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2010 DIGILAW 552 (JK)

State Of J&K v. Davinder Kumar

2010-11-04

J.P.Singh, Sunil Hali

body2010
J.P. Singh, J. 1. A Charge-sheet was laid against Davinder Kumar and Rakesh Kumar under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for their possessing 220 gms Bhuki each while travelling in a Matador towards Jammu. 2. Rakesh Kumar died during the pendency of the trial and Davinder Kumar, the surviving accused, has been acquitted by the learned Special Judge (IInd Additional Sessions Judge), Jammu vide his judgment and order of April 27, 2010. 3. The State of Jammu and Kashmir has filed this Appeal questioning the acquittal of Davinder Kumar along with an Application seeking condonation of delay in filing the Appeal. 4. We have heard and considered the submissions made by Mr. Basotra, learned AAG appearing for the appellant. 5. Davinder Kumar-respondent has been acquitted by the learned Special Judge mainly on the ground that the prosecution had failed to prove the compliance of the provisions of Sections 42 and 50 of the NDPS Act during the search of the respondent, in that, the only witness, i.e. PW- Ab. Qayoom Dar, Dy.S.P, who could prove the compliance of Sections 42(2) and 50 of the Act, was not produced by the prosecution during the trial of the case. 6. It is admitted case of the prosecution that PW-Ab. Qayoom Dar, Dy.S.P had specific Source Information that Davinder Kumar and Rakesh Kumar were involved in the business of selling Bhuki and for that purpose were on their way to Jammu when, on his instructions, the Matador in which they were travelling, was stopped. It was Ab. Qayoom Dar, Dy.S.P, who is stated to have searched the duo and found them in possession of the contraband. 7. Ab. Qayoom Dar, Dy.S.P., who had received Source Information and searched the respondent, was thus the most important witness for the success of the prosecution case. The other evidence produced by the prosecution does not prove the Investigating Agency to have followed the mandatory requirements of Section 42(2) of the NDPS Act. 8. In view of the failure of the prosecution to produce requisite evidence to prove that the provisions of Sections 42(2) and 50 of the NDPS Act had been complied with during the course of the search of the respondent, we do not find any merit in learned State counsel's plea that the omission of the prosecution to produce Ab. 8. In view of the failure of the prosecution to produce requisite evidence to prove that the provisions of Sections 42(2) and 50 of the NDPS Act had been complied with during the course of the search of the respondent, we do not find any merit in learned State counsel's plea that the omission of the prosecution to produce Ab. Qayoom Dar, Dy.S.P., who had received information and pursuant thereto searched the person of the respondent, was not fatal to the prosecution case. 9. The view taken by the learned Special Judge, in recording the acquittal of the respondent, is thus well merited and may not call for interference in Appeal. 10. Thus, finding the Appeal prima facie without merit, we do not see any justification to condone the delay in filing the appeal additionally because barring the stereo type plea that the Law Department of the State Government had taken some time for granting necessary Sanction for filing acquittal appeal, the Motion moved by the State lacks pleading of requisite facts and circumstances, which had genuinely disabled the State from filing the Appeal within the prescribed period of limitation, despite their having taken requisite step to ensure that appeal was filed within the prescribed period. 11. Finding no merit in the appellant's Motion, Condl.(Cr.) 75/2010 is dismissed along with Cr. Acq. Appeal No.104/2010.