State Of J&K vs Lalan Yadav
2021 Latest Caselaw 1636 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                              SLA No. 12/2015
                                              in
                                              CRAA No. 11/2015
                                              CONCR No. 12/2015

                                              Reserved on 06.12.2021
                                              Pronounced on: 09.12.2021



State of J&K                                     ....Appellant(s)/Petitioner(s)

                 Through :- Mr. Aseem Sawhney, AAG


         Versus


Lalan Yadav                                                  ....Respondent(s)


                  Through :- Mr. Bhavishya Sudan, Advocate


CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                               JUDGMENT

1. The order of acquittal of the accused dated 13.06.2014 is sought

to be challenged by the appellant-State in accompanied appeal. As the

appeal has been filed after the expiry of period of limitation, application on

hand has been filed seeking condonation of delay in its filing. The appellant

has also filed an application seeking leave of this Court to file the appeal

against the acquittal.

2. Before dealing with the application seeking condonation of

delay it would be appropriate to examine the impugned judgment to find out

as to whether or not any interference is warranted therewith, so that injustice

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may not occasion merely because of lapse on the part of the appellant-State

in filing the appeal within the prescribed period of limitation.

3. The brief case of the prosecution is that while HC Rattan Singh

and party were on routine naka/duty, they intercepted accused/respondent

herein Lalan Yadav and seized 11 Kg of ganza. After the registration of FIR

No. 56/2010, the investigation was handed over to SI Niayat Ali, who

conducted the investigation, recorded the statements and performed all the

legal formalities and presented the challan before the Court of Principal

Sessions Judge, Kathua on 20.03.2010, who transferred the case to the trial

court on the same day. Charges were framed against the accused/respondent

herein under section 8/20 NDPS Act on 21.04.2010, who pleaded not guilty

and claimed to be tried. The prosecution was directed to lead evidence. The

prosecution has examined as many as eight out of nine cited witnesses to

prove the guilt of the accused/respondent herein. Prosecution evidence was

closed vide order dated 20.02.2014, and the case was posted for recording

the statement of the accused/respondent herein under section 342 Cr.P.C. on

the same day. The statement of the accused/respondent herein was recorded

on 23.04.2014, who in his statement denied the occurrence and the case was

posted for advancing arguments in terms of section 273 Cr.P.C. Vide order

dated 23.05.2014, the trial court did not find the case to be of no evidence

asked the accused/respondent herein to produce evidence in defence. But the

learned counsel for the accused/respondent herein submitted that he does not

want to produce any defence evidence. As such, the file was posted for

advancing arguments. During trial the statements of the prosecution

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witnesses were recorded and after hearing the learned counsel for the parties,

the learned Trial court delivered the judgement on 13.06.2014 whereby the

respondent herein /accused has been acquitted of the charges.

4. PW Dev Singh has stated that the accused was nabbed at 10.05

am, however, the other prosecution witnesses have deposed the time of

occurrence at approximately 6.30 am. No independent witness has been

brought as a witness to prove the prosecution case. Though, Investigating

Officer has deposed that no independent witness was willing to join,

however, he has failed to disclose names of the independent witnesses who

are not willing to join. The resealed packets of the narcotics which has been

dispatched to the FSL on 09.03.2010 has not been produced as a part of the

challan by the I.O. Consequently, the same has also not been proved. As per

the statement of the I.O. the seized material was deposited in malkhana, but

neither the extracts of malkhana register are part of the challan nor the then

malkhana Incharge is a witness cited in the challan. PW Shamshad Begum

deposed that she took the sealed packet to Tehsildar office for resealing, who

in turn directed the Naib Tehsildar to reseal the same. In her cross

examination she deposed that Incharge Police Post in her presence sealed the

ganza packet and then handed over the same to her for resealing. Dr. Pawan

Abrol, Asstt. Scientific Officer has proved his FSL report dated 13.03.2010,

but in cross examination he admitted that there is no mention of nature of

seal impressions in his report and he cannot remember the

specimen/impression of each seal. ASI Mohan Lal has been cited as a

witness in the challan, but he has not been examined as a witness during the

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trial, thereby breaking the link evidence. Therefore, the Trial court came to

the conclusion that the prosecution has miserably failed to proved the case

and the charges leveled against the accused.

5. I have heard learned counsel appearing for the parties and

carefully perused the material on record.

6. So far as the application seeking to condone the delay in filing

the Criminal Acquittal Appeal is concerned, a perusal of the file reveals that

there is 148 days delay in filing the appeal. The judgment impugned came to

be delivered on 13.06.2014. It is revealed that sanction to file the appeal was

given on 20.11.2014 and the appeal came to be filed only on 11.02.2015.

The applicant has failed to give any cogent reason for this delay, let alone

explain day-to-day delay in filing the appeal. Delay in filing appeal after the

statutory period of limitation prescribed cannot be condoned as a matter of

course. The party seeking condonation of delay was required to satisfy the

Court that there was sufficient cause justifying condonation of delay. Merely

saying that the delay was on account of procedural aspect, is not sufficient

cause to condone the delay. The Hon'ble Supreme Court in SLP (Civil)

Diary No(s).19846/2020 titled as Union of India Vs. Central Tibetan

Schools Admin & Ors., decided on 04.02.2021 while dismissing it on

account of delay observed as under:-

"We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file

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appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake!

The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No.22605/2020 decided on 11.01.2021]...."

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7. For the foregoing reasons, I do not find any merit in the

application and as such the application seeking condonation of delay

deserves to be rejected and accordingly, the same is dismissed. Resultantly,

in light of dismissal of condonation of delay application, the application

seeking leave to appeal as well as the Criminal Acquittal Appeal shall also

stand dismissed, being time barred.

(Tashi Rabstan) Judge JAMMU 09.12.2021 Pawan Angotra Whether the order is reportable? Yes/No Whether the order is speaking? Yes/No

PAWAN ANGOTRA 2021.12.09 14:09 I attest to the accuracy and integrity of this document