assuming overbearing

importance because peculiar facts of the prosecution case reveals

that each cake was kept in a transparent plastic pouch and each

pouch was give a cut by PW3 A.P.I. Kedare Pawar in its center for

drawing to tiny pieces towards sample. Therefore, production of

the bulk would have made sure that the bulk was comprising of

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63 cakes and each cake is in different plastic pouch having a cut at

its center.

13 Even Nagpur Bench of this court in the matter of

Hanamantu (supra) had an occasion to examine importance of

production of bulk in the case under NDPS Act. Relevant portion

of paragraph 4 of this judgment reads thus :

"4 Thus what Section 52A mandates is preparation of inventory and certification thereof by the Magistrate. In the instant case admittedly no inventory was prepared and if prepared the same is not placed on record before the Court. Learned Sessions Judge in para 12 of his judgment observed that only samples of Ganja were produced before the Court and not the bags actually containing the Ganja that were allegedly seized. It is thus clear that the property in question is not produced before the Court at all. The production of such property before the Court could have been dispensed with had the inventory been drawn and copy thereof been produced. No witness therefore has identified the property that is allegedly seized. The penalty under the act is very severe. Law is well established.

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Higher the penalty stricter the proof. This Court in an unreported decision in Criminal Appeal No. 414 of 2006 (Shiva Narayan Mohite and Ors. v. State of Maharashtra) at Nagpur decided on 06.06.2007 has held as follows:

In Jitendra's case (supra) the Apex Court dealing with the case under the N. D. P. S. Act held that in the trial under the N. D. P. S. Act it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband were seized from the possession of the accused and the best evidence would have been the seized materials which ought to have been produced during the trial and marked material objects. The Apex Court also found unsustainable the finding of the High Court that the non production of the contrabands before the Court was not fatal to the prosecution. In my opinion, the ratio laid down by the Apex Court in Jitendra's case (supra) is squarely applicable in the present case. Non production of the contraband before the trial court has caused serious prejudice to the accused and moreover the prosecution has not given any reason for non production of best evidence before the trial

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Court. In my opinion, non production of the contrabands before the trial court is fatal to the prosecution case. On this ground only the accused are entitled to be acquitted.

This Court therefore relied on a decision of the Supreme Court in Jitendra and Anr. v. State of M. P. 2004 Supreme Court Cases (Cri) 2028 and held as above."

14 Analogous to the facts of the case in Hanamantu

(supra), in the instant case also evidence on record does not

indicate that in pursuance of provisions of Section 52A of the

NDPS Act, the prosecution has got the inventory prepared and

certified by the Magistrate. In the light of this aspect, non-

production of contraband before the trial court can be considered

as a factor causing prejudice to the accused. The question is not

whether there was tampering with the bulk and the sameple but

the question is whether there was possibility of such tampering to

the bulk and the sample in the light of the fact that the bulk was

not produced before the trial court during course of trial and

when it was produced while examining PW6 Chandrakant

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Kengare - panch witness, despite his willingness to identify the

bulk, the prosecution has not shown it by opening the bag

containing the bulk.

15 Evidence of PW3 A.P.I. Kedare Pawar, PW5 P.I. Vilas

Chavan and PW7 Investigating Officer Mohan Mane does not

show that during the course of their examination, the bulk was

produced before the learned trial court and they had identified the

bulk by inspecting the same and by stating that it is the same

material which was seized from the appellant / accused . So far

as PW6 Chandrakant Kengare - panch witness is concerned,

evidence shows that the bulk was available with the learned trial

court during the course of his examination. Paragraph 13 of his

chief examination is interesting. This witness has candidly stated

that he can identify the bulk if shown to him. What was shown to

this witness was the bundle containing the bulk and marked as

Exhibit A. For the reasons best known to the prosecution, instead

of showing the bulk contained in the sealed bundle, this witness

was shown four seals on one side and five seals on other side of

that bundle. It is elicited from this witness that all the seals are

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intact. This obviously makes it clear that the prosecution was not

sure as to whether the sealed bundle Exhibit A was containing 63

cakes independently kept in transparent plastic pouch and each

pouch was having cut in its middle, made for the purpose of

drawing of samples from each cake. It is apparent that as the

prosecution was not sure that the bundle was containing the bulk

as is stated to be seized from the possession of the appellant /

accused, it did not dare to open the sealed bundle despite

willingness shown by PW6 Chandrakant Kengare - a panch

witness, to identify the bulk. The learned trial court could have

assured itself that the bulk produced before it corresponds with

the bulk alleged to have been seized at the time of effecting

seizure panchnama Exhibit 37, by ascertaining the fact that the

bulk is kept in different transparent plastic pouch having cuts

thereon.

16 In this fact situation, law laid down by the Hon'ble

Apex Court in the matter of Jitendra and another (supra) as well

as by this court in the matter of Hanamantu (supra) applies with

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full force to the case in hand. I, therefore, do not deem it

necessary to discuss other aspects and other evidence.

17 In the result, I proceed to pass the following order :

ORDER

i) The appeal is allowed.

ii) The appellant / accused is acquitted of the offence with

which he stood charged. Fine amount, if any, paid by him

be refunded to him. He be released forthwith, if not required

in any other case.

                                                     (A. M. BADAR, J.)




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