State Of Gujarat vs Bhopa Alias Bhupatbhai ...
2022 Latest Caselaw 6564 Guj

     R/CR.A/312/2008                               JUDGMENT DATED: 22/07/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 312 of 2008

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

      Whether Reporters of Local              Papers   may be
 1                                                                         NO
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                                YES

      Whether their Lordships wish to see the fair copy
 3                                                                         NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                     NO
   of India or any order made thereunder ?

=======================================
                      STATE OF GUJARAT
                             Versus
       BHOPA ALIAS BHUPATBHAI KALYANBHAI HARNIYA
=======================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR SHAILESH V RAVAL(2953) for the Opponent(s)/Respondent(s)
No. 1
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 22/07/2022

                           ORAL JUDGMENT

1. This appeal is filed by the appellant - State under Section

378(1)(3) of the Code of Criminal Procedure, 1973 challenging

the judgment and order dated 12.04.2007, passed in Sessions

(NDPS) Case No. 4 of 2006 by the learned Additional Sessions

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Judge and Presiding Officer, 12th Fast Track Court, Rajkot,

recording the acquittal.

2. Facts in brief are that on 22.03.2006, when complainant

Natvarsinh Jilubha Chudasama, PSI, Vinchhiya Police Station at

the relevant time, was in bandobast in SSC in Ajmera High School

at Vinchhiya, at that time, he received information with regard to

the fact that in the sim of village Rupavati, the respondents -

accused in his field known as 'Bekad', stated to have sown Ganja

along with Wheat. Accordingly, the complainant, along with

panchas and others, rushed to the spot and found raised plants of

Ganja. On seeing the raiding party, the respondents - accused

tried to flee from the spot, however, he got caught. The

complainant found about 15 kilogram Ganja plants at the spot.

Accordingly, the complainant undertook necessary procedure and

registered the offence before the Vinchhiya Police Station against

the respondent - accused for the offence punishable under

Sections 8 and 20(a) and (b) for the Narcotic Drugs and

Psychotropic Substances Act, 1985 (NDPS Act).

2.1 Upon FIR being filed, investigation started and the

Investigating Officer recorded statements of several witnesses

and produced certain documentary evidence and after

completion of the investigation, Charge-sheet was filed against

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the accused for the offence in question. The case was committed

to the Sessions/Special Court and the learned trial Judge framed

the Charge. Since the accused did not plead guilty, trial was

proceeded against the accused. Vide impugned judgment and

order, the learned trial Judge acquitted the accused. Being

aggrieved by the same, the State has preferred the present

appeal.

3. Heard, learned Additional Public Prosecutor Ms. Jirga Jhaveri

for the appellant - State and learned advocate Mr. Shailesh Raval

for the for the respondent - accused.

3.1 The learned Additional Public Prosecutor has mainly

contended that the learned trial Judge has erred in holding that

the prosecution has failed to prove its case beyond reasonable

doubt. She submitted that the impugned judgment of the trial

Court is based on presumptions and inferences and thereby, it is

against the facts and the evidence on record. The learned

Additional Public Prosecutor further submitted that the learned

trial Judge has failed to appreciate the evidence on record in its

true and proper perspective and thereby, has erred in recording

the acquittal of the respondent - accused.

3.2 The learned Additional Public Prosecutor further contended

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that the learned trial Judge has erred in holding that the

prosecution has failed to prove the case beyond reasonable

doubt inasmuch as 15 kilogram Ganja was seized from the place

(field) of the respondent - accused. Further, the respondent -

accused was caught at the place of incident. Besides, the

ownership of the field is also proved by the prosecution by the

documentary evidence which is on record and accordingly, the

learned trial Judge has gravely erred in not believing the case of

the prosecution and acquitting the respondent - accused of the

charges levelled against him.

3.3 The learned advocate for the Additional Public Prosecutor

further submitted that the impugned judgment and order is non-

speaking and the learned trial Judge has failed to give the

detailed reasoning for the conclusion arrived by him.

3.4 The learned Additional Public Prosecutor for the appellant -

State submitted that despite sufficient material was there on

record in support of the case of the prosecution and though the

prosecution successfully proved its case beyond reasonable

doubt, the learned trial Judge has committed error in discarding

the evidence on record and not believing the same.

3.5 It is submitted that the learned trial Judge has ignored the

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settled legal position and thereby, has erred in coming to such a

conclusion.

3.6 The learned Additional Public Prosecutor, taking this Court

through the oral as well as the documentary evidence on record,

submitted that though the prosecution has proved the case

against the accused beyond reasonable doubt, the learned trial

Judge has not properly appreciated the evidence on record and

thereby, has committed an error in recording acquittal. It is

submitted that though all the ingredients of the offence alleged

had been proved beyond reasonable doubt, the learned trial

Judge did not believe the same and therefore, the impugned

judgment and order suffers from material illegality, perversity

and contrary to the facts and evidence on record.

