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2013 DIGILAW 179 (JK)

State of J&K v. Tariq Mehmood & anr.

2013-04-03

J.P.SINGH, TASHI RABSTAN

body2013
J.P. Singh J.:— On the basis of reliable information received by the police that the respondents-Tariq Mehmood and Arshad Ahmed were travelling in Tempo Traveller bearing Registration No. 4435/JK02AG from Jammu to Raj our with Narcotic substance, the police intercepted the respondents and recovered, 1 Kg 200 Gms and 1 Kg of 'Charas' respectively from their possession. During investigation of the case registered against the respondents, a case under Sections 8/20 of the NDPS Act was found established against them. They were, however, acquitted by the learned Special Judge (Sessions Judge), Rajouri vide his Judgment and order dated March 20, 2012. The State Government examined the acquittal of the respondents and granted sanction for filing Appeal there against vide Government Order No. 2830-LD (ACQ) of 2012 dated 30th August, 2012. The Appeal was accordingly filed along with Motion seeking condonation of 152 days' delay in filing the Appeal. Appearing in support of the Motion, the learned State counsel submitted that respondents' acquittal being unjustified, the delay needs- to be condoned, in that, it was neither intentional nor deliberate. Opposing the Motion, the learned counsel appearing for the respondents submitted that the delay in filing the Appeal may not be condoned because no sufficient cause had been projected justifying condonation of delay in filing the Appeal. He further submitted that the acquittal of the respondents may not even otherwise warrant interference because the provisions of Sections 42 and 50 of the Act had been violated by the State, in that, neither the superior officer was informed as required under Section 42 of the Act nor were the accused given requisite option in terms of Section 50 of the Act for their search before the Magistrate. We have considered the submissions of learned counsel for the parties, perused the judgment of the learned Special Judge and gone through the case set up by the appellant in support of the Motion. Perusal of the Application moved by the State reveals that it has failed to spell out reasons that disabled it from filing Appeal after the grant of sanction by the State Government on 30lh August, 2012. The Motion moved by the State is significantly silent on the issue as to what steps were taken by the Competent Authority or its other functionaries in ensuring filing of Appeal within the prescribed period of limitation. The Motion moved by the State is significantly silent on the issue as to what steps were taken by the Competent Authority or its other functionaries in ensuring filing of Appeal within the prescribed period of limitation. The Motion moved is a stereotype application which the State Government has been usually filing in all those cases where the filing of the Appeal was delayed. We, therefore, find sufficient force in the respondents' learned counsel's submission that the State has not projected any sufficient cause for condoning delay in filing the Appeal, in that, there is absolutely no sustainable reason as to why despite the State Government having sanctioned filing of Appeal in August, 2012, the Appeal was not filed until 21 November, 2012. The Motion moved by the State may not, therefore, as such, warrant allowance. We, however, thought it proper to examine the judgment questioned in the Appeal lest public interest may not suffer because of inaction of the State functionaries in not filing Appeal within time. Perusal of the judgment revealed that referring to the law laid-down by the Hon'ble Supreme Court of India and this Court, the learned Special Judge had, on facts, found that the seizure effected by the police was illegal, in that, statutory requirements of sections 42 and 50 of the Act were observed only in breach. While appreciating the evidence of the prosecution witnesses, the trial Court found the evidence unworthy of credence for various reasons. This apart, the police was found to have deprived the respondents of their right to exercise option in terms of Section 50 of the Act. Dealing with the two issues, the learned Special Judge observed as follows:- 21. As has already been said above, the Investigating officer has pretended to have completed the requirement of section 50 of the NDPS Act, but in fact it has not been done, as is required under law. Simply asking the accused that he is to be searched before whom he would like to be searched, would not mean the sufficient compliance of section 50 of NDPS Act, in view of the law laid clown in the cases referred to above. Thus, in the first instance the Investigating Officer has breached the Section 50, and this breach would mean that the recovery would itself become doubtful, and whatever was clone thereafter would stand vitiated. Thus, in the first instance the Investigating Officer has breached the Section 50, and this breach would mean that the recovery would itself become doubtful, and whatever was clone thereafter would stand vitiated. Recovery of contraband from the possession of accused is the basis of this case, and once the recovery is not in accordance with law, the entire process