- 1 - S.B.Criminal Leave to Appeal No.60/2008 (State of Raj. vs. Pawan Kumar) DATE OF ORDER : 30/4/2008 HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.S.K.Vyas, P.P. This criminal leave to appeal has been filed by the State against the judgment dated 29/11/2007 passed by Learned Special Judge, NDPS Cases, Hanumangarh in sessions case NO. 14/2004 by which the learned trial court acquitted the non- petitioner Pawan Kumar for the alleged offence under Section 8/21 (B) of the NDPS Act. In this case, FIR was registered against the non-petitioner on 13/4/2004 on the basis of inspection made during patrolling at about 3.40 pm near Nagrana bus stop, Nagrana. The non- petitioner Pawan Kumar was suspected to have some commodity with him, therefore, upon investigation the Investigating Officer found a green polythene bag in his left pocket of the pant wherein light brown colour substance was found but no independent witness was present, therefore, efforts were made through constable Baldev Singh to call independent witness but he could not succeed in it. Upon inquiry, Pawan Kumar told that the commodity which is recovered from him is smack (heroin) for which he had no license or permit. Upon weighing the said commodity, it was found to be 12 gms. After recovery, sample of - 2 - 01 gm was taken and sealed separately and necessary formalities were made on the spot and accused was arrested. After receiving FSL report and completion of investigation, challan was filed against the non-petitioner for the offence under Section 8/21 NDPS Act. After filing of challan, charges were framed against accused non-petitioner and prosecution adduced evidence before the trial court and statement of accused respondent was recorded under Section 313 Cr.P.C. After hearing final arguments, the non-petitioner Pawan Kumar was acquitted of the charges under Section 8/21 NDPS Act vide impugned judgment dated 29/11/2007. Learned Public Prosecutor vehemently argued that the trial court has committed an error while acquitting the non-petitioner of the charges levelled against him. Further it is argued that cogent evidence was produced by the prosecution to prove the case against the accused non-petitioner but the same was not rightly considered, therefore, judgment passed by trial court is erroneous. As per learned Public Prosecutor, provisions of Sections 42 and 50 of NDPS Act are not applicable under the circumstances which were prevailing at the time of recovery of commodity, - 3 - therefore, the acquittal on technical ground is against the settled proposition of law and impugned judgment deserves to be quashed and set aside. Learned Public Prosecutor further argued that only on the basis of some contradiction the accused non-petitioner has been acquitted by the trial court, therefore, it is a fit case in which leave may be granted against the judgment dated 29/11/2007. I have considered the submissions made by learned Public Prosecutor so also perused the impugned judgment. In this case, admittedly there is violation of Sections 42 and 50 of NDPS Act, so also in para 20 of the judgment the learned trial court has discussed the irregularities in recovery proceedings and following the judgment rendered by this Court in Om Prakash vs. State of Rajasthan reported in 2007 (1) Cr.L.R. (Raj.) 448 held that in- charge of police station was Ashwini Kumar whereas recovery was made by Subey Singh and Subey Singh was not authorized person to make recovery. Upon perusal of the entire discussion made by the trial court while assessing the credibility of witnesses, I am of the opinion that trial court has rightly arrived at with the finding and rightly acquitted the accused non- petitioner Pawan Kumar of the charges levelled against him. The learned trial court found that prosecution has failed to prove its - 4 - case beyond reasonable doubt so also mandatory provisions of law were not complied with, therefore, non-petitioner accused is entitled for acquittal. In my opinion, learned trial court has not committed any wrong in acquitting the accused and no interference is warranted in this case. Accordingly, leave to appeal is hereby dismissed. (GOPAL KRISHAN VYAS), J. pankaj baweja