3.7 Thus, the learned Additional Public Prosecutor has

submitted although cogent and material evidence had been

produced by the prosecution and the case was proved beyond

reasonable doubt, the trial Court has committed a grave error in

acquitting the accused and accordingly, it is urged that present

appeal may be allowed by quashing and setting aside the

impugned judgment and order of acquittal.

4. Per contra, learned advocate Mr. Shailesh Raval for the

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respondent - accused, while supporting the impugned judgment

and order of the trial Court, submitted that the learned trial Judge

has, after due and proper appreciation and evaluation of the

evidence on record, has come to such a conclusion and has

acquitted the accused, which is just and proper. He submitted

that it is trite law that if two views are possible on the basis of the

evidence on record, the appellate Court should not disturb the

finding of acquittal recorded by the trial Court. Further, while

exercising the powers in appeal against the order of acquittal, the

Court of appeal would not ordinarily interfere with the order of

acquittal unless the approach of the lower Court is vitiated by

some manifest illegality.

4.1 The learned advocate for the respondent - accused

submitted that the ingredients of the offence alleged against the

accused are not proved by the prosecution beyond reasonable

doubt and there were several contradictions and omissions in the

evidence on record and therefore, the learned trial Judge has

rightly acquitted the accused of the charges levelled against him.

4.2 It is submitted that, in fact, the whole prosecution story,

appears to be the got up one. He submitted that the respondent

was wrongly implicated in the crime in question getting the

revenue records of the land belonging to the respondent. He

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submitted that as per the prosecution story, the respondent had

sown the Ganja in his field along with Wheat, however, in fact,

the respondent had never sown Wheat in his field. In the

submission of the learned advocate for the respondent - accused,

the raid was carried out at other place, in the filed of one Koli

person, but wrongly, shown as to be the place of respondent.

Besides, it is submitted that the respondent was never arrested

from his field but he was arrested while he was standing near a

neem tree situated nearby the police station.

4.3 Thus, making above submissions, it is urged that no

interference is required at the hands of this Court and eventually,

it is urged that the present appeal may be dismissed.

5. Heard the learned advocates for the respective parties and

gone through the impugned judgment and order of the trial Court

as well as the material on record.

5.1 Before adverting to the facts of the case, it would be

worthwhile to refer to the scope in acquittal appeals. It is well

settled by catena of decisions that an appellate Court has full

power to review, re-appreciate and consider the evidence upon

which the order of acquittal is founded. However, the Appellate

Court must bear in mind that in case of acquittal, there is

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prejudice in favour of the accused, firstly, the presumption of

innocence is available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reaffirmed and

strengthened by the trial Court.

5.2 Further, if two reasonable conclusions are possible on the

basis of the evidence on record, the appellate Court should not

disturb the finding of acquittal recorded by the trial Court.

Further, while exercising the powers in appeal against the order

of acquittal, the Court of appeal would not ordinarily interfere

with the order of acquittal unless the approach of the lower Court

is vitiated by some manifest illegality and the conclusion arrive at

would not be arrived at by any reasonable person, and therefore,

the decision is to be characterized as perverse.

5.3 Merely because two views are possible, the Court of appeal

would not take the view which would upset the judgment

delivered by the Court below. However, the appellate Court has

a power to review the evidence if it is of the view that the

conclusion arrived at by the Court below is perverse and the

court has committed a manifest error of law and ignored the

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material evidence on record. That the duty is cast upon the the

appellate Court, in such circumstances, re-appreciate the

evidence to arrive to just decision on the basis of material placed

on record to find out whether the accused is connected with the

commission of the crime with which he is charged.

5.4 In Mallikarjun Kodagali (Dead) represented through

Legal Representatives v. State of Karnataka and Others,

(2019) 2 SCC 752, the Apex Court has observed that, "The

presumption of innocence which is attached to every accused

gets fortified and strengthened when the said accused is

acquitted by the trial Court. Probably, for this reason, the law

makers felt that when the appeal is to be filed in the High Court it

should not be filed as a matter of course or as matter of right but

leave of the High Court must be obtained before the appeal is

entertained. This would not only prevent the High Court from

being flooded with appeals but more importantly would ensure

that innocent persons who have already faced the tribulation of a

long drawn out criminal trial are not again unnecessarily dragged

to the High Court".

