IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1365 OF 2001 (OLD NO.20/1998) Balbir Singh S/o Nika Ram R/o Village Ramdaram P.S. Nerwa, District Shimla, Himachal Pradesh ……… Appellant Versus The State ……… Respondent Dated: March 30, 2009 Sri Sandeep Kothari, Advocate holding brief of Sri Shobhit Saharia, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 9.12.1997 passed by Additional Sessions Judge, Dehradun in Special Sessions Trial No.18/1994, State Vs. Balbir Singh, whereby the learned Additional Sessions Judge, has convicted the appellant/accused Balbir Singh u/s 8/20 of Narcotics Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of ten years with fine of Rs.1.00 Lac. In default of payment of fine, further two years’ R.I. was awarded. 2. I have heard Sri Sandeep Kothari, Advocate holding brief of Sri Shobhit Saharia, learned counsel for the appellant as well as Sri M.A. Khan, learned brief holder for the State. 2 3. Officer-In-Charge, Record Room (Civil) /District Judge’s Court, Dehradun has reported vide his report dated 17.11.2005 that the record of the Special Sessions Trial No.18/1994, State Vs. Balbir Singh has been turned to ashes due to fire in record room in the night of 7.12.1999. Hence, the record cannot be sent. 4. Learned Counsel for both the parties have submitted that after passing of the order dated 9.12.1997 which is under challenge, now the period of about 11 years has been expired and now the reconstruction of the record or retrial is not possible. 5. I am fortified my view with the judgment rendered by Allahabad High Court in the case of Aziz Khan Vs. State of U.P. reported in ACC 1992 (29) 223, it was held as under:- “Where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. The occurrence had taken place on 15.10.76 i.e. 15 years back and the complete record has not been reconstructed. Applying the principle laid down in the above mentioned authorities, we are of the opinion that the appeal of Aziz Khan should be allowed and his conviction and sentence should be set aside and the government appeal against aquittal of the accused- respondents is liable to be dismissed”. 6. For the reasons recorded above and in view of the aforesaid quoted judgment of the Division Bench 3 of the Hon’ble Allahabad High Court, the appeal is liable to be allowed. 7. Accordingly, the appeal is allowed. The conviction of the appellant/accused Balbir Singh u/s 8/20 of Narcotics Drugs and Psychotropic Substances Act, 1985 and sentence of ten years’ R.I. with fine of Rs.1.00 Lac, is hereby set aside. The accused/appellant is on bail. He need not surrender. Bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) 30.03.2009 RG