Mandatory To Reveal Reasons For Arrest To Accused U/S 52 Of NDPS Act: Gujarat High Court Refuses To Quash Order Of Acquittal

The facts of the case were that brown sugar packaged in a plastic bag was retrieved from the Respondent, herein. After the filing of complaint and chargesheet, the witnesses were examined however certain panchas and witnesses turned hostile and supported the case of the prosecution. Subsequently, the trial court after perusing the evidence on record acquitted the accused.

The Appellant-authority contested that due process was followed under the NDPS Act and yet the Respondent was released basis some minor contradictions and omissions. Further, the witnesses had deposed in favour of the prosecution which was not taken into account. Per contra, the Respondent submitted that there were material contradictions in the commission of offence and that no illegality was committed. The witnesses had turned hostile but the Appellants had not proven the case beyond reasonable doubt.

Averring that the scope in acquittal appeals is limited, the Bench remarked:

"However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court."

Justice Rajendra Sareen ventured forth to observe that there was discrepancy in the statement of the witnesses with regard to the existence of the zip-locked bag wherein the muddamal was found. Additionally, per the Bench, the Police Inspector had not made any investigation regarding the secret letter which was forwarded to the police department for the recovery of the muddamal. There was also no evidence that Section 42(2) of the Act was complied with and that reaons for arrest as under Sections 52 and 57 were revealed to the Respondent. Additionally, no seal was affixed on the muddamal as required under Section 55 of the Act. The Appellants had failed to establish how there was a conspiracy between the co-accused in transporting the muddamal goods. Relying on Ali Mustufa Vs. State of Kerala, in AIR 1995 SC 244, the Bench highlighted:

"…it is mandatory for the department to explain to the accused about his right, otherwise the entire procedure and penal order are vitiated."

Reference was also made to State of Rajasthan versus Ram Niwas (2010) 15 SCC 463, wherein it was noted:

"The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

Keeping in view these facts and precedents, the High Court refused to interfere with the order of acquittal.

Case Title: STATE OF GUJARAT Versus PARAMJIT @ KALI HIMMATSINGH CHIMA

Case No.: R/CR.A/971/2006

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