Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 373 (JK)

Manzoor Ahmad v. State Of J&K

2013-06-28

MUZAFFAR HUSSAIN ATTAR, Virender Singh

body2013
Per Virender Singh, J. 1. Appellants Manzoor Ahmad son of Mohd. Akbar resident of Naldona Tehsil Shopian and Nazir Ahmad son of Abdul Ahad resident of Niana Batpura Tehsil Pulwama (hereinafter to be referred to as `accused') stand convicted vide impugned judgment/order dated 20/28.05.2011 of learned Principal Sessions Judge, Kathua for the offences punishable under sections 8(c)/20(c)-(61 of 1985) of Narcotic Drugs and Psychotropic Substances Act (For short `NDPS Act') for allegedly keeping in their conscious possession 96 kgs of `Charas'. The sentence slapped upon them is 20 years rigorous imprisonment each and a fine of Rs. 2 lac each, in default thereof, to suffer further imprisonment of 5 years each. Being aggrieved of the judgment of conviction and sentence, they have knocked at the door of this Court through Criminal Appeal No. 9 of 2011 which has been given priority over and above the other criminal appeals, the case being of Narcotic Drugs. 2. It needs to be mentioned here that one Mohd Abdul Qayoom, the co-accused of the present accused and owner of one of the Trucks in which contraband was being carried was also charged under section 29 of NDPS Act. He has since been acquitted by the learned trial Court. State has not preferred any appeal against his acquittal. One Bashir Ahmad Dar son of Mohd Sultan Dar resident of Bijbehara, who happens to be the owner of another Truck bearing registration No. JK13-0399 could not be apprehended by the police, as such, declared proclaimed offender and proceeded under section 512 CrPC. We have been informed by learned State counsel that he has not been apprehended by the police till date. 3. The present two accused are stated to be in custody since July 2006 i.e the date of alleged recovery. During the pendency of the instant appeal, they laid motion for suspension of their substantive sentence which relief was declined to them vide order dated 28.08.2011. 4. Factual matrix of the prosecution case, in short, is that on 10.07.2006 at about 12'o clock, SHO Ashok Singh of Police Station Rajbagh (District Kathua) received information from a reliable source that two Trucks bearing registration Nos. HR 55-4547 (Registration of Haryana) and JK13-0399 (Registration of J&K) were coming from Srinagar loaded with "Charas" which was to be supplied to different States. On receipt of the said information, he (SHO) informed Dy. HR 55-4547 (Registration of Haryana) and JK13-0399 (Registration of J&K) were coming from Srinagar loaded with "Charas" which was to be supplied to different States. On receipt of the said information, he (SHO) informed Dy. S. P/SDPO through telephone who also met him at the national highway and then a joint Naka was laid at a particular place. In the mean time, the aforesaid two Trucks reached near the place where the Naka was held and were signaled to stop. However, the drivers of the said Trucks did not stop their respective Trucks, consequently they were chased by SHO, Dy. SP and other police officials and ultimately intercepted at Chhan Rorian. Thereafter both the Trucks were subjected to search in presence of Dy. SP. Out of Truck bearing No.HR55-4547 which was being driven by accused Nazir Ahmad, from behind the driver's seat, 10 packets of "Charas", each packet weighing 2 kg were recovered and from another Truck bearing No. JK13-0399 which was being driven by accused Manzoor Ahmad, another 10 packets of `Charas', each packet weighing 2 kgs of `Charas' were recovered. The said contraband recovered from both the Trucks was taken into possession through different seizure memos. Both the Trucks were thereafter brought to the Police Station along with their drivers. A case bearing FIR No. 120/2006 dated 10-07-2006 under sections 8/18/20/21/22 of NDPS Act was got registered in Police Station Rajbagh. 5. During interrogation of both the accused, it revealed that they had kept some more quantity of `Charas' in the front cabins of both the trucks which were broke open by the police and from Truck No. JK13-0399, 15 packets each packet weighing 2 kgs and from another two packets, each packets weighing 3 kgs of `Charas' were recovered. In total, it was 36 kgs of `Charas' which was recovered from the cabin of the said Truck. Similarly, when Truck No. HR55-4547 was further searched after breaking open its cabin, 10 packets, each packet weighing 2 kgs of `Charas' were recovered. Thus, in all, 96 kgs of `Charas' were recovered from the aforesaid Trucks in the following manner: Truck No. JK 13-0399 : 20kgs+ 36kgs=56 kgs Truck No.HR 55-4547 : 20kgs +20kgs=40 kgs Total: 96 kgs 6. Samples were taken out of each packet and sent to FSL for chemical examination. Other procedural formalities were also carried out by the police during investigation. 7. Samples were taken out of each packet and sent to FSL for chemical examination. Other procedural formalities were also carried out by the police during investigation. 