State Of Jammu And Kashmir Through vs Mohinder Singh
2021 Latest Caselaw 254 j&K

                                                                          206
             HIGH COURT OF JAMMU AND KASHMIR
                       AT JAMMU

                                                CONCR No. 83/2017
                                                c/w
                                                SLA No. 84/2017

State of Jammu and Kashmir through                  ....Appellant(s)/Applicant(s)
Station House Officer, Police Station,
Gandhi Nagar, Jammu


                 Through :- Mr. Aseem Sawhney, AAG.


        Versus


Mohinder Singh                                                 ....Respondent(s)


                   Through :- None.

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

                                 JUDGMENT

Tashi Rabstan-J

1. By way of instant condonation of delay application, the applicant-

appellant (State) seeks to condone the delay of 165 days in filing the above titled

Criminal Acquittal Appeal against the acquittal of the accused in terms of

judgment dated 08.12.2016 delivered by the learned First Additional Sessions

Court, Jammu (Special Court Under NDPS Act), whereby the respondent herein

has been acquitted of the charge framed against him for the commission of

offence punishable under Section 15 of NDPS Act. Along with the application to

condone the delay, the applicant-State has also filed Special Leave to Appeal

bearing SLA No.84/2017 seeking leave of this Court to file the accompanied

criminal acquittal appeal.

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

deem it appropriate to examine the judgment delivered by the learned First

Additional Sessions Court, Jammu, 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 of appeal within the

prescribed period of limitation. We note that we are finding in case after case

appeals being filed in routine without examination as to whether there is legal

merit in them or not. This Court is being burdened with appeals completely

devoid of legal merit.

3. The case of the prosecution is that on 11.11.2010, a police party at

Digiana Pulli, Jammu, comprising of ASI Surjit Singh (PW-1), Sgct Udheyvir

Singh (PW-5), SPO Narinder Kumar (PW-6), while checking a car bearing

registration No.JK02AK-1807 driven by its driver, namely, Mohinder Singh,

respondent herein, recovered 11 kg of poppy straw from the car under possession

of the aforesaid driver and accordingly, FIR No. 245/2010 was registered at

Police Station Gandhi Nagar, Jammu for the commission of offence punishable

under Section 15 of NDPS Act.

The accused-respondent herein refuted the charge and as such was

tried.

4. A perusal of the judgment impugned reveals that as-many-as

thirteen (13) witnesses were enlisted/cited and out of which, the prosecution had

produced/examined only four witnesses, namely, ASI Surjit Singh (PW-1), Sgct.,

Udheyvir Singh (PW-5), SPO Narinder Kumar (PW-6) and Darshan Lal (PW-7).

The above referred four prosecution witnesses contradicted each other in respect

of their statements qua weighing of the poppy straw.

5. We have heard Mr. Aseem Sawhney, learned AAG at length,

considered his submissions and perused the memo of the appeal along with

impugned judgment.

6. A perusal of the judgment impugned reveals that though the eye

witnesses were enlisted/cited by the prosecution, however, the formal eye

witnesses who effected the search, recovery and seizure, were not

produced/examined by the prosecution. Even the Investigating Officer and the

Forensic Expert were not produced/examined.

7. Learned trial Court has also opined in the judgment impugned that in

absence of examination of Investigating Officer, the accused was prejudiced

from seeking any explanation with regard to contradictions in the statements of

witnesses and in absence of examination of forensic expert, seized material

cannot be stated to be contraband, therefore, we are of the opinion that even the

search, recovery and seizure were proved in absence of examination of

Investigating Officer and expert evidence, the learned trial Court has rightly

came to the conclusion of acquitting the respondent from charge leveled against

him.

We are also in agreement with learned trial Court's observation that

the prosecution has failed to prove its case and as such, the acquittal of

respondent is well-merited and needs no interference.

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. The

Supreme Court in 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, has taken the

same view as has been taken by the trial Court in the case.

9. There is other aspect of the matter which cannot lose sight of. The

application seeking to condone the delay in filing the Criminal Acquittal Appeal

is concerned, a perusal of the record reveals that there is 165 days of delay in

filing the criminal acquittal appeal. The judgment impugned came to be

delivered on 08.12.2016. In the application, the appellant-State has not

mentioned as to when it had applied for obtaining certified copy of the judgment.

Though it is revealed that sanction to file the appeal was accorded by the

Government in terms of Government Order No.1271-LD(ACQ) of 2017 dated

17.03.2017, whereas the application seeking Special Leave to Appeal came to be

filed only on 21.08.2017, that is, after complete lapse of about more than five

months of sanction accorded to file the appeal. The appellant-State has failed to

give any cogent reason for this delay, let alone explain day-to-day delay in filing

the appeal. The 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.

10. In view of the foregoing discussions and given circumstances of the

case, the application to condone the delay of 165 days in filing the criminal

acquittal appeal, does not deserve to be allowed on its own merits and as such,

the same is dismissed.

We are also of the considered view that there is no illegality or

infirmity in the findings returned by learned First Additional Sessions Court,

Jammu in the impugned judgment dated 08.12.2016. Resultantly, in light of

dismissal of condonation of delay application bearing CONCR No.83/2017 and

the settled legal position as discussed here-in-above in paragraph No.8, the

accompanied Criminal Acquittal Appeal along with Special Leave to Appeal

bearing No.84/2017 shall also stand dismissed.

                                         (Vinod Chatterji Koul)                     (Tashi Rabstan)
                                                         Judge                               Judge
           JAMMU
           08.03.2021
           Surinder

                                                 Whether the order is speaking?          Yes/No
                                                 Whether the order is reportable?        Yes/No




SURINDER KUMAR
2021.03.10 15:20
I attest to the accuracy and
integrity of this document