State Of Uttarakhand vs Darshan Singh Rawat & Another
2023 Latest Caselaw 2102 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
Leave to Government Appeal No. 157 of 2020
                  with
    Government Appeal No. 101 of 2020

State of Uttarakhand                           ... Appellant

                          Versus

Darshan Singh Rawat & another... Respondents

Mr. Amit Bhatt, Deputy Advocate General, assisted
by Mr. Pankaj Joshi, Brief Holder for the
State/appellant.
Mr. Jayvardhan Kandpal, Advocate for          the
respondents.

                                            Date: 07.08.2023


Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.)

Delay Condonation Application (CRMA No. 3453 of 2020)

By this application, the applicant/ State is seeking condonation of delay of 206 days in filing the accompanying leave to appeal.

2. For the reasons indicated in the delay condonation application, we are inclined to condone the delay. Accordingly, the delay condonation application is allowed. Delay in filing the petition seeking leave to appeal against the impugned judgment is condoned. Leave to Appeal No. 157 of 2020

3. By this petition filed by the State under Section 378(3) of CrPC, applicant- petitioner is seeking leave to appeal against the judgment and order dated 07.12.2019,

passed by learned Special Sessions Judge, Chamoli, thereby acquitting the respondents from the charge framed against them under Section 8/20 of NDPS Act, 1985.

4. Arguing the present petition seeking leave to appeal, learned State Counsel submitted that prosecution was able to prove its case beyond reasonable doubt. Mandatory provisions provided under N.D.P.S. Act have been complied with and prosecution witnesses have supported the recovery of contraband from the respondents. As such, findings of Trial Court are perverse. Thus prayer is made to grant leave to appeal.

5. We gather from impugned judgment that allegation against the respondents was that on 2.3.2017 at about 10.50 o'clock, 1 kg. 100 gm. charas was recovered from each of the respondents. It is not disputed that there is no independent public witness of alleged recovery. The Trial Court noticed that as per the prosecution story, the informant Satendra Singh (PW1) and Constable Bhagwan Singh (PW3) departed from Police Chowki Pipalkothi vide Rapat No. 8 at 8.30 AM on 2.3.2017, but no such GD has been brought on the record. Likewise, GD of departure of other police personnel has also not been brought on record. Thus, the presence of police personnel at the place of occurrence is doubtful.

6. Circle Officer (PW8) stated in his cross-examination that it was clearly mentioned in the letters of consent (Paper No.

9Ka and 10Ka), allegedly written by accused respondents, that accused were informed about their legal rights and the provisions contained under Section 50 of the NDPS Act, however, the Trial Court noticed that the same is not written in those letters of consent. PW8 also stated that letters of consent bear the signature of respective accused-respondents followed by the signatures of members of police team, however, signatures of the members of police team are not there after the signature of the accused, as noticed by the Trial Court. The Trial Court further noticed that Investigation Officer (PW5) has admitted in his cross-examination that the informant, in his statement, has not stated about preparing letters of consent nor the same is mentioned in the recovery memo. Thus, it was held that mandatory provisions provided under Section 50 of NDPS Act have not been complied with.

7. Learned Trial Court also held that link evidence, as to whether allegedly recovered contraband remained intact in Malkhana from the time of recovery till its submission to Forensic Science Laboratory has also not been proved. Thus the Trial Court concluded that prosecution was not able to prove the recovery beyond reasonable doubt.

8. Having heard learned Counsel for the parties and in the given facts, circumstances and evidence, we find no perversity in the impugned judgment, as the view taken by the Trial Court is also a possible view. It is settled

position of law that even if two views are possible, the view taken by the Trial Court acquitting the accused should be allowed to prevail.

9. It is also settled law that in an appeal against the judgment of acquittal, ordinarily the finding of acquittal should not be upset unless it is found that the same is totally perverse and some important piece of evidence, which might have resulted in the conviction of the accused, has not been considered by the Trial Court. In the present case, no such evidence has been pointed out.

10. Consequently, leave to appeal is refused. Leave petition is dismissed. Government appeal also stands dismissed accordingly.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 07.08.2023

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