1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3889 OF 2009 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Uttam Sahdeo Kamble and Anr. ..Respondents .... Mrs.P.H.Kantharia APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 17th MARCH, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 7.5.2009 passed by the learned N.D.P.S. Special Judge, Pune in NDPS Special Case No.161 of 1993. By the said judgment and order, the respondents i.e. accused no.4-Uttam Kamble and accused no.2-Ballappa Pujar came to be acquitted of the offences under Section 20(b)(ii)(C) of the N.D.P.S.Act, 1985 and Sections 420, 467 and 471 of IPC. 2 The prosecution case briefly stated is that on 16.12.1992 at 2 1.30 p.m. Police Inspector Patil received information that Ganja weighing about 250 kgs. was kept in railway quarter GPR-143 at Ghorpadi, Pune. Pursuant to the said information, raid was conducted on the said premises and 257 kgs. of Ganja came to be seized from the said premises. The further case of the prosecution is that the parcels containing Ganja was addressed to one Raju Khandekar, however, respondent no.1 forged the signatures of Raju Khandekar on the receipt and collected the parcels containing Ganja and respondent no.2-Uttam with the help of another accused stocked parcels containing Ganja in the railway quarter. After completion of investigation, the charge sheet came to be filed against the respondents-accused. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Special Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated hereinbelow, we are of the opinion that the judgment and order passed by the learned Special Judge does not call for any interference. 4 It is the specific case of the prosecution that prior information 3 was received about Ganja being stocked in the railway quarter. There is no evidence on record to show that the said information was reduced into writing and the copy thereof was sent to the immediate superior as required under Section 42(2) of the N.D.P.S.Act. From the evidence on record, non-compliance of Section 42(2) of the N.D.P.S.Act is writ large. 5 Keeping in mind the grave consequences which are likely to follow on proof of possession of illicit articles under the Act, namely, the shifting of the onus to the accused and severe punishment to which he becomes liable, the legislature has enacted and provided certain safeguards in various provisions of the Act including Sections 42 and 50 of the N.D.P.S.Act. It has been held in the series of decisions including the decision reported in State of Punjab Vs. Balbir Singh, 1994(3) SCC 299 that compliance of the provisions of Section 42(2) of N.D.P.S.Act is mandatory and failure to comply with the requirements of Section 42(2) would affect the prosecution case and therefore, vitiate the trial. In Beckodan Abdul Rahiman Vs. State of Kerala (2002) 4 S.C.C. 229 also it has been held that in case of violation of mandatory provisions including 42(2) of the N.D.P.S. Act, the accused was entitled to acquittal. In the present case, we find that there is total non- compliance of Section 42(2) of the N.D.P.S. Act, hence, no conviction 4 could have been awarded under the N.D.P.S.Act. 6 Moreover, as far as these two accused persons are concerned, nothing has been recovered at their instance or from their house. Nothing has been brought on record as to who was the owner and who was in actual possession of railway quarter GPR-143. Moreover, the property has also not been produced by the prosecution. The prosecution has miserably failed to establish that the respondents were either in possession or in occupation of railway quarter bearing No.GPR-143. Thus, there is no material to show that the accused were in conscious possession of Ganja which came to be seized by the police. 7 According to the prosecution, it was respondent no.1 Uttam who pretended to be Raju Khandekar and signed the railway receipt and delivery chalan in the parcel office and prepared forged document in that respect and took the delivery of parcel containing Ganja. However, there is nothing in the evidence of the prosecution witnesses regarding identification of the handwriting and signature of respondent no.1 Uttam on the railway receipt Exhibit-26 and connected documents like Exhibits-35, 39 to 69. 5 8 The learned Special Judge has considered all the above aspects and thereafter he has reached the conclusion and in our opinion, rightly so, that the prosecution has not been able to prove beyond all reasonable doubt that the respondents were in any way connected with the Ganja which came to be seized. Moreover, the non- compliance of Section 42(2) shakes the very foundation of the prosecution case and renders the case as not established. On going through the evidence on record, we find that the order of acquittal by the learned Sessions Judge is a reasonable and possible view. 9 The Supreme Court in the case of Khedu Mohton and others Vs. State of Bihar reported in 1970(2) SCC 450, has observed that in a case of appeal against acquittal if two reasonable conclusions can be reached on the basis of evidence on record, then, the view in support of acquittal of the accused should be preferred. It further observed that the fact that the High Court is inclined to take a different view on the basis of the evidence on record is not sufficient to interfere with an order of acquittal. 10 The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing 6 an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different plausible view may arise on the evidence. It has been so observed by the Supreme Court in K.Ramakrishnan Unnithan Vs. State of Kerala, AIR 1999 SC 1428. 11 So also, the Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Special Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 12 In view of the above, application for leave to file appeal, is rejected. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]