5.5 Yet in another decision in Chaman Lal v. The State of

Himachal Pradesh, rendered in Criminal Appeal No. 1229

of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex

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Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC

189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC

445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt;

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and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption

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of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

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(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-

cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order

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would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC

228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the

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acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

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31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-

10) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which

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had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

6. In the aforesaid backdrop, the Court has extensively gone

through the depositions of the prosecution witnesses and the

other documentary evidence, as well as the impugned judgment

and order and found as under:

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i) so far as the preliminary panchnama is concerned,

PW-2 Vinod Ratilal and PW-3 Ranjitbhai Anakbhai, who were

the panch witness of the said panchnama, Exh. 30, do not

support the same and have declared hostile. In cross-

examination by the defence, the PW-2 has stated that the

place (field) in question belonged to one koli person.

Further, the PW-3 in his cross-examination by prosecution

has stated that panchnama, Exh. 30 was already prepared

and he had signed only.

ii) as per the prosecution case, the field in question was

situated on the north side of Goma river and on the east

side of Thoriyali, whereas, as per PW-7 Mavjibhai Danabhai,

Exh. 37, they had not gone to verify on the filed situated at

north side of Goma river, meaning thereby, they had not

verified the field in question;

iii) further, the complainant appears to have not

informed PW-6 Ranabhai Devshibhai Ulva, Exh. 36, CPI, as

to sending for verification of the place in question;

iv) as per PW-1 Natvarsinh Jilubha Chudasama, Exh. 13,

who is the complainant, he had prepared the preliminary

panchnama between 15:15 hours to 15:45 hours, however,

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it is his case only that till 15:45 hours, he was in bandobast

duty in SSC examination and hence, it appears to be not

feasible to undertake such a procedure as per the time

schedule given by him;

v) further PW-7 Mavjibhai Danabhai and one P. B. Zala

had gone to verify the place (field) in question, however, it

was not their case that they were personally knowing the

respondent - accused and/or they had any personal

knowledge as to the ownership of the land (field) and/or

that, they had verified the actual place (field) in question;

vi) further, it also comes on record that during raid also,

the raiding party had ascertain the place in question and/or

verified any revenue record in that regard;

vii) besides, as per the case of the respondent - accused,

he had never sown Wheat in his field, whereas, as per the

case of the prosecution, the so-called Ganja was sown

along Wheat;

viii) moreover, as per PW-6 Ranabhai Devshibhai Ulva,

Exh. 36, the Ganja was sown along with Wheat on the east

side of Rajka crop, whereas, as per PW-7 Mavjibhai

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Danabhai, Exh. 37, the Ganja in question was sown in

between Wheat, Cotton and Gadab, thus, there are

contradictions in the versions of the prosecution witnesses;

ix) further, as per PW-6 Ranabhai Devshibhai Ulka, Exh.

36, they had caught hold the accused nearby his field and

then, after undertaking some procedure, they entered into

the field of the accused with him, whereas, as per the

complainant (PW-1), they went to the field known as Bekad,

and upon seeking raiding party, the accused tried to flee

away but they stopped him.

x) further, there is nothing on record to show that the

seized Ganja was properly packed and sealed.

6.1 Thus, there appears contradictions in the deposition of the

complainant himself, whereas, some of the witnesses have not

supported the case of the prosecution. Besides, as discussed

herein above, the place, where the raid was conducted, is

doubtful as the versions of the prosecution witness appear to be

contradictory. The revenue record of the field belonging to the

present respondent - accused is availed, but the prosecution has

failed to prove that it is the same place where, the raid was

conducted. Further, there is also contradiction as to the timings.

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6.2 Thus, on re-appreciation and reevaluation of the oral and

the documentary evidence on record, as well as considering the

settled legal position, it transpires that the prosecution has failed

to prove the case against the accused beyond reasonable doubt

inasmuch as the ingredients of the offence alleged are not

fulfilled. The Court has gone through in detail the impugned

judgment and order and found that the learned trial Judge has

meticulously considered the depositions of all the witnesses and

came to the conclusion that the prosecution has failed to prove

the case against the accused beyond reasonable doubt.

7. In view of the aforesaid discussion and observations, in the

considered opinion of this Court, the prosecution has failed to

bring home the charge against accused for want of sufficient

material. The findings recorded by the learned trial Judge do not

call for any interference. Resultantly, in fleri, the appeal fails

and is dismissed accordingly. Impugned judgment and order

dated 12.04.2007, passed in Sessions (NDPS) Case No. 4 of 2006

by the learned Additional Sessions Judge and Presiding Officer,

12th Fast Track Court, Rajkot, recording the acquittal is confirmed.

Bail bond, if any, shall stand cancelled. R&P, if received, be

transmitted back forthwith.

[ A. C. Joshi, J. ] hiren