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2013 DIGILAW 251 (JK)

State Of J&K v. Manoj Kumar

2013-04-25

BANSI LAL BHAT, MOHAMMAD YAQOOB MIR

body2013
Per Yaqoob, J. 1. Aggrieved by the judgment dated 25.08.2009 passed by the Court of 2nd Additional Sessions Judge, Jammu, the instant appeal is filed. 2. Factual matrix giving rise to the appeal is that on 11th March, 2003, Vehicle (Maruti Car) bearing registration No. 4333/JK02A was intercepted, during checking at Bridge (Muthi Pul) which was driven by Tarlok Chand. Accused Manoj Kumar and Inderji Bhat traveling therein, were found to have concealed in their shirts two envelops containing Narcotic Substance, i.e., `Charas'. SDPO, Akhnoor was informed who reached on spot. The accused were given the option for being searched in presence of a Gazetted Officer or a Magistrate, they opted to be searched in presence of SDPO (Dy.S.P), Akhnoor, S.Prithpal Singh. From the possession of accused Inderji Bhat 750 grams of `charas' whereas from the possession of accused Manoj Kumar 360 grams of charas were recovered and seized. 100 grams of Narcotic Substance each from the two packets, as recovered, were taken and sealed as samples, so were sent to FSL for analysis. The result of the analysis is that in the samples sent for analysis `charas' was detected. The case as registered against the accused culminated in filing the Charge Sheet (Challan) for commission of offence punishable under Section 20 NDPS Act. The trial culminated in acquittal of the accused. 3. Learned Government Advocate appearing for the appellant highlighted that the Narcotic Substance, `Charas' was recovered from the accused which has been proved, therefore, they should have been convicted. Learned Trial Court has not appreciated the evidence properly. In opposition, learned counsel for the respondents highlighted the defects in the prosecution case by stating that: (i) the mandatory provisions of Section 50 NDPS Act had been observed in breach; (ii) the two samples, according to the prosecution case, weighing 100 grams each were sent to the FSL whereas, as per the report of FSL, the total weight of the samples were 50 grams and 64 grams respectively; (iii) the samples were taken on the date of occurrence, i.e., 11th of March 2003 but the same have been received in the office of FSL on 25th of March, 2003. Where the samples were kept for the intervening period, is not known; (iv) the recovered substance (charas) is not shown to have been deposited in Malkhana nor the same is proved as to where that was kept; and (v) the driver of the vehicle Tarlok Chand, who has been subjected to search has neither been arrayed as accused nor witnesses. It is for the said defects/infirmities, the learned trial Court has acquitted the accused. 4. While considering the submissions, it is clear from the prosecution case that in the vehicle (Maruti Car) which was driven by Tarlok Chand, the accused were traveling. The two persons were in possession of two envelops containing Narcotic Substance (Charas). Notice of being searched in presence of a Gazetted Officer or a Magistrate is shown to have been served which is not free from doubt. The vehicle, as per PW-SHO, was intercepted at 4/5 PM, how could Dy. S.P, who was at a distance of 22/23 kilometers, i.e., at Akhnoor, reach to the place of occurrence before 5 PM. Therefore option given to the accused appears to have been given subsequently, i.e., after search so as to show the compliance of Section 50 of NDPS Act, as such of Section 50 of the Act has been observed in breach. 5. The most damaging circumstance as has appeared in the prosecution case is that the samples of the substance weighing 100 grams from each packet have been taken from two recovered packets and sealed on 11.3.2003, why it has reached to the FSL on 25th of March, 2003. Where the samples have remained for the intervening period, has not been explained. The position has taken ugly turn as the two samples received in the office of FSL, appear to have been either replaced or tampered. 6. In the letter of FSL dated 7.4.2003, EXT-P5/1 addressed to Deputy Superintendent of Police, it is mentioned that two sealed packets marked as Exhibit `A' and Exhibit `B' were received. In Exhibit `A', i.e., in one sealed packet, on opening, it was found to contain two pieces of twisted flat stick blackish coloured material wrapped in dry cob leaves. These were given as Exhibit numbers T-8/2003 and T-9/2003 by the expert. These two exhibits contained 30 grams and 20 grams each. Similarly, exhibit `B' one sealed packet was found. In Exhibit `A', i.e., in one sealed packet, on opening, it was found to contain two pieces of twisted flat stick blackish coloured material wrapped in dry cob leaves. These were given as Exhibit numbers T-8/2003 and T-9/2003 by the expert. These two exhibits contained 30 grams and 20 grams each. Similarly, exhibit `B' one sealed packet was found. On opening, two pieces of the same substance were found which were given exhibit numbers T-10/2003 and T-11/2003 containing 39 grams and 25 grams respectively, which would show that in one sample only 50 grams of substance were found when the sample taken weighed 100 grams. In the second sample instead 100 grams, 64 grams were found. 