thereafter would be illegal, and the law is trite that a person cannot be convicted on the basis of an illegal process of law." "22. There is yet another legal infirmity in the instant case. The contraband alleged to have been recovered from the possession of accused, has been sent to FSL for chemical examination after one week. Admittedly, recovery was made on 19.7.2010 and the contraband has been received in FSL on 26.07.2010. Nobody knows, why a delay of one week occurred in transmitting the samples to the FSL. The Investigating officer has in his deposition admitted this fact, but has stated that the contraband was kept in "Malkhana" of Police Station, but there is nothing on record to prove this aspect. Neither the "Malkhana" record has been produced nor has the "Malkhana" In-charge been produced, and this lapse is again fatal to the prosecution." "24. I have already pointed out that there are a number of safeguards envisaged in NDPS Act to add transparency to the investigation and to prevent raise prosecution. Section 42 of NDPS Act makes it obligatory on the part of the Investigating officer to record the information received by him from any person, or the belief nursed by him that the offence punishable under NDPS Act has been committed, and thereafter he can conduct the search and seizure etc. In the given case, information was not recorded by the officer who received it. In his cross-examination he says, that neither did he record this information nor did he convey this information to anyone. This is again breach of Section 42, and the breach of Section 42 is again a serious defect." In dealing with the quality of the evidence produced by the prosecution, the learned Special Judge has observed as follows:- "27. The nature of the evidence on record, which has been discussed above in detail, does indicate that there are so many seriously doubtful patches in the prosecution story, and all the material facts seem to be in disarray. The nature of the evidence on record, which has been discussed above in detail, does indicate that there are so many seriously doubtful patches in the prosecution story, and all the material facts seem to be in disarray. The statement of the police officers PW Abdul Rouf Lone and Kewal Kishore. who have stated about the recovery of "Charas" from the possession of accused, are not in my view sufficient to believe the prosecution story. I say so because of so many reasons. At the risk of repetition, it is pertinent to state that most of the witnesses have either turned hostile or have failed to support the prosecution story, as was required of them. Different versions have come on record about the recovery of the contraband. Some of the witnesses say that recovery was made from inside the vehicle and some say that it was from the possession of the accused, and third set of witnesses say that no recovery was made at all from the accused. Given all these facts, it may be really hazardous to rely upon the testimonies of PWs Abdul Rouf Lone and Kewal Kishore, more particularly because, serious lapses have been committed by the Investigating agency, and the mandatory provisions of NDPS Act have been observed in breach. That as such, leaves this court with no option but to observe that the entire prosecution version evaluated in the light of evidence on record, appears to be based on weak footing. The alleged recovery of the contraband from the possession of accused is thus vitiated, on account of being in contravention of section 50 of NDPS Act. None of the civilian witnesses, as said already, has supported the prosecution story. I do not mean to convey that the version of the police officers/officials cannot be relied upon, but in view of the infirmities in the evidence, contradictions on material aspects and the legal defects in the case, the proper course would be to disbelieve the prosecution story, and doing so would mean the failure of the case."" "28. Thus, in view of the observation held above, I am of the firm view that the prosecution case suffers from serious infirmities, both on facts and law. The guilt has not been brought home to accused, as was required under law. The case as such fails, and is accordingly dismissed. Accused are acquitted of all the charges. Thus, in view of the observation held above, I am of the firm view that the prosecution case suffers from serious infirmities, both on facts and law. The guilt has not been brought home to accused, as was required under law. The case as such fails, and is accordingly dismissed. Accused are acquitted of all the charges. File be consigned to records after clue completion. The accused are in custody. They shall be released forthwith, if not required in any other case.'" We are satisfied with the view taken by the learned Special Judge on appreciation of evidence and finding that the police had not complied with the provisions of Sections 42 and 50 of the Act. We are, therefore, of the view that even if the delay had to be condoned, the State Appeal may not succeed on merits. For all what has been said above, we, therefore, do not find any case to have been made out by the appellant for condonation of delay. Condi (CR) No. 83/2012 is, accordingly, dismissed along with Cr. Acq. Appeal No. 96/2012.