1 S.B.CRIMINAL LEAVE TO APPEAL NO.118/2008 (State Vs. Idrish Pathan and anr.) Date of Judgment : 19-11-2008 HON'BLE MR.JUSTICE GUMAN SINGH Mr.D.D.Sharma, Public Prosecutor for State. Mr.Rajnish Gupta for Mr.R.C.jatav, for accused-respondents. This application for leave to appeal has been filed by the State against the judgment of acquittal passed by learned Special Judge, NDPS C ases (Sessions Judge), Jhunjhunu dated 1.3.2007 whereby the accused-respondents were given benefit of doubt and were acquitted of the offence under Sec.8/18 of the NDPS Act. Heard learned Public Prosecutor for the State and learned counsel for the accused- respondents. The learned Public Prosecutor has contended that the learned trial court has failed to appreciate the evidence in right perspective while giving benefit of doubt and acquitting the accused-respondents and application for leave to appeal may be granted. 2 Per contra, learned counsel for the accused-respondents has supported the judgment of the trial court on the ground that recovery was not effected from accused- respondents. They have been falsely implicated in this case on the basis that bag recovered containing contraband article was thrown by them and, as such, no liability can be fastened under the NDPS Act. In view of rival submissions and on perusal of the evidence adduced during trial and on examining the judgment of the trial court, it is revealed that the bag was recovered by the police not from the accused-respondents but on reaching to the by-pass road, Churu, bag was produced by one Makbul and who reported that one un-known person of the description mentioned by him, had thrown that bag on his house and he was seen while running away by Guddu, Suresh etc. The bag was found to contain 2 packets containing 980 and 990 gms opium and the learned trial court has marshelled the evidence adduced by prosecution and has come to the conclusion that person who threw the bag was not identified in the court and the 3 identification of Sahil and Makbut in jail is not of much significance as nothing from them as they were not identified in the court and also that it is not proved that the contraband article was found from their conscious possession. In view of above evidence discussed, the learned trial court has extended the benefit of doubt to the accused-respondents. The finding arrived at by the trial court appears to be consistent with law as no contraband article has been recovered from the conscious possession of the accused- respondents and it is not a case where application under Sec.35 of the NDPS Act can be invoked which provides presumption in favour of the prosecution for culpable mental state. Thus there is no ground to interfere in the order of acquittal and as such, petition for leave to appeal deserves to be dismissed. Consequently the same is dismissed. (GUMAN SINGH),J. sandeep/- item no.6