State Of J&K vs Riaz Ahmed
2021 Latest Caselaw 253 j&K

                                                                          205

               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                                       SLA No. 43/2017
                                       in
                                       CONCR No. 40/2017

State of J&K                                      .....Appellant(s)/Petitioner(s)
               Through :- Mr. Bhanu Jasrotia, GA

                         V/s
Riaz Ahmed                                                   .....Respondent(s)

               Through :- Mr. Mazher Ali Khan, Advocate


CORAM :

        HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
        HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                  ORDER

08.03.2021

Tashi Rabstan-J

1. By way of this condonation application, the appellant is seeking to

condone the delay of 325 days in filing the above titled Criminal

Acquittal Appeal against the judgment dated 28.11.2015 delivered by

the learned Principal Sessions Judge, Rajouri, whereby the accused,

namely, Riaz Ahmed was acquitted of the charge. Along with the

application for condonation of delay, the appellant has also filed SLA

No. 43/2017 seeking leave of the Court to file the appeal.

2. Prosecution case in brief as emerging out from the perusal of the

impugned judgment is that on 15.10.2011 Ayaz Sheikh Dy. S.P.

Operation Rajouri along with other police personnel while on naka

duty at Manyal Gali apprehended a person in the vehicle Tata Sumo

bearing registration No. JK03-7991, who tried to flee from the spot on

in CONCR No. 40/2017

seeing the police party. During the course of search of the vehicle, a

green colour polythene bag was recovered beneath the seat of the

driver and on opening the same, 'charas' was found in the said bag.

On weighing, the contraband (charas) was found to be 800 gms.

Accordingly, a case under Section 8/20 NDPS Act was registered, the

investigation was entrusted to Raj Kumar Dy.S.P. Thanamandi and

after thorough investigation the challan was presented and the charges

were framed against the accused, however, the accused denied the

charges and claimed to be tried. Accordingly, the prosecution was

directed to lead evidence and had produced eight witnesses to support

the charges.

3. Before dealing with the application for condonation of delay, we deem

it appropriate to examine the judgment delivered by the learned

Principal Sessions Judge, Rajouri to find out as to whether or not any

interference is warranted therewith, so that injustice may not occasion

merely because of lapse on the part of the appellant-State in filing the

appeal within the prescribed period of limitation.

4. We have heard learned counsel appearing for the parties and carefully

perused the record. The grounds inter alia taken by the appellant in

the memo of appeal are that the prosecution has established the case

against the respondent and there was sufficient material on record to

convict the respondent but the learned trial Court has not appreciated

the law, facts and evidence in its true and correct perspective.

5. It is evident from the impugned judgment that there was no evidence

on record to show the compliance to Section 55 of the NDPS Act,

1985 which creates serious doubt on the prosecution case. There is

in CONCR No. 40/2017

also no explanation from the prosecution as to what happened to the

charas and its samples after seizure till the samples were sent to FSL.

Prosecution also failed to produce the Malkhana register and the

Incharge, Malkhana of the police station to show that the samples

were deposited in the Police Malkhana for safe custody. It is for the

prosecution to prove that the samples were not tampered with from the

date of seizure till it reached the FSL for its chemical examination,

which has not been done in the present case, nor there is any evidence

on record to show where the sealed packets were kept by the police.

Also, the prosecution failed to examine the Incharge, Police Station in

this regard.

6. Another shortcoming in the prosecution case is that there is no seizure

memo of seal used for sealing the sample, nor there is any superdnama

to show that the said seal after sealing the sample was kept on

superdnama which itself demolishes the case of the prosecution.

Furthermore, the seized samples were required to be signed by the

SHO of the concerned police station as well as by the accused but

there is no evidence to prove the same, which is a very serious lacuna

and vitiates the trial. As per the statements of prosecution witnesses

independent witnesses were available at the time of seizure of the

contraband (charas), however, the prosecution has not associated any

independent witnesses. Non production of the independent witness to

prove this aspect of the matter affected the prosecution case against

the accused

7. One more important aspect about the failure of the prosecution case is

that there are contradictory statements from the witnesses about the

in CONCR No. 40/2017

seizure of the contraband. PW Constable Rakesh Kumar has deposed

in the cross-examination that seizure memo Rxt-P2/1 was prepared in

the Police Station, Thanamandi whereas the PW Constable Taseer

Ahmed has deposed that the seizure memo was prepared on spot. On

the other hand, witnesses to the seizure memo Ext-P1/1 namely Mohd.

Shabir and Mohd. Iqbal have deposed that the seizure memo Ext-P1/1

was prepared at the Police Station, Thanamandi, whereas I.O. has

deposed that the said seizure memo was prepared on the spot. These

contradictions are very grave and raise serious doubts on the

prosecution case.

8. It is well settled in law that this Court while hearing an acquittal

appeal can re-appreciate the evidence, however, it should not interfere

with the order of acquittal if the view taken by the trial Court is a

reasonable view of the evidence on record and the findings recorded

by the trial Court are not manifestly erroneous, contrary to the

evidence on record or perverse. [See Ram Swaroop and others vs

State of Rajasthan, (2002) 13 SCC 134; Vijay Kumar vs State by

Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs

State of Orissa, (2015) 11 SCC 124].

9. Viewed thus, we are in agreement with the observation made by the

learned trial Court that the prosecution has miserably failed to bring

home the charge against the accused and thus, the trial Court has

rightly acquitted the accused and the same needs no interference from

this Court.

in CONCR No. 40/2017

10. 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 325 days delay in filing the appeal. The judgment

impugned came to be delivered on 28.11.2015. In the application, the

State has not mentioned as to when it had applied for obtaining

certified copy of the judgment. It is revealed that sanction to file the

appeal was given on 05.04.2016 and the appeal came to be filed only

on 18.03.2017. 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 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

in CONCR No. 40/2017

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]...."

11. The application, therefore, does not deserve to be allowed on its own

merits. Accordingly, CONCR No.40/2017 is dismissed.

12. Consequently, Criminal Acquittal Appeal along with SLA No.43/2017

shall stand dismissed.

                                              (Vinod Chatterji Koul)            (Tashi Rabstan)
            JAMMU                                     Judge                          Judge
            08.03.2021
            Pawan Angotra

                                                            Whether the order is speaking? : No
PAWAN ANGOTRA                                               Whether the order is reportable? : No
2021.03.10 12:44
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