-^' :x/-'-' ^ c ^ //" ^^Gs.-"" ^n r}ry: \ .i.' \y ^•" fr-"1 .^f^" ...'-"^ IN 3HE HIQi COURT OF jaDIC&TUKE AT J&B&LPUR, (H.g. ) IIXSeTSRI.CASE No l^L OF 2000 CRIMINAL APPEAL No OF 2000 APPEuLAlW APPIiICAIW State or Madhya Pradesh -Vs KESPONDENT ACCUSED ; Arjua, aged about 28 years, son of Shri Liti, r/o Guniya Beda, Police Station I'.larayanpur.District ijagdalpui (K.P.) AP5LICAT.TON UNDER SECTION 378(iii) FOR GRANT OF LEAVE TO AP1FEAL UNDER SECTION 378(i) OF THE CODE OF CRTI.IIKAL PROCEDURE,1973. !ig^l!A!;;^'!n§B^^^;gBg^^?KKK§^^^^^l(^^^^;^^^^^^^^^^^^ ^^IK^^^^^S^N^%^'^K)^^^:i;;§;^^?c:^^g^^^^^^^^S^^^;i APPELl.ANT HlGHG&^l¥TOFGMHATTlSG^RH^TB»LASP1UNK (1-lon.lVlr.JusticePritinkerDiwaker) Cri.hn.P.lMo. 646 of 2010 State of Madhya Pradesh VERSUS RESPONDENT Arjun Shri Pravin Das Dy. GAforthe appliGant/State. Shri Alok Nigam counsel for the respondent/accused. APPLICATION UNDERSECTION 378 f3) OF THECODE OF CRIMINAL PROCEDURE. JUDGIVIENT (10.03.2011) This application has been filed against the judgment and order dated12.IO. 1999 passed by the Special Judge, Bastar (Jagdalpur) in Special Case No. 4;!/1999acquitting the respondent/accused of the offence under Seotion 20 (b) of the Narcotio Drugs and Psychotropic Substance Act (for short the "NDPS Act"). 2. Facts of the case in brief are that on 10.4.1999 a secrete information was received by B.S. Netam, Sub Inspector, Police Station, Narayanpur to the effect that four persons were sitting near a banyan tree at Bakharipara, Narayanpur carrying ganja in gunny bags and were preparing themselves fo sell the same. This information was reduced to writing by him and, then he went to the spot and found"that respondent/siccused was carrying 12Kg. of ganja in a gunny bag. After completing the legal formalities and informing him of his rights, 12 Kg. of ganja was seized, samples were prepared and seizure panchnama was made. Thereafter, on returning to police station entrieswere recorded and after obtaining the FSL report challan was filed on 28.5.1999 for the offence under Section 20 (b) ofthe NDPS Act. 3. So as to prove the guilt of the respondenVaccused the prosecution has examined 05 witnesses. Statement of the accused/respondent was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the allegation made h Jl ^^^."^IS^^S^^^^'^^'S^^S^ .{C^. :<:ii '<;?" ~'^^^v- against him and pleaded his innocence and false implication in the case. 4. After hearing counsel for the parties the Court below has acquitted the respondent/accused of the charges levelled against him by the judgment impugned. Hencethis appeal. 5. Counsel for the applicant/State submits that inspite of the overwhelming material available on record in favour of the prosecution, the Court below has committed anerror in ignoring the same and acquitting the respondenbfaccused of thecharge levelled against him by the judgment impugned. 6. On the other hand counsel for the respondent/accused supports the judgment impugned and submits that the Gourt below has taken into consideration each and every aspect of the matter and therefore the judgment impugned being based on the material available on record is fully justified and does not call for any interference in this appeal. 7. By the judgment impugned the Court below has acquitted the respondent/accused on the following grounds: (i) While recording the statement under section 313 Cr.P.C. it was revealed that the respondent/accused did not understand Hindi language and he understood only Gondi language and therefore translator was provided and thus the conetasion of the Court below was that when the respondent did not understand Mindi language how all the formalities were completed in Hindi in his presence and his consent was obtained in compliance with the provision ofSection 50 ofthe NDPS Act. (ii) Impression of seal in the in the seizure memoand FSL report are different and therefore the conclusion was drawn by the Court below that the seizure cannot be relied upon as the possibility of tempering cannot be ruled out. ^-^ (iii) Investigating officer did not deposit the sample ofthe seal in the Malkhana nor the entry to this effect was made in the register. (iv) Person who had taken the sample to the Forensic Science Laboratory has not been examined. (v) Provisions of Section 50 of the NDPS Act have not been complied with in letter and spirit. (vi) Seizure witnesses have not supported the case of the prosecution. 7. Thus minute examination of the material available on record goes to show that the findings of fhe Court below based on the grounds adumbrated above appear to fae fully justified. This Court does not see any infirmity or illegality in the same. Furthermore, being very much conscious of the existing legal position that in an appeal against acquittal if two views are possible-on the basisof evidence led by the prosecution and the trial Court taking one view favoured the accused, taking the other plausible view into consideration, is not permissible in law and therefore this Court is of the considered opinion that the judgment impugned acquitting the respondent /accused of the offences under Section 20 (b) of the NDPS Act, is just and proper and does not warrant any interference by this Court. Accordingly, the leave to appeal sought for by the appellanfState is hereby refused and the application filed by it for the said purpose is hereby dismissed. - ---——^'— 8d/-^. ^ Pritinker Diwaker Judge