State Of J&K vs Riaz Ahmed

Tashi Rabstan, J

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.

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 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.

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.

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.

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 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.

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

One more important aspect about the failure of the prosecution case is that there are contradictory statements from the witnesses about the 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.

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].

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.

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 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]….â€​

The application, therefore, does not deserve to be allowed on its own merits. Accordingly, CONCR No.40/2017 is dismissed.

Consequently, Criminal Acquittal Appeal along with SLA No.43/2017 shall stand dismissed.