7. Accused Mohd Abdul Qayoom was also arrested during investigation for the charge under section 29 of NDPS Act, being the owner of one of the aforesaid Trucks for abetment and being a party to criminal conspiracy for transporting/carrying `Charas' in his Truck. As stated above, accused Bashir Ahmad Dar, the owner of another truck, however, could not be nabbed, as such, was proceeded under section 512 CrPC. 8. Since accused Mohd Abdul Qayoom stands acquitted for the charge under section 29 of NDPS Act and their being no appeal by the State against his acquittal and fact that the present two accused convicted for the charge under section 8( c) & 20 (c ) of NDPS Act, we will be focusing our entire attention to the evidence led by the prosecution vis-a-vis the charge of section 8 (c) of NDPS Act which lays down that no person shall produce, manufacture, possess, sell, purchase, transport, wharehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, whereas section 20 (C) of NDPS Act deals with the quantum of punishment only. 9. In order to prove the charge against both the accused, prosecution has brought PWs Naresh Kumar, Pankaj Sharma, Ravinder Singh, Rikhi Chand, Amarjit Singh, Som Raj, Jatinder Singh, Druv Singh, Ranbir Singh, Rajeshwar Singh, Pawan Abrol, Jugal Sharma, Master Popsy, Ghulam Mohd Bhat and Narinder Kumar into witness box. Out of these witnesses, evidence of some of the witnesses is of formal character. 10. Conceded position before us is that SHO Ashok Singh, who happens to be the I.O of this case has not stepped into the witness box. Another admitted position is that three independent witnesses namely PWs Som Raj, Ghulam Mohd Bhat and Narinder Kumar have also not supported the case of prosecution. In short, the case of the prosecution, thus, hinges upon the statement of police officials only. Therefore, what credence is to be attached to their evidence vis-a-vis the recovery and the investigation carried out in this case would also be an important aspect for consideration by us. 11. In short, the case of the prosecution, thus, hinges upon the statement of police officials only. Therefore, what credence is to be attached to their evidence vis-a-vis the recovery and the investigation carried out in this case would also be an important aspect for consideration by us. 11. What is noticeable from the trial Court record is that when the present two accused were examined under section 342 CrPC after incriminating evidence appearing in the prosecution case, was put to them, they pleaded their innocence simpliciter. However, they have not led any evidence in defence despite availing opportunities. 12. We have heard Mr. Gadda learned counsel for both the accused and Mr. Haq learned Government Advocate at length. Trial Court record has also been rescanned by us very minutely, the appeal being continuation of trial. 13. The foremost attack launched by Mr. Gadda learned counsel for the accused is that there is non-compliance of mandatory provisions of sections 50 and 42 (1 ) & (2) of NDPS Act, inasmuch as, before conducting the search, the accused were not apprised of their right available to them for being searched in the presence of a Gazetted Officer or a Magistrate, non-compliance thereof, according to Mr. Gadda, vitiates the entire proceedings. 14. While joining issue vis-a-vis non-compliance of section 42 (1) & (2) of NDPS Act, Mr. Gadda submits that the case of prosecution is that SHO Ashok Singh, In-charge of Police Station Rajbagh received a secret information that aforesaid two Trucks were coming from a particular direction carrying narcotic items, therefore, it was incumbent upon him to reduce the said information into writing for informing his senior police officer before conducting the search of the aforesaid Trucks, whereas in the present case, he ( SHO )has not only given go bye to the provisions of section 42(1), but even to section 42(2) of NDPS Act also which are mandatory in nature. He then submits that virtually there is a total non-compliance of section 42 of NDPS Act in this case and this fundamental flaw coupled with non-compliance of mandatory provisions of section 50 of NDPS Act demolishes the entire prosecution case, the patent illegality apparent on record which is incurable. 15. He then submits that virtually there is a total non-compliance of section 42 of NDPS Act in this case and this fundamental flaw coupled with non-compliance of mandatory provisions of section 50 of NDPS Act demolishes the entire prosecution case, the patent illegality apparent on record which is incurable. 15. Learned counsel further submits that even otherwise conscious possession of the contraband ('Charas') qua either of the accused is not proved to the hilt which is sine qua non for sustaining conviction under NDPS Act. He submits that both the accused who have now suffered conviction, in fact, are the drivers of the aforesaid two Trucks, as such, it cannot be said that it was in their knowledge that the `Charas' was being carried in their Truks which are owned by two different persons, one of them has not been nabbed by the police for any reason whatsoever and proceeded under section 512 CrPC and the other acquitted of the charge under section 29 of NDPS Act, being not proved. Therefore, according to Mr. Gadda, the present two accused cannot be even remotely connected with the conscious possession of contraband so as to maintain their conviction as already held by learned trial Court. 