1 cr-apln-3755-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3755 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Mr. Ravindra Jain @ Ravi Jain ..Respondent [Ori.Accused] .... Mr. V.B.Konde-Deshmukh APP for the Applicant-State Mr. Ayaz Khan and Nilofar Sayyed for Respondent no.1 .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : SEPTEMBER 30, 2010 P.C. : 1 Leave to amend granted. Amendment to be carried out forthwith. 2 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 12.5.2010 passed by the learned Special Judge for Greater Mumbai, in NDPS Special Case No. 100 of 2007. By the said judgment and order, the respondent i.e. accused came to be acquitted of the offences punishable 2 cr-apln-3755-10 under Sections 21 and 29 read with 8(c) of Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act ’). 3 The prosecution case briefly stated is that on 12.11.2006 PW 2 API Shinde received information at about 19.00 hours at Kandivali Unit that one person by name Ravi Jain (respondent) is coming in his vehicle in front of Purple Gymnasium at Vira Desai Road, Andheri (W) Mumbai to sell cocaine to his customer. The information was noted down in writing and informed to an immediate officer superior. Thereafter, raid came to be arranged and at 22.10 hours the raiding party found the car parked infront of Purple Gymnasium. One person was noticed sitting on the driver ’s seat. On personal search, he was found to have 7 gms. of cocaine in his left pocket of shirt and 100 gms. of cocaine in right hand side pocket of the pant. Thereafter, the said cocaine came to be seized and accused came to be arrested. After completion of investigation, the charge sheet came to be filed against the respondents-accused. 4 I have heard the learned APP for the applicant-State of Maharashtra. I have perused the judgment and order passed by the learned Special Judge. I have also perused the evidence which was produced by the parties. After carefully considering the matter, for the 3 cr-apln-3755-10 reasons stated herein below, I am of the opinion that the judgment and order passed by the learned Special Judge does not call for any interference. 5 On going through the judgment of the learned Special Judge, it is noticed that the main ground for acquitting the respondent-accused is that there was no compliance of Sections 42(2) of the said Act. The Supreme Court in the case of State of Punjab Vs. Balbir Singh reported in 1994 Cri.L.J. 3702/State of Punjab Vs. Baldev Singh reported in (1999) 6 S.C.C. 172, has held that compliance of section 42(2) of the Act is mandatory. 6 The learned APP submitted that the evidence of PW 2 API Shinde shows that there is compliance of Section 42(2) of the Act. He took me through the evidence of API Shinde wherein he has stated that he received information. He took entry in the station diary of the information so received at Sr.No.6. He telephonically informed the same to DCP and ACP and another person Police Inspector Aigal. However, the mandatory requirement under Section 42(2) of the said Act is that a copy the information taken down in writing, has to be sent to an immediate officer superior within 72 hours. Thus, in view of Section 4 cr-apln-3755-10 42(2) of the Act, giving information on telephone and without giving a copy of the information received which was noted down in writing, to the immediate officer superior, would not be said to be compliance under Section 42(2) of the Act. 7 The learned APP also drew my attention to the entry in the station diary (Exh.16) and pointed out that below said station diary entry which was taken down by PW 2 API Shinde, there are signatures of ACP, DCP and Sr. Police Inspector. He submitted that this shows that the copy of the information was put up before the immediate officer superior. However, on careful perusal of Exh.16 though at the bottom of the said document, the signatures of the Sr. P.I., A.C.P. and D.C.P. are found there is no date below these three signatures. Thus, there is no material to show that this information which was taken down in writing by PW 2 Shinde, a copy thereof was put up before the immediate officer superior within 72 hours. In view of the decision of the Supreme Court in Balbir Singh (supra) wherein it is held that compliance of Section 42(2) is mandatory, no error can be found with the judgment and order of the learned Special Judge acquitting the respondent accused. 8 The plenitude of power available to the Court hearing an 5 cr-apln-3755-10 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. 9 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 already observed that the view taken by the learned Special Judge is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order of acquittal. 10 In view of the above, application for leave to file appeal, is rejected. [ SMT. V.K.TAHILRAMANI, J.]