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2017 (12) TMI 777 - HC - Indian LawsOffence punishable under Sections 20 (b), 8 (c) read with Section 29 of NDPS Act - equal weightage given to the defence witness and that of prosecution witness - Held that:- The manner in which investigation has taken place and deposition of defence witness, DW-2 clearly reveal that accused no.1 was falsely implicated. It has come on record that reasonable doubt having been created of striking of deal of replacing one man with another and that identity of accused no.1 as the tenant and the only possessor of the impugned flat since two years is not established and proved and learned trial Judge has rightly given benefit of doubt. Apart from failure to comply with procedure mandatory in nature under Section 42 of the NDPS Act, even as per law laid down by the Constitution Bench in the case of Karnail Singh (2009 (7) TMI 1144 - SUPREME COURT) at this stage of deciding the appeal finally, we find that there was a breach of above provision, and when there was a specific allegation by the informant himself that the information given to SP, Mr.Bhatti, was in respect of contraband article possessed by one Punjabi and such information if were sent in a sealed envelop to the superior officer, there would not have arisen any doubt at all. Besides no warrant was obtained from learned Metropolitan Magistrate nor there was any authorization given by SP, Mr.Bhatti and PW-2 relied on resolution under Section 42 before entering the premises. Even serious doubt is created about handing over muddamal to the PSO, as PW-4, who was a part of the raiding party himself has prepared muddamal receipt and he had registered the offence in the station diary. He continued to retain the muddamal and that samples prepared from it till the same were handed over to Mr.Polra on 12.6.2001 in the morning. No mention is made in the register maintained. Thus, according to learned trial Judge the prosecution has failed to prove its case beyond reasonable doubt and, on the contrary, the manner in which investigation made an attempt to implicate the accused, clearly emerging from the deposition of DW-2 and DW-3 is rightly believed by learned trial Judge. We are in agreement with the law laid down by the Apex Court in the case of Sanjeev Kumar (2006 (11) TMI 679 - SUPREME COURT) and Aadam Ajmeri (2014 (5) TMI 1161 - SUPREME COURT) that equal weightage shall have to be given to the defence witness and that of prosecution witness. That collective and cumulative effect of the discussion, as above, result into dismissal of the appeal filed by the State of Gujarat warranting no interference in exercise of powers under Section 378 read with Section 386 of the Code of Criminal Procedure and the appeal is hereby rejected. The impugned judgment and order of acquittal dated 21st April 2005 of the respondents herein for the offence punishable under Sections 20 (b), 8 (c) read with Section 29 of the NDPS Act passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad in Sessions Caseis hereby confirmed. Bail bond, if any, of the accused stands discharged. Record and Proceedings be sent back to the concerned trial Court forthwith.
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