TMI Blog2016 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... g the finding of conviction against the appellant. - Decided against the petitioner. - Criminal Appeal No. 957 of 2015 - - - Dated:- 29-6-2016 - Abhay Manohar Sapre And Ashok Bhushan, JJ. JUDGMENT Abhay Manohar Sapre,J. 1) This appeal is filed against the final judgment and order dated 22.07.2013 passed by the High Court of Uttrakhand at Nainital in Criminal Appeal No. 311 of 2002 whereby the High Court dismissed the appeal filed by the appellant herein and affirmed the judgment and order dated 27.11.2002 passed by the Special Judge, Pithoragarh in Sessions Trial No. 17 of 1996 convicting the appellant herein under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found. The authorities then took 100 gm. Charas for its examination in the Laboratory and after taking the sample, it was sealed and the remaining Charas was kept in light green colour polythene bag. The bag was then sealed. Informing the accused of the offence which he has committed, he was then taken into custody. 3) On the basis of the recovery, at 4.00 p.m. a FIR was registered against the appellant-accused at the P.S. Jauljibi under Section 20 of the NDPS Act. The case was committed to the Court of Special Judge, Pithoragarh under Sessions Trial No. 17 of 1996. 4) After examination of witnesses and recording of the statements, the Special Judge, by order dated 27.11.2002, found the appellant-accused guilty of the offence puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered bad in law. It was also urged that since the statement of accused recorded in Section 313 proceedings coupled with the affidavit of one Maan Singh (at page 30 of Vol. II of appeal paper book marked as Annexure-A/3) was neither taken into consideration and much less appreciated and, therefore, the appellant's conviction is rendered bad in law. 10) Learned counsel elaborated his submissions by referring to the evidence and contended that if the issues urged by him are examined in its proper perspective keeping in view the evidence then the appellant's conviction becomes unsustainable and deserves to be set aside. 11) In reply, learned counsel for the respondent supported the impugned judgment and contended that no case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aband recovered from the appellant was commercial in nature as prescribed in the Schedule to the NDPS Act. 15) It is also not in dispute that the appellant failed to adduce any evidence in defence except to record his statement in Section 313 proceedings taking therein a plea of denial. It is also not in dispute that the affidavit relied upon by the appellant of one Maan Singh (Annexure-A/3) was not proved in evidence in as much as Maan Singh was neither examined nor cross-examined. 16) In these circumstances, in our view, the two Courts below rightly did not consider such affidavit as evidence, which was of no use and could not be construed as piece of evidence for deciding the rights of the parties. 17) One of the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt that this Court should appreciate the evidence and then record a finding of acquittal by drawing inferences suggested by him. 21) We do not think that we can do this exercise again in this appeal. It could be done in the Trial Court and then in appeal before the High Court and was in fact done by two Courts but not in this appeal. It is more so when both the Courts have concurrently recorded a finding against the appellant after appreciating the evidence. In the absence of any kind of extreme perversity and arbitrariness noticed by this Court in the findings of the High Court, we are afraid we can undertake such exercise at this stage. 22) Learned counsel for the appellant, however, placed reliance on the decisions of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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