16. In support of his submissions, Mr. Gadda has relied upon following Judgments: i. State of Punjab v. Balbir Singh, reported as 1994 CRI.L.J 3702. ii. K. Venkatesham and anr v. State of A.P., reported as 2000 CRI.L.J 3156 titled iii. Koluttumottil Razak v. State of Kerala, reported as (2000) 4 Supreme Court Cases 465. iv. Dilip and anr v. State of M.P, reported as (2007) 1 Supreme Court Cases 450. 17. Mr. Gadda further submits that not only on account of the aforesaid flaws, the case of the prosecution is stumbling badly so as to connect both the present accused with the commission of alleged offence, the prosecution has also not complied with the provisions of section 51 of NDPS Act wherein it is specifically provided that provisions of Code of Criminal Procedure, 1973 (2 of 1974) in so far as they relate to arrest, search and seizure made under NDPS Act shall apply. According to learned counsel, provisions of Code of Criminal Procedure, 1973 (2 of 1974) are pari materia to the provisions of State Code vis-a-vis the search and seizure and in terms of section 100 (4) of Code of Criminal Procedure, before making a search, it is incumbent upon the police officer to call upon two or more independent witnesses and respectable inhabitants of the locality, whereas in the present case, the said exercise has not been carried out and for this reason also, no credence can be attached to the search conducted in this case. Dwelling upon his arguments, Mr. Gadda submits that in the case at hand, the civilian witnesses on which the prosecution wanted to rely have otherwise turned hostile and did not support the case of prosecution. Resilience of civilian witnesses from their previous statements, according to him, dents the prosecution story vis-a-vis the search conducted in this case. 18. In the same breath, Mr. Gadda submits that the case of the prosecution is suffering from another vital flaw to the effect that SHO Ashok Singh who happens to be the main I.O of the present case has not stepped into the witness box which has caused great prejudice to the accused as they have been deprived of cross-examining the star witnesses of the search on many vital aspects and this weakness crept in the prosecution case turns out to be a damaging factor. He further submits that the evidence of the prosecution witnesses, who are otherwise police officials only, is suffering from many material contradictions on many important aspects, inasmuch as that the witnesses to the recovery are not even clear about the place of search; manner in which the search is conducted at both the places or even the presence of other official witnesses including Dy.SP/SDPO, inasmuch as, as the discrepancy with regard to weighing of `Charas' on the spot by Dy.SP is also not free from doubt and when all these contradictions are scanned minutely or cautiously considering the fact that the prosecution case is hinging upon the evidence of police officials only, it can be safely said that the prosecution has not been able to prove the guilt of the accused to the hilt. 19. Mr. Gadda, thus, prays for acquittal of both the accused of the charges for which they stand convicted and sentenced by the learned trial Court. 20. 19. Mr. Gadda, thus, prays for acquittal of both the accused of the charges for which they stand convicted and sentenced by the learned trial Court. 20. Per contra, Mr. Haq, learned Government Advocate, submits that a very huge quantity of contraband has been effected in this case while conducting search of the aforesaid two trucks which were being driven by present accused who were apprehended at the spot only, therefore, none of the pleas taken by learned counsel for the accused, would be of any advantage to the accused. He further submits that provisions of section 50 of NDPS Act are otherwise not attracted in this case, the search being not a personal search and that under the present set of circumstances, even strict compliance of section 42 (1)(2) of NDPS Act was also not required. 21. Mr. Haq further submits that conscious possession of the contraband allegedly recovered qua both the accused is writ large in the present case and it cannot be said that the accused were not aware as to what was being carried in their trucks. So far as discrepancies are concerned, Mr. Haq submits that no doubt, certain contradictions/discrepancies have occurred in the statements of official witnesses but they are not of such a serious nature so as to disbelieve the case of the prosecution in its entirety for the purposes of granting benefit of doubt to the accused. He, thus, prays for dismissal of the instant appeal and upholding of the conviction and sentence as already slapped upon both the accused by learned trial Court. 