Dismissed

State of U.P. v. Nazim Ali and Another

Allahabad HC9 Dec 2021GOVA/1001814/2004

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed the State's appeal against an acquittal under the NDPS Act. The Court held that investigation flaws and lack of corroborative evidence failed to prove guilt beyond doubt, upholding the trial court's probable view.

What did the court decide?

Prayer for grant of leave to appeal rejected; memorandum of appeal dismissed.

State of U.P. Vs Nazim Ali and Another — Narcotics (NDPS) | Allahabad HC (2021)

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Chief Justice’s Court Daily Cause List Serial No.36

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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U/s 378 Cr.P.C. No. -1814 of 2004

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State of Uttar Pradesh ...Applicant/appellant

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Through : Dhananjay Singh, Additional Government Advocate

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v/s

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Nazim Ali and another

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...Opposite parties

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CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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NARENDRA KUMAR JOHARI, J.

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The present criminal appeal along with Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State Government - appellant against judgment and order dated 03.06.2004, passed by Special Judge (N.D.P.S. Act), Court No.3, Barabanki in Criminal Trial No.130 of 1995 (State of U.P. Vs. Nazim Ali), arising out of Crime No. 88 of 1995, under Sections 8/21 of NDPS Act, Police Station Jaidpur, District Barabanki and Criminal Trial No.131 of 1995 (State of U.P. Vs. Mohd. Rafi), arising out of Crime No.89 of 1995, under Sections 8/21 of NDPS Act, Police Station Jaidpur, District Barabanki. By the common judgment, the trial court has acquitted the accused-respondents Nazim Ali and Mohd. Rafi from the charges under Sections 8/21 of NDPS Act.

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2 U/s 378 Cr.PC No.1814 of 2004

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The brief facts of the case, according to the FIRs, are that on 04.05.1995 when informant Sub Inspector Kazi Mohammad Ibrahim along with his colleagues Sub Inspector Ramvir Singh and four others was on patrol duty in his area to maintain the law and order, they intercepted two persons. On their search, informant recovered 1200 Gms. and 900 Gms. and four pouch of heroin from the possession of both the persons, named Nazim Ali and Mohd. Rafi. The heroin was kept by them in four Canns of Sapan brand milk. The recovery was made from the bags carried by the accused persons in their hands.

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The Police party arrested the accused persons, prepared the Recovery Memo of the recovered contraband article. F.I.R.s of occurrence were lodged on 04.05.1995 under Crime No.88 of 1995 and Crime No.89 of 1995. The Investigating Officer visited the spot, prepared site map, sent the sample of Heroin to Forensic Science Laboratory, Lucknow for chemical examination and after completing investigation, the Investigating Officer submitted two separate charge sheets of each accused in the Sessions Court. The learned Sessions Judge framed the charges against the accused persons under Sections 8/21 of N.D.P.S. Act. The accused persons denied the charges and claimed trial.

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On behalf of the prosecution, PW 1 SI Tehsildar Singh, PW 2 SI Kazi Mohammad Ibrahim, PW 3 Constable Moharrir 520 Madan Singh, PW 4 Head Constable (retired) Satish Chandra Tiwari, PW 5 SI Deshraj Singh, PW 6 Constable 177 Nagendra Singh were examined as prosecution witnesses. After conclusion of prosecution evidence, the statement of accused persons was recorded. In their statement under Section 313 Cr.P.C. the accused persons denied the commission of offence and recovery. They stated that they had been arrested by the police from their residences. Nothing had been

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3 U/s 378 Cr.PC No.1814 of 2004

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recovered from their possession. Learned trial court after considering the arguments of rival parties, in the facts and circumstances of the case, acquitted the accused persons from the charges under Sections 8/21 of N.D.P.S. Act, against which the present appeal along with application for leave has been preferred by the State Government.

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Learned A.G.A., pressing the application under Section 378 (3) Cr.P.C., has submitted that the trial court has wrongly acquitted the accused persons. The trial court did not consider the settled principles of law, and could not assess and appreciate the evidence in accordance with law. Prosecution had succeeded in proving the charges against the accused persons but the trial court has not considered it and acquitted accused persons from the charges, therefore, the impugned judgment is liable to be set aside. Accordingly, the application for leave be allowed.

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Heard Shri Dhananjay Singh, learned Additional Government Advocate on the application under Section 378 (3) Cr.P.C. and perused the record.

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Record indicates that the investigation of the case was done by SI Tehsildar Singh, who was under the subordination of Station Officer Kazi Mohammad Ibrahim (informant), therefore, according to the case law in Pancham Singh Vs. State of U.P., 2003 (47) ACC 1022, the proceedings of investigation are found biased. The place where the accused persons were arrested was the place of Abadi. There were many shops and residential houses in the area. The month of occurrence was May where the people get up early in the morning but no evidence of any public witness has been procured on recovery memo. It has also been found that the sample of recovered article was sent to Forensic Science Laboratory after considerable delay. The docket was prepared approximately after two months from the date of recovery, i.e. on 01.07.1995, which was handed over to

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4 U/s 378 Cr.PC No.1814 of 2004

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F.S.L. on 03.07.1995. In the meantime, the article (specimen) was in possession of a constable. It has also been concluded that there was no seal on recovered article, which was produced in the court by prosecution after procuring the same from Mal Khana of the Police Station concerned. The above lapses are serious in nature and substantially affect the credibility of recovery of contraband article and its laboratory result. After overall assessment, the trial court held that the prosecution had failed to prove the guilt of accused persons beyond any shadow of doubt. Hence, the trial court has acquitted the accused persons from all the charges leveled against them. The view taken by the trial court is probable and is not perverse. The judgment of lower court is well discussed and founded on evidence available on record. No illegality or irregularity is found in the impugned judgment.

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We have reviewed and reconsidered the evidence upon which the order of acquittal has been passed by trial court. Learned trial court has proceeded with the presumption of innocence of the accused persons. With their acquittal this presumption of innocence stands fortified. No cogent reasons exist to interfere the judgment of trial court, which has to be considered from the point of view that, whether the view taken by the trial court was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits. When two views are possible, the High Court ought not interfere with the order of acquittal.

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Keeping in view the aforesaid failure of the prosecution to prove the guilt of accused, as noted by the trial court, we are of the considered view that the conclusion recorded by the trial court was probable and logical, which is based on valid reasons. The judgment of the trial court cannot be said to be illegal, illogical and improbable,

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5 U/s 378 Cr.PC No.1814 of 2004

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there is absolutely no hope of success in this appeal and accordingly, no interference is called for.

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