7. Now the question is as to whether the samples received by the FSL were the same or different. Quite obvious. When two samples weighed 100 grams each, how could weight of the two samples be 50 grams and 64 grams respectively. So it can be said that the samples as were taken and sealed were either tampered with or replaced, which position is further strengthened by the fact that after 14 days from the date of occurrence, the samples have reached to the office of FSL and it has not been explained as to where those samples were kept for the intervening period. The link evidence must be satisfactory, what to speak of satisfactory, the link evidence in the case appears to be a manipulation. 8. The second important circumstance is that when the contraband was seized and sealed, whether the same was deposited with the Malkhana, the same has not been clarified nor the Investigating Officer has been produced to explain, which in turn, gives rise to a serious suspicion and a yawning lapse enough to demolish the prosecution case. 9. It emerges from the prosecution case that one Tara Chand Fruit Vendor, was a witness to the recovery of charas but has not been produced. Secondly, driver Tarlok Chand was driving the vehicle in which the accused were traveling, he has neither been arrayed as accused nor as a witness which too is a serious lapse. Withholding of such important witnesses has the adverse impacts. The accused can safely claim prejudice. 10. Secondly, driver Tarlok Chand was driving the vehicle in which the accused were traveling, he has neither been arrayed as accused nor as a witness which too is a serious lapse. Withholding of such important witnesses has the adverse impacts. The accused can safely claim prejudice. 10. While sifting and scanning the evidence as has been led by the prosecution what surfaces is that the investigation of the case has been conducted in a most casual manner. 11. What happened to the two samples weighing 100 grams each is a question which has remained to be answered. Non-production of the Investigating Officer as a witness appears to be suspicious. It was the Investigating Office who had to explain as to what had happened to the samples as were taken and sealed on spot and what type of two samples weighing 50 grams and 64 grams were received by the FSL and why those have been sent after a gap of seven days from the date of occurrence. 12. It is a matter of concern, the tempering or replacing samples so to see the failure of the case has to be inferred to be with design. The Investigating Officer owes an explanation and is required to be dealt with on administrative side by the competent authority. 13. The learned Trial Court has appreciated the evidence and has rightly pointed out the infirmities and defects, the conclusions drawn are not interferable. Judgment impugned as such is up-held. The appeal is, accordingly dismissed. 14. For eradication and for curbing the menace of Narcotic Drugs and Psychotropic Substances, stringent provisions are in-place but unfortunately its operation is frustrated. The present case is the worst example of having been handled in a most casual manner, may be with design which is shocking. 15. Director General of Police is directed to institute an enquiry against the Investigating Officer, other officers and officials so as to ascertain: 1. why the two samples weighing 100 grams each as were taken and sealed have not reached to FSL for analysis; 2. How and which two samples weighing only 50 grams and 64 grams respectively have reached to the FSL; 3. whether the samples were tempered with or replaced; 4. why the samples were sent to the FSL after a gap of 14 days from the date of sealing ; and 5. How and which two samples weighing only 50 grams and 64 grams respectively have reached to the FSL; 3. whether the samples were tempered with or replaced; 4. why the samples were sent to the FSL after a gap of 14 days from the date of sealing ; and 5. why Tarlok Chand, who was the driver of the Maruti/Vehicle has not been arrayed as an accused or witness. 16. The action taken report be submitted within eight weeks. For the said purpose, case be listed on 26.06.2013. 17. A copy of the judgment be sent to the Director General of Police, J&K, Jammu for information and follow up. 18. Copy of the judgment along with Trial Court records be sent to the Trial Court.