22. After hearing learned counsel for both the sides and going through the trial Court record, we are of the view that the prosecution has been able to prove the charge as framed against both the accused to the hilt. We shall now be entering into a detailed discussion vis-a-vis all the pleas put forth by Mr. Gadda learned counsel for the accused in support of his case. 23. So far as provisions of section 50 are concerned, undoubtedly, they are mandatory in nature and where required, are to be strictly adhered to in their letter and spirit. But the fact situation in this case is altogether otherwise as the search conducted is of vehicle(s) and not of a person. Therefore, provisions of section 50 are not attracted in this case. But the fact situation in this case is altogether otherwise as the search conducted is of vehicle(s) and not of a person. Therefore, provisions of section 50 are not attracted in this case. At the cost of repetition, we may state here that the prosecution case as unfolded is that on information from reliable sources with regard to the aforesaid vehicles carrying contraband, a Naka was held at a particular point where two Trucks carrying `Charas' were searched and even on the second occasion, some more quantity of `Charas' kept in cabins of the trucks was recovered. This cannot be said to be a search of a person, therefore, compliance of section 50 of NDPS Act is not at all attracted in this case. Argument of Mr. Gadda on this aspect, thus, deserves to be rejected out rightly and we do so. 24. No-doubt, Mr. Gadda has made an attempt in dislodging the case of the prosecution on non-compliance of section 42(1)(2) of NDPS Act also and while dwelling upon his argument on this aspect, he has relied upon certain Judgments, referred to hereinabove, but, we, after going through the said Judgments, are of the view that Mr. Gadda will not be able to derive any advantage from the ratio of those Judgments, the present case being distinguishable on its own facts, inasmuch as, provisions of section 50 of NDPS Act, as already deliberated upon, are not attracted in this case, being not a case of search of a person. 25. So far as sub- section 1 of section 42 of NDPS Act is concerned, it lays down that the empowered officer, if has a prior information given by any person, he should take down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of such offence are concealed in a building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and he may do so without recording his reasons of belief. Proviso to sub section 1 of section 42 of NDPS Act further lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Sub section 2 of section 42 of NDPS Act further lays down that an empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub section 1 of section 42 of NDPS Act, shall forthwith send a copy of the same to his immediate official superior. 26. It is worthwhile to refer to section 43 of NDPS Act also which deals with the seizure of narcotic drug in a public place and the distinction between the provisions of section 42 and 43 of NDPS Act is that section 42 requires recording of reasons of belief for taking down the information received in writing with regard to commission of offence before conducting search and seizure, whereas section 43 does not contain any such provision, as such, in terms of this section, the empowered officer has power to seize the articles etc and arrest the person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to the empowered officer to be an unlawful. 27. On all these aspects, earlier there were conflicting interpretations and pronouncements, but this question is no more res-integra and stands fully answered by Constitution Bench of Hon'ble Supreme Court in case titled Karnail Singh v. State of Haryana, reported as 2009(5) RCR (Criminal) 515 SC : 2009(4) Recent Apex Judgment (RAJ) 638 : (2009) 8 SCC 539 wherein their Lordships while setting at rest all the controversies and conflicting opinions ultimately held in para 35: 35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42 from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior . (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001. 28. If one looks at the facts of the present case, SHO Ashok Singh immediately after receipt of reliable information to the effect that aforesaid two Trucks were coming from Srinagar side carrying `Charas', informed his senior police officer Dy. SP/SDPO Jugal Sharma who also met him at National Highway and then jointly held a Naka at Shop Nallah. The said SHO never wanted to waste any time in this case as even few minutes of delay would have resulted into escape of both the accused and in that eventuality, the police could not effect the recovery of such a huge quantity of contraband weighing 96 kgs of `Charas'. The fact of the matter is that immediately after effecting recovery from the drivers' seats of both the aforesaid Trucks at one place where Naka was held, both the Trucks were brought to the police station along with both the accused and thereafter SHO Ashok Singh without waste of any time got the case registered in Police Station Rajbagh (Kathua) at 13.00 hours on 10.07.2006 itself. It was an oral information by him and recorded in General Diary Reference (DDR) against Entry No. 9. It was an oral information by him and recorded in General Diary Reference (DDR) against Entry No. 9. After registration of FIR, copy of the same was immediately dispatched to all the concerned which also reached the hands of Illaqa Magistrate. The second part of the search was effected after recording of the First Information Report in Police Station concerned when both the accused were duly interrogated and it revealed from their interrogation that they had concealed some more quantity of `Charas' in the front cabins of their respective trucks. Therefore, considering the present case on its own facts and following the ratio rendered in Karnail Singh's case (supra), the plea advanced by Mr. Gadda with regard to non-compliance of section 42 (1) & (2) of NDPS Act would not be available to him at all, as such rejected. 