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CR.MA/12049/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12049 of 2010
In
CRIMINAL
APPEAL No. 1713 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
RAMESHBHAI
BHAVSINGBHAI BARIYA - Respondent(s)
=========================================================
Appearance
:
MR
JK SHAH, APP for Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE P.P.BHATT
Date
: 01/04/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present
application is filed by the State of Gujarat, through learned Public
Prosecutor, High Court of Gujarat, Ahmedabad seeking leave to appeal
against judgment and order of acquittal dated 30.01.2010 passed by
the learned Additional Sessions Judge, Dahod in Special (NDPS) Case
No.1 of 2009.
2. Heard learned APP
Mr.J.K.Shah for the applicant-State.
3. Learned APP pressed
into service the grounds set out in the memo of the appeal and tried
to convince the Court that the learned Judge has committed an error
in recording acquittal. Learned APP submitted that from the evidence
led before the learned Judge, the learned Judge ought to have
recorded conviction for the offence alleged against the accused.
Learned APP submitted that the prosecution had produced copy of
village form No.8A, copy of village form No.7/12, pedigree of the
father of the accused, copy of house property of the accused, copy of
ration card and copy of election card.
4. On perusal of the
judgment and order, it is noticed that the learned Judge has
considered the evidence led before him in required detail. The
learned Judge has rightly observed in para-19 the reasons for not
believing the case of the prosecution. The learned Judge has
observed that, “the prosecution has failed to bring home the
fact that the place from where the alleged ‘Ganja’ plants were
recovered was land bearing revenue survey No.22/4”. The
learned Judge then proceeds to discuss that, “assuming for the
sake of argument that the land was bearing revenue survey No.2/4 then
the land was of joint ownership of the family members of the convict.
As his father-Bhavsinhbhai Dalsukhbhai Baria has expired, the land
devolved upon the widowed mother, accused, his younger brother and
two sisters and thus, the prosecution is not able to bring home the
guilt on the part of the accused, proving beyond reasonable doubt
that he was in exclusive possession of the land in question where
‘Ganja’ plants were found by the Police Officer”.
4.1 There is no
satisfactory evidence in the matter of both the aforesaid aspects and
therefore, the learned Judge is pleased to record acquittal.
5. The R & P was
called for and from the same, the relevant documents are perused by
the Court. The aforesaid question remains unanswered and therefore,
the Court finds that the acquittal recorded by the learned Judge on
the basis of the evidence led before the Court cannot be found fault
with. In the result, the application fails and the same is
dismissed.
(Ravi
R.Tripathi, J.)
(P.P.Bhatt,
J.)
*Shitole
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