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Judgment
The present acquittal Appeal has been filed by the appellant-State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 28.09.2006 rendered by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City, in Special Case No.157 of 2004.
According to the prosecution case, on 06.04.2004, when Mr. Munavarkhan Pathan, was serving as Police Inspector, CID Crime, he received secret information. After verifying the said information, he registered the same in register and after intimating the superior officers, he proceeded for raid. Then, two panchas were called and informed about the information. Preliminary panchnama was drawn. Thereafter, two panchs went to the place of offence with necessary material, where they found that the accused person Jobanji Babaji set on Cot. After introduction, he was informed about the provisions of law. They recovered Ganja from accused in his black bag and then after, ASI Surshin Chauhan was sent for calling upon the FSL Officer for analyzing the sample and Police Constable was sent for calling upon the photographer and a person to weight the seized muddamal, which was net 370 gram. Thereafter, Mr. Patahan made two samples of 25-25 gram for FSL report and reserved sample which was sealed in plastic box in presence of panchas and police staff. Rest Ganja was put in box with signature slip of PSI Pathan, panchas and accused which was also sealed in box and he gave seizure memo to the accused. Thereafter, panchnama was drawn. The respondent-accused was arrested and complaint was filed against him under Sections 8(c) and 20(b) of the Narcotic Drugs and Psychotropic Substance Act before the Rakhiyal Police Station bearing II- 3058 of 2004 and investigation was handed over to Arvidbhai Ravjibhai Patel, PSI. After recording the statements of the witnesses, charge-sheet was filed and the said case was numbered as Special Case No.157 of 2004.
On the basis of above allegations, charge was framed against the respondent-accused vide Exh.5 and read-over and explained to the respondent-accused for the alleged offences and plea was recorded, wherein, respondent-accused pleaded not guilty to the charge and claimed to be tried.
In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidences.
Thereafter, after filing closing pursis by the prosecution, further statement of the respondent-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the respondent-accused has denied the case of the prosecution and has pleaded his innocence. The respondent-accused has submitted that a false case is filed against him and the prosecution has not followed the mandatory provisions of law.
After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City acquitted the respondent-accused from the charges levelled against him under.
Being aggrieved by and dissatisfied with the impugned judgment and order of acquittal and sentence passed by the Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City, the State of Gujarat has preferred this appeal.
Heard Ms. Monali Bhatt, learned advocate for the applicant-State and Mr. Vipual Sundesha, learned advocate for the respondent-accused.
Ms. Monali Bhatt, learned APP for the appellant-State. Ms. Bhatt, read the charge as well as oral evidence and contended that the prosecution has proved its case beyond reasonable doubt. She further contended that prima-facie it is established that muddamal article Ganja was recovered from the possession of the respondent-accused. The raid was conducted after obtaining required sanction from the competent authority. The same was reduced in writing and sent to superior officer. Therefore, the prosecution has followed mandatory provisions of law as per the NDPS Act, which the learned trial ought to have considered. She further contended that learned trial Judge did not consider the evidence of Trapping Officer, who stated in his deposition that muddamal Ganja was recovered from the possession of the respondent-accused. She further contended that the learned trial Judge committed grave error in acquitting the respondentaccused. Lastly, she prayed to allow the appeal by quashing and setting aside the judgment and order of the acquittal passed by the learned trial Judge.
As against this, Mr. Vipul Sundesha, learned advocate for the has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with. He then contended that as per the charge, prosecution failed to prove its case. He contended that the prosecution has not produced any documentary evidence worth the name on record to arrive at a conclusion that the prosecution has obtained necessary sanction, which was reduced in writing and then sent to superior officer. Therefore, it appears that there is a breach of Sections 42 and 50 of the NDPS Act. As per the evidence of trapping officer, muddamal in question was recovered from inside the room and not from physical possession of the respondent-accused. Further, no independent witnesses are examined and the witnesses who are examined, did not give any corroborative evidence. Lastly, he prayed to dismiss the appeal.
I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant.
In present case, at the time of raid, the respondentaccused was sitting on Cot near to Temple and the muddamal Ganja recovered from inside the room and not from his physical possession. There is no evidence on record worth the name to prove that the muddamal was recovered from the possession of the respondent-accused. Further, it appears from the record that the information received by the trapping officer was not reduced in writing and did not send to the superior officer. Hence, it is crystal clear that the prosecution has not followed mandatory provisions of law. The Apex Court in plethora of decisions has held that when mandatory provision of law is not followed, a person cannot be convicted under the NDPS Act.
In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 28.09.2006 rendered by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City, in Special Case No.157 of 2004, acquitting the respondent?accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.