29. Much has been said by Mr. Gadda with regard to conscious possession vis-a-vis the contraband qua both the accused but on this aspect also, we are not in agreement with him. Two different trucks were carrying huge quantity of `Charas'. The place where `Charas' is concealed is behind the drivers' seats of the trucks and the cabins. It is not a small quantity which could escape the notice of any driver. Even otherwise, the front cabin of the truck is always under direct control of the driver. The police had to break open both the cabins for effecting the search after both the accused disclosed the factum of concealment of `Charas' in the front cabins. The possession of contraband qua both the accused, thus, is fully established as all what was being carried in two trucks was within their special knowledge. 30. Section 35 of NDPS Act lays down presumption of culpable mental state. Explanation tendered to section 35 with regard to `culpable mental state' includes intention, motive knowledge of a fact and belief in or reason to believe, a fact. No doubt, for the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. No doubt, for the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. But in the case at hand, on its own facts, it can be very comfortably said beyond any shadow of doubt about the `culpable mental state' of both the accused for which the accused could not discharge the burden in rebuttal. Denial simpliciter when examined under section 342 CrPC cannot be said to be discharging of burden. Similar is the position in terms of section 54 of NDPS Act which lays down the presumption of possession of illicit articles under this Act. Thus, in our considered view, the conscious possession of the contraband (Charas) qua both the accused is proved to the hilt. 31. Learned counsel for the accused made a strenuous attempt to derive benefit from certain other weaknesses crept in the prosecution as the independent witnesses to the recovery have not supported its case and also on account of non-examination of I.O of the present case coupled with the fact that certain discrepancies/contradictions have crept in the statements of official witnesses produced by the prosecution to prove the charge against the accused. But, in our considered view, these cannot be said to be the weaknesses of such a grave nature so as to uproot the prosecution case in its entirety. 32. We are very much conscious that stringent punishment is provided under NDPS Act, therefore, all procedural safeguards provided in terms of NDPS Act should be complied with without any lapse, violation thereof would certainly have a bearing upon the credibility of the evidence available on record, but all this has to be appreciated on the facts of an individual case. Whatever is pointed out by learned counsel for the accused, in our view, would not cause any damage to the prosecution case. Simply that independent witnesses joined by the prosecution at the time of conducting the search have not supported its case would not be a ground to throw away the entire search conducted by the police. This, at the most, would put the Court on guard for scanning the statements of official witnesses. 33. Simply that independent witnesses joined by the prosecution at the time of conducting the search have not supported its case would not be a ground to throw away the entire search conducted by the police. This, at the most, would put the Court on guard for scanning the statements of official witnesses. 33. We are very well aware that certain discrepancies have also occurred between the narrations of different police officials when they talk about the manner in which the search is conducted or even holding of a Naka at a particular place but all these discrepancies are bound to occur with a lapse of time. Certain facts are bound to obliterate from the memory of most truthful witnesses. Even otherwise, there cannot be any uniform pattern in which the prosecution witnesses may be independent or official witnesses are expected to depose in the Court. Therefore, certain contradictions here or there would not destroy the basic substratum of the prosecution case. 34. In the case at hand, one important fact which we cannot lose sight of is that such a huge quantity of `Charas' cannot be planted upon any body. The present case, thus, can not be said to be a case of false implication atleast. Once that vital aspect is kept in mind while appreciating the entire evidence available on trial Court record, all the discrepancies or contradictions pointed out by Mr. Gadda which otherwise are not of that significant character, pale into insignificance. 