State vs Vinod Kumar & Anr on 29 August, 2008

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      S.B. CRIMINAL LEAVE TO APEAL NO.171/2008
                (State of Rajasthan Vs. Vinod Kumar & Anr.)



                Date of Order      ::    29.08.2008


                           PRESENT


       HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS


Mrs.Vidhyawati Boda, Public Prosecutor.



           Heard learned Public Prosecutor.



           In this leave to appeal the State of Rajasthan is

challenging judgment dated 16th May, 2008 passed by the

Special Judge, N.D.P.S. Cases, Sri Ganganagar in regular

criminal case No.5/2007 whereby he has acquitted the accused-

non-petitioners for the offence under Section 8/21 of the

N.D.P.S. Act.



           According to facts of the case, a case was registered

against accused-non-petitioners Vinod Kumar and Ved Prakash

for recovery of 8 gram smack from each of them at the time of

search by Manoj Maachra, Police Sub Inspector, P.S. Kotwali. As

per allegations levelled against accused-non-petitioners at the

time of search, 8 gram smack was found from the pocket of

Vinod Kumar and 8 gram smack was found from the pocket of
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Ved Prakash and both are not possessing any valid licence for

holding said contraband, therefore, they were arrested after

giving notice under Section 52 of the N.D.P.S. Act. The samples

of 4 gram smack from each were taken and sealed for the

purpose    of   analytic   chemical      examination   by   the   F.S.L.

Thereafter, a regular investigation was made and challan was

filed before the trial court.



            After filing challan, learned trial court recorded

evidence produced by prosecution as well as recorded the

statements of accused-non-petitioners under Section 313 Cr.P.C.

In all 23 prosecution witnesses were produced to prove the case

against accused-non-petitioners, but after final hearing, learned

trial court acquitted accused-non-petitioners from the charges

levelled against them vide judgment dated 16th May, 2008.



            Learned Public Prosecutor vehemently argued that

judgment rendered by learned trial court is contrary to the facts

and evidence on record.         It is also submitted that learned trial

court has failed to appreciate the evidence in proper manner, so

also, learned trial court was to consider important aspect of the

matter that recovery of contraband was made from the exclusive

possession of accused-non-petitioners and that recovery was

proved by way of evidence by prosecution.
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              Learned Public Prosecutor while inviting attention of

this Court towards the fact that acquittal is totally based upon

the   main     contention   of   accused-non-petitioners   that   no

independent witnesses were called at the time of recovery, but in

fact, due to non-availability of independent witnesses, search

was made in front of other police officials and, therefore, it

cannot be said that recovery was not properly made, so also, it

cannot be accepted that search was not conducted in accordance

with the provisions of Act. Further it is argued that acquittal is

based upon aforesaid reasons only, therefore, the judgment is

erroneous and passed without considering evidence in the right

perspective.



              I have perused the judgment impugned, so also,

considered     the   arguments     advanced   by   learned    Public

Prosecutor.



              In my opinion, admittedly, no independent witnesses

were called although the recovery was made in populated area.

Meaning thereby, the provisions of N.D.P.S. Act was not followed

at the time of making search and recovery from accused-non-

petitioners which is mandatory in nature.      The reason for not

calling independent witnesses is not accepted. It is also required
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             to be observed that learned trial Judge has specifically stated in

             the judgment that no averments were made by the S.H.O. for

             calling independent witnesses at the time of recovery. Meaning

             thereby, the so called contraband which is said to be recovered

             from accused-non-petitioners were not recovered in accordance

             with provisions of N.D.P.S. Act, so also, it is admitted case of

             prosecution that at the time of search and recovery no

             independent    witnesses   were   present   and   contraband   was

             recovered before police officials in the populated area.



                          In this view of the matter, I am of the opinion that

             the learned trial court has not committed any error while

             acquitting accused-non-petitioners from the charges of recovery

             of 8 gram smack from each of them because prosecution has

             failed to prove its case beyond reasonable doubt.



                          Hence, this criminal leave to appeal is hereby

             dismissed.



                                                   (GOPAL KRISHAN VYAS),J.

A.K. Chouhan/-