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2014 DIGILAW 427 (JK)

State Of J&K v. Subash Chander

2014-10-30

BANSI LAL BHAT, DHIRAJ SINGH THAKUR

body2014
Per Bansi Lal Bhat, J. 1. Aggrieved of the judgment of acquittal dated 07.08.2013 formulated by learned Sessions Judge Kathua in File No. 25/Spl. Challan titled State v. Subash Chander & anr., the State seeks leave to file appeal against the impugned judgment by virtue whereof respondents-Subash Chander and Tilak Raj (hereinafter referred to as "accused") stand acquitted of offences under Sections 8/21 of Narcotic Drugs and Psychotropic Substances (NDPS) Act. 2. Allegedly, on 18.08.2007 at about 10.15 am patrolling party of Police Station Basohli intercepted Bus bearing registration No. JK02AE/3677 at Basohli Morh. The accused alighted from the bus and tried to escape but the Police party thwarted their attempt. Allegedly, the accused were carrying polythene bags in their hands which were checked. 1600 capsules of Parwan Spas were recovered from the bag carried by accused Tilak Raj while 300 capsules of the same brand were recovered from the bag carried by accused Subash Chander. The contraband was seized. A docket was sent to Police Station Basohli for registration of case through Constable Parkash Singh. Case under FIR No. 51/2000 for offence under Sections 8/21 of NDPS Act came to be registered in this regard. During the course of investigation samples were taken for chemical analysis. The investigation culminated in laying of charge sheet before the Trial Court against the accused who pleaded not guilty to charges framed under Section 8/21 of NDPS Act and claimed to be tried. Prosecution appears to have examined eight witnesses at trial. Examined under Section 342 of CrPC, the accused denied the allegations appearing from the incriminating evidence adduced by prosecution. However, they did not enter upon their defense and no evidence has been adduced in defense. On consideration of the prosecution evidence led at the trial, the Trial Court was of the view that the mandatory provisions of Section 50 of NDPS Act have been contravened which was fatal for prosecution. Resultantly, prosecution case was dismissed. 3. Heard the rival sides and perused the record. 4. NDPS Act contains stringent provisions for punishing those found guilty of production, distribution, sale and marketing of narcotic drugs and psychotropic substances. The provisions of the Act are in tune with the international conventions on prevention and control of drug trafficking and harsh punishments have been prescribed to curb the menace of illicit drug trafficking. 4. NDPS Act contains stringent provisions for punishing those found guilty of production, distribution, sale and marketing of narcotic drugs and psychotropic substances. The provisions of the Act are in tune with the international conventions on prevention and control of drug trafficking and harsh punishments have been prescribed to curb the menace of illicit drug trafficking. However, safeguards have been incorporated in the Act to ensure a fair procedure to be observed during search, recovery and seizure of a contraband. In the instant case, the standing instructions issued by the Narcotic Control Bureau New Delhi in regard to mode and time limit for dispatch of samples to FSL have not been complied with. These standing instructions enjoin upon the investigating agency to dispatch the samples to FSL within 72 hours of seizure. Furthermore the samples are to be sent either by insured post or through a duly authorized special messenger. In the instant case, the representative samples are said to have been taken on 18.8.2007, resealed on 20.08.2007 and received in FSL on 22.08.2007. Prosecution has not explained as to where these samples were lying during the intervening period of four days. The link evidence in the instant case is totally lacking. Prosecution has not adduced any evidence in regard to deposit of the representative samples after seizure, sealing and resealing. The seal used for sealing the samples is said to have been placed on Supurdnama of one Kartar Chand-Constable who admittedly is not an independent witness. It has not been produced before the Trial Court with Kartar Chand-Constable claiming that he had lost the seal. This is the manner in which the link evidence has been dealt with. Even the communication in terms whereof the samples were sent to FSL and the witnesses connected therewith have not been examined at the trial. In absence of proof of this communication and withholding of material witnesses in this regard, link evidence cannot be said to have been proved at the trial. Thus viewed, fair procedure cannot be said to have been adopted during search, recovery and seizure of the contraband and prosecution cannot be said to have established the factum of samples examined at the FSL as being representative of the substance recovered from accused. 5. Thus viewed, fair procedure cannot be said to have been adopted during search, recovery and seizure of the contraband and prosecution cannot be said to have established the factum of samples examined at the FSL as being representative of the substance recovered from accused. 5. It is significant to notice that PSI-Sanjeet Sharma is alleged to have effected recovery of alleged contraband from accused in presence of Makhan Singh and Rajeev Kumar. These two witnesses have turned tables on the prosecution by enacting a U-turn. They have been declared hostile to prosecution. Thus, even the factum of recovery having been effected from accused is not corroborated. 6. Evidence in regard to recovery of contraband is not consistent. While Pw(s)-Kartar Chand-Constable Naresh Kumar-SPO and Ram Krishan --SPO have deposed that the accused were carrying the polythene bags containing contraband in their hands, Constable --Parkash Singh claimed in his cross examination that he had physically searched the accused which yielded the contraband. Therefore, the Trial Court was justified in coming to conclusion that the mandatory requirement engrafted in Section 50 of the Act has not been complied with. It is well settled that no presumption in regard to compliance of such mandatory requirement can be raised. The effect of such non-compliance would be sufficient to vitiate the entire exercise of search, seizure and recovery of contraband. In the given circumstances of the case non-compliance with the mandatory requirement of Section 50 cannot be held to be a technical breach causing no prejudice to the accused. Thus viewed, prosecution cannot be held to have established by legal evidence that the accused were found in unlawful possession of the contraband. 7. In the light of aforesaid discussion, no nexus can be said to have been established between the accused and the alleged contraband. We are of the considered opinion that the view taken by the trial Court upon marshalling of evidence brought on record by prosecution is perfectly justified. Finding no substantial and compelling reasons to take a contrary view, we uphold the Trial Court Judgment. 8. SLAA is, accordingly declined. Resultantly, the appeal stands dismissed.