35. Non-examination of I.O in a particular case under particular circumstances can be said to be a fatal to the prosecution, but in the case at hand, perhaps even that aspect cannot be said to be a fatal, more so, when PW Jugal Sharma Dy. SP/SDPO has stepped into the witness box and stated that he was informed by SHO Police Station Rajbagh about the movement of the aforesaid trucks carrying `Charas' and thereafter they laid a Naka jointly. He is one who also reached Police Station, Rajbagh where both the accused and the trucks were brought where the cabins of the trucks were also opened in his presence and more recovery of `Charas' effected. He further stated that during questioning the accused, they had stated that owners of the trucks are Bashir Ahmad Dar and Mohd Qayoom. He is one who also reached Police Station, Rajbagh where both the accused and the trucks were brought where the cabins of the trucks were also opened in his presence and more recovery of `Charas' effected. He further stated that during questioning the accused, they had stated that owners of the trucks are Bashir Ahmad Dar and Mohd Qayoom. This witness further stated that out of the two accused only Mohd Qayoom could be arrested, whereas accused Bashir Ahmad Dar could not be nabbed till date. This witness was cross examined at length even to the extent of maintaining of Roznamcha in his office, but we do not find any weakness in his evidence which would shatter the recovery effected at both the places, earlier at Naka and second at the Police Station. No doubt, some discrepancies have crept in his evidence with regard to the material brought by him to the place for the purpose of weighing the `Charas' for extracting the samples and completing other formalities, but this again would not be of any significance being most immaterial discrepancy. 36. We, therefore, hold that non-examination of I.O (PW SHO Ashok Singh), in this case, has not caused any prejudice to the accused so as to lend any advantage to them, in turn to see the case of the prosecution with an eye of suspicion. 37. As stated by us in the very start of our judgment that we are focusing ourselves to the evidence vis-a-vis the present two accused only who have suffered conviction and not qua accused Mohd Qayoom who has earned acquittal, there being no appeal filed by the State against the said acquittal. Therefore, we after completing the said exercise, have reached to an irresistible conclusion that the prosecution has been able to prove the conscious possession of 96 kgs of `Charas' qua both the accused from their respective trucks which were being driven by them when intercepted by the police. Therefore, their conviction as recorded by learned trial Court under section 8 (c) of NDPS Act is upheld. 38. Faced with this, Mr. Gadda has prayed for reduction of quantum of sentence taking us to section 32 (b) of NDPS Act wherein certain factors have to be taken into consideration for imposing punishment higher than the minimum term of imprisonment or amount of fine. 38. Faced with this, Mr. Gadda has prayed for reduction of quantum of sentence taking us to section 32 (b) of NDPS Act wherein certain factors have to be taken into consideration for imposing punishment higher than the minimum term of imprisonment or amount of fine. The minimum sentence as provided under section 20 (c ) of NDPS Act is 10 years with a fine of Rs. One lac which may extend to 20 years with a fine of Rs. 2 lacs. According to learned counsel, the present case does not fall in any of the six factors enumerated for imposing punishment- higher than the minimum term of imprisonment. Learned counsel further submits that both the accused are the drivers of the aforesaid Trucks, therefore, cannot be said to be the purchaser or the real owner of the contraband. He then submits that both the accused are of the age of 19 and 36 years and are the only bread winners of their family. Therefore, their case calls for some lenient/sympathetic approach. 39. We are not in agreement with the submissions advanced by Mr. Gadda even on this aspect. While considering the case of accused on the point of quantum of sentence, no doubt, age of the accused and certain other factors do carry some weight but all these factors have to be weighed on the facts of an individual case. Learned trial Court considered all these aspects into consideration and it would be apt to refer to paras 8, 9 and 10 of order dated 28-05-2011 of learned trial Court. They read: 8. Several factors are regarded as contributing to the link between narcotic abuse, crime and violence, such as the type of narcotic involved, the amounts of it that are abused, the person abusing the narcotic and the environment in which the narcotic is taken. The emergence of the abuse of crack charas has been associated with a rise in crime and violence in many cities throughout the world. The abuse of some other narcotics has been similarly associated with crime and violence. In some instances, violence is committed by the narcotic abuser in order to generate income to purchase narcotics and is also often associated with the illicit traffic in narcotics. The abuse of some other narcotics