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TMI Blog2022 (3) TMI 1617X X X X Extracts X X X X X X X X Extracts X X X X ..... very of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the Trial Court in disbelieving the case of the prosecution. The assessment on facts made by the Trial Court was absolutely correct and did not call for any interference by the High Court - the judgment and order passed by the High Court is set aside - the order of acquittal recorded by the Trial Court is restored - appeal allowed. - Hon'ble Judges U.U. Lalit, S. Ravindra Bhat and Pamidighantam Sri Narasimha, JJ. For the Appearing Parties: A. Sirajudeen, Sr. Adv./Amicus Curiae, S. Mahendran, AOR, Parnam Prabhakar, Aditya Dhawan, Advs., Chander Shekhar Ashri and Abhinav Mukerji, AORs JUDGMENT U.U. Lali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not trace any independent witnesses. The I.O. associated Const. Om Prakash (PW-7) and Const. Bhupinder Singh as witnesses and checked the bag. On checking, stick and pancake like charas was recovered from the bag and some of the sticks were found to be wrapped in a polythene. The charas was weighed with the help of electronic scale. It weighed 1 kg. 500 grams. The charas was repacked in the same bag and bag was sealed in a cloth parcel with three seals of seal impressions A . The specimen of seal was obtained separately. Seal after use was handed over to Const. Om Prakash (PW-7). The I.O. filled in the NCB-I form in triplicate. Thereafter, I.O. prepared rukka. It was sent to the Police Station. FIR Ext. PW-2/B was registered. The I.O. pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police party was utilized to check the weight of the contraband. Thereafter, the procedure for taking personal search of the Accused was followed. 4. The entire evidence was considered by the Trial Court and in the opinion of the Trial Court, broadly three features emerged from the evidence: 1. The Report of the FSL Ex. PX did not show anywhere that the resin was of cannabis plant in order to bring it within the definition of Charas . 2. The Police did not give any option to the Appellants to be searched before a Magistrate of a competent Gazetted Officer. 3. Going by the evidence on record, the case of the prosecution could not be believed. With this view, the Trial Court by its judgment and order dated 31.08.2012 acquitted the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court had considered the matter from the perspective stated above. As a matter of fact, the High Court proceeded to consider the evidence on record straightaway without considering the reasons that had weighed with the Trial Court. The approach to be adopted was laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 as under: 7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken. It is true that the personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the Trial Court in disbelieving the case of the prosecution. 10. Considering the totality of the circumstances, in our view, the assessment on facts made by the Trial Court was absolutely correct and did not call for any interference by the High Court. 11. We, therefore, allow this appeal, set-aside the judgment and order passed by the High Court and restore the order of acquittal recorded by the Trial Court. The fine, if any, paid by the Appellants be returned to them. 12. The Appellants shall be set at liberty forthwith unless their custody ..... X X X X Extracts X X X X X X X X Extracts X X X X
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