1 cr-apln-2716-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2716 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Mr. Mohan Krishnant Khade ..Respondent [Ori.Accused] .... Smt. A.A.Mane APP for the Applicant-State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 13, 2010 P.C. : 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 6.1.2010 passed by the learned Sessions Judge-3, Kolhapur in Sessions Case No. 91 of 2008. By the said judgment and order, the respondent i.e. accused came to be acquitted of the offences punishable under Sections 8(c) and 20(b) of Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act ’). 2 cr-apln-2716-10 2 The prosecution case briefly stated is that a secret information was received by PW 5 who is a PSI. The information was that respondent was in illegal possession of Ganja and involved in sale of Ganja. Pursuant to the said information, raid came to be arranged, the Ganja was seized and accused came to be arrested. Hence, FIR came to be lodged. After completion of investigation, the charge sheet came to be filed against the respondent-accused. 3 I have heard the learned APP for the applicant-State of Maharashtra. I have perused the judgment and order passed by the learned Sessions Judge. I have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4 As far as sale of Ganja is concerned, there is no material on record to show that the respondent-accused was engaged in sale of Ganja. As far as possession of Ganja is concerned, it is seen that the information was received by PW 5 PSI but no compliance of Section 42(2) of the NDPS Act was made. It has been held in various cases by 3 cr-apln-2716-10 the Supreme Court including in State of Punjab Vs. Balbir Singh reported in 1994 Cri.L.J. 3702 and State of Punjab Vs. Baldev Singh reported in (1999) 6 S.C.C. 172, that compliance of section 42(2) of the Act is mandatory. As mandatory provision has not been followed in this case, a conviction cannot be sustained. Hence, no error can be found with the view taken by the learned Sessions Judge as the view taken by the learned Sessions Judge is a reasonable and possible view. 5 The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing 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. 6 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. I have 4 cr-apln-2716-10 already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order of acquittal. 7 In view of the above, application for leave to file appeal, is rejected. [ SMT. V.K.TAHILRAMANI, J.]