has been similarly associated with crime and violence. In some instances, violence is committed by the narcotic abuser in order to generate income to purchase narcotics and is also often associated with the illicit traffic in narcotics. The review by the Board shows that the relatively small group of serious and violent offenders who are narcotic abusers accounts for a disproportionate amount of all serious crime committed by delinquents. The review also shows that a large number of young people who are involved in narcotics and violent behaviour often grow out of that violence and narcotic abuse once they reached adulthood. Economic opportunities provided by narcotic trafficking can lead to rivalry among narcotic gangs as they compete for a larger share in the illicit market. Such rivalries frequently lead to violence, to the detriment of the local community. Violence, crime and narcotics have a disproportionate impact on certain individuals and segments of society and curtail the freedom of movement of women, the elderly and children in dysfunctional communities where crime is rampant and fear of crime is widespread. Women and children who abuse narcotics are at increased risk of becoming victims of violence. "Harm reduction" as a tertiary prevention strategy for demand reduction purposes. That view still holds true. Any measure adopted to reduce harm associated with illicit narcotics use should, however, always be implemented in the context of a comprehensive strategy aimed at reducing the demand for illicit narcotics. Such measures cannot therefore replace demand reduction programmes or be carried out at their expense. Most importantly, "harm reduction" can never be an end in itself, nor should it be the overall guiding principle behind national narcotics demand reduction policy. While, in principle, measures to reduce harm in narcotics-dependent persons should not be seen as being in contradiction with the international narcotics control treaties, some so-called "harm reduction" approaches are not what they seem to be in that they cause more harm than they purport to reduce. "Harm reduction" approaches should not be seen to condone or even promote narcotics abuse but should be seen to contribute to a reduction in the abuse of narcotics. The year 2003 marked the fifth anniversary of the twentieth special session of the General Assembly, devoted to countering the world narcotics problem together. "Harm reduction" approaches should not be seen to condone or even promote narcotics abuse but should be seen to contribute to a reduction in the abuse of narcotics. The year 2003 marked the fifth anniversary of the twentieth special session of the General Assembly, devoted to countering the world narcotics problem together. In April 2003, ministers and other government representatives participating in the ministerial segment of the forty-sixth session of the Commission on Narcotics reviewed the progress achieved since the convening of the twentieth special session of the Assembly in 1998. In their joint ministerial statement, they reaffirmed the commitment of the international community to the fight against narcotics abuse and illicit narcotics production and trafficking. They reiterated the importance of implementing fully the international narcotics control treaties and safeguarding the integrity of the international narcotics control regime. The Board calls on Governments to implement the action plans adopted by the General Assembly at its twentieth special session. Governments should develop objective and reliable mechanisms for making effective assessments of the impact of narcotics policies and should implement sustainable narcotics supply and demand reduction programmes with both shorter- and longer-term objectives. 9. As per the latest survey of the World, about 190 million people all other the World consume one narcotics or the other which causes immense human distress and give rise to illegal production of narcotic substances. Millions of narcotics addicts all over the World are living miserable life and struggling between the life and death. India too is caught in this vicious circle of the narcotics peddlers and narcotic smugglers. The data aforesaid is official but unofficially, one million narcotic addicts registered in India and unofficially there are as many as five million. The narcotic abuses has led a detrimental impact upon the society which has increased the crime rate and is being consumed between the age group of 18-35 years causing the degradation of the human potential incalculable causing physical moral and intellectual loss to the youths of the Country. The spreading of this fungus of the narcotic is required to be prevented with heavy hands, to remove the scourge of social evil spreading and engulfing the country like a dragon. 10. The conduct of the accused/convicts in carrying such a huge and commercial quantity weighing 96 kilograms of narcotics which is spreading venom and the middle aged people are mostly affected. 