Jammu & Kashmir High Court
State Of J&K vs Abdul Hafeez & Anr on 10 March, 2021
Sr. No. 503
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No.109/2010
Reserved on 03.03.2021
Pronounced on 10.03.2021
State of J&K ...Appellant(s)
Through: Mr. Adarsh Bhagat, GA.
versus
Abdul Hafeez & anr. ...Respondents
Through: Ms. Supriya Chouhan, Advocate.
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
Tashi Rabstan-J
1. This Criminal Acquittal Appeal is directed against the judgment dated
12.05.2010 delivered by the learned Sessions Judge (under NDPS Act) in File
No.01/Special Challan, whereby, the respondents-accused came to be acquitted
of the charges under Section 9-A/25 of NDPS Act by giving them the benefit
of doubt.
2. We have heard learned counsel appearing for the parties, gone through
the file and also perused the judgment under appeal as well as the file of trial
Court.
3. The only ground taken by the appellant in the memo of appeal is that the
learned trial Court has mis-appreciated the law and evidence on record, and has
not appreciated the statement of prosecution witnesses in their totality.
4. PW Mohd Sayeed, a shopkeeper has specifically deposed that neither
accused persons were arrested nor any recovery was effected by the police in
his presence.
2 CRAA 109/2010
5. PW Mukhtar Ahmed, driver of the vehicle has specifically deposed that
the goods, which were brought by him, were not giving any foul smell. He
further deposed that he did not see those packets in the Court nor police got
identified the same. He further deposed that the accused persons were not
arrested in his presence by the police nor recovery was effected in his presence.
6. PW Zakir Hussain, Constable has specifically deposed that on
26.06.2008 when he along with other police personnel were on patrolling duty
and when reached near Haji Market, they saw two persons present in court in
suspicious conditions possessing gallons which were seized, however, the
seizure memo of gallons do not bear his signatures.
7. PW Mohd. Alam has specifically deposed that his signatures were
obtained by the police on some papers on spot and on some papers in the police
station, but the contents of the papers were not read over to him neither he read
the same. He further deposed that he did not see the accused persons on spot
nor in the police station. Further, he had no knowledge as to how much gallons
were there and what was contained in the same.
8. PW Sandeep Sharma had deposed that the goods/articles were seized at
5 PM, whereas other witnesses had deposed that the time was 7:15 PM.
9. PW Sanjay Kumar, Constable had deposed that the police recorded his
statement after two months of occurrence. He further deposed that he signed in
english on the seizure memo, whereas the seizure memo shown to him do not
have his signatures in english. He also deposed that the seizure memo shown to
him at the time of deposition is not the same.
3 CRAA 109/2010
10. Thus, a perusal of the impugned judgment as well as record of trial court
reveals that the statements of independent witnesses do not support the version
of police theory nor corroborate with the statements of rest of the prosecution
witnesses. All other witnesses are police personnel and their statements seem to
be very contradictory regarding the seizure and possession of the contraband
from the accused persons. Further, the statements of material witnesses have
not been recorded to prove the guilt of accused persons. The acquittal of
respondents-accused seems to be well merited.
11. It would be appropriate to reproduce hereunder the relevant portion of
judgment delivered by the Apex Court in Bindeshwari Prasad Singh vs State of
Bihar, (2002) 6 SCC 650:
"... In absence of any manifest illegality, perversity and
miscarriage of justice, the High Court would not be justified in
interfering with the concurrent finding of acquittal of the accused
merely because on re-appreciation of evidence it found the
testimony of the PWs to be reliable whereas the trial court had
taken an opposite view."
12. We are also of the view that the trial court on the basis of meticulous
appreciation of evidence on record has acquitted the respondents of the
offences alleged against them; therefore, the same do not call for any
interference.
13. For the stated reasons and facts and the position of law coupled with the
reasoning recorded by the learned trial Court, we do not find any solid and
weighty reason to take a view other than the one taken by the learned trial
Court; rather the trial Court in these circumstances had no option but to acquit
the accused for want of adequacy of evidence. Accordingly, Criminal Acquittal
4 CRAA 109/2010
Appeal fails and the impugned judgment dated 12.05.2010 recording acquittal
of respondents is upheld.
14. Send down the record of trial Court along with a copy of this judgment.
JAMMU (VINOD CHATTERJI KOUL) (TASHI RABSTAN)
10.03.2021 JUDGE JUDGE
(Anil Sanhotra)
ANIL SANHOTRA
2021.03.10 12:57
I attest to the accuracy and
integrity of this document