10. The conduct of the accused/convicts in carrying such a huge and commercial quantity weighing 96 kilograms of narcotics which is spreading venom and the middle aged people are mostly affected. The most worst affected is younger lot where they do not understand the repercussion being ensued when they consume the narcotic substances presently amply available in the market and because of the presence of product the accused present in the Court. The accused/convicts are the subject of Jammu and Kashmir State where the other smugglers of the narcotics of the other States think that they can utilize the innocent brains of the people of Jammu & Kashmir State in such kind of narcotic trafficking. The message must go to the such kind of persons those who become victims to the smugglers of the international notoriety that now it will not be easy for them to use the soft hub available to them in the State of Jammu & Kashmir. Let a deterrence message should also go to the career or the persons those who are intending to join such kind of nefarious activities that the end of these kinds of activities is landing in the jail quite a long time. Though the death sentence has been provided under the NDPS Act but only to the persons those who are the repeaters of the commercial quantity of the narcotics but since the law does not provide implanting of the same unless is proved there to but the request of the accused for taking a lenient view is hereby rejected. The accused/convicts have indulged themselves into the possession of transporting of the narcotic substance in a commercial quantity. The person who is dealing with the business of commercial quantity in narcotics has to be dealt more severely. 40. We, thus, find no ground much less convincing ground for reducing the sentence slapped upon both the accused to the minimum sentence of 10 years imprisonment and a fine of Rs. One lac or any sentence in between, keeping in view the huge quantity of 96 kgs `Charas' recovered from the conscious possession of both the accused and other factors as well. Prayer made by Mr. Gadda on this ground is declined and we confirm the sentence part also as already awarded by learned trial Court. 41. One lac or any sentence in between, keeping in view the huge quantity of 96 kgs `Charas' recovered from the conscious possession of both the accused and other factors as well. Prayer made by Mr. Gadda on this ground is declined and we confirm the sentence part also as already awarded by learned trial Court. 41. We would be failing in our duty, if we do not deal with section 52 (A) of NDPS Act which relates to disposal of seized narcotic drugs and psychotropic substance. This issue also came up before Hon'ble Supreme Court in case titled Union of India v. Mohan Lal and another, reported as (2012) 3 Supreme Court Cases (Cri) 716, wherein their Lordships while dealing with specific provisions contained in section 52(A ) of NDPS Act in detail with regard to seizure, search, disposal and destruction of seized narcotic materials, took note of the fact that there are chances of pilferage for recirculation of the narcotic drugs in the market, therefore, destruction of the seized narcotics not only becomes a statutory duty but a constitutional mandate also under Article 47 of Constitution of India, In this regard, certain directions have been issued by the Hon'ble Supreme Court. We direct Director General of Police, J&K State to deal with this aspect strictly in terms of the directions contained in Mohan Lal's case (supra)and forward a report to the Registrar General of this Court. 42. Before parting with the case, we express our anguish in the manner prosecution agency has shown its slackness in not nabbing Bashir Ahmad owner of one of the aforesaid truck who has been declared as absconder at the time of filing of chalan. As stated by Mr. Haq, learned Government Advocate that he has not been nabbed till date, the said circumstance casts serious reflection on the functioning of some of the police officials of Police Department. Such circumstance may warrant drawing of inference of complicity of police officials with the drug peddlers/traffickers. We, therefore, expect that Director General of Police J&K State will initiate action against those of the police officials who have failed to discharge their official duties in accordance with rules. We say so because a very huge quantity of 96 kgs of `Charas' has been seized in this case which was being transported/carried in the aforesaid two Trucks. 43. We, therefore, expect that Director General of Police J&K State will initiate action against those of the police officials who have failed to discharge their official duties in accordance with rules. We say so because a very huge quantity of 96 kgs of `Charas' has been seized in this case which was being transported/carried in the aforesaid two Trucks. 43. We will appreciate if the cases, registered under NDPS Act, are investigated by only those Police Officers/Officials, who are imparted required training by Narcotic Control Bureau (NCB) constituted in the State of Jammu and Kashmir. 44. Copy of order/Judgment be provided to Director General of Police, J&K State as well as Chief Secretary, State of J&K for information and compliance by Registrar Judicial of this Wing without any delay. 45. Net result is that the instant appeal stands dismissed in the aforesaid terms.