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2017 DIGILAW 1015 (JK)

State of Jammu and Kashmir v. Mohd. Iqbal

2017-11-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. In this criminal acquittal appeal, the appellant has assailed the validity of the judgment dated 02.10.2010 by which the respondents have been acquitted in respect of the offences under Sections 8/18/21/22/29 of the Narcotic Drugs and Psychotropic Substance Act. 2. The prosecution story in nutshell is that on 15.12.2006, police party of police post Industrial Estate Kathua was on patrol duty and they laid a naka at Haltimorh and were checking the vehicles. At about 6.25 pm, three persons got down from a bus near Haltimorh and started walking towards Kathua. They tried to hide themselves on seeing the police party and they were arrested on suspicion. On enquiry they revealed their names and on search being made, it was found that one Mohd Iqbal was carrying black polythene bag with him. From him, 750 grams of Heroin was recovered. The said contraband was weighed and three packets of 50 grams each were sealed on the spot and remaining hereoin was sealed and the Incharge Police party sent a docket to the Police Station Kathua, where first information report was lodged for offences as aforesaid. The police thereafter conducted the investigation and filed the charge sheet. 3. The prosecution in order to prove its case has examined as many as 12 witnesses, namely, PW-1, Daljit Singh, PW-2, Sham Lal, PW-3, Inderjit Singh, PW-4, Kewal Krishan, PW-5, Mohinder Paul, PW-6, Iqbal, PW-7 Sat Paul, PW-8, Swaran Singh, PW-9, Parvinder Kumar, PW-10, Manohar Lal, PW-11, Rajinder Khajuria, PW-12, Pawan Abrol. The respondents denied the charges leveled against them. The trial Court vide impugned judgment has acquitted the respondents. 4. Learned AAG submitted that Trial Court has failed to view the evidence on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. 5. We have considered the submissions made by learned AAG for the appellant and have perused the record. PW-2, Sham lal and PW-4, Kewal Krishan who were attested witnesses to the factum of recovery of heroin from the possession of the accused have not supported the prosecution story and have been declared hostile. PW-Daljit Singh has been examined in order to prove the recovery and seizure. PW-2, Sham lal and PW-4, Kewal Krishan who were attested witnesses to the factum of recovery of heroin from the possession of the accused have not supported the prosecution story and have been declared hostile. PW-Daljit Singh has been examined in order to prove the recovery and seizure. From perusal of the evidence of the aforesaid witness, it appears that he has proved the fact that some white coloured powder was recovered from the possession of Mohd Iqbal and he cannot say whether it was the contraband material. The statement of the aforesaid witness is not worthy of reliance as it is not corroborated by other two witnesses namely PW-2, Sham lal and PW-4, Kewal Krishan. Thus the recovery of the heroin has not been proved by the prosecution beyond reasonable doubt. 6. From the statement of PW-3, Inderjit Singh, SI who had laid the naka, it is evident that three samples of 50 grams each of the contraband substance were sealed on the spot and were sent for FSL Jammu for chemical examination. However, in FSL Jammu only one sample was received and there was no explanation by the prosecution as to where the other two samples were kept. PW-12, Pawan Abrol has categorically stated that said packet did not weigh 50 grams but it weighed only 22 grams. This also goes to prove that the samples, which were sealed on spot for the purpose of chemical analysis, had not been sent to the FSL, Jammu for chemical analysis and in its place, some other sample weighing only 22 grams were sent. It is also pertinent to note that there has been considerable delay in sending the sample of heroin to FSL Jammu for chemical examination. The heroin was seized on 15.12.2006 and on the same day, the samples were taken which were resealed on 16.12.2006 but only one sample was sent to FSL Jammu on 23.12.2006. The aforesaid sample was sent through Constable Anju Jasrotia who has not been examined. Similarly, Satwant Singh, PW-8, who was a witness to the sealing of the samples has not been examined before the Court. The prosecution has not produced any Malkhana register to prove the fact that after its recovery and seizure, the contraband was kept in the Malkhana register for safe custody. 7. Similarly, Satwant Singh, PW-8, who was a witness to the sealing of the samples has not been examined before the Court. The prosecution has not produced any Malkhana register to prove the fact that after its recovery and seizure, the contraband was kept in the Malkhana register for safe custody. 7. The trial Court has also noticed that there has been violation of the provisions of Sections 55, 57 and 59 of the Act. The trial Court has recorded the findings, which are based on careful scrutiny of the evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. (See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124 . 8. From perusal of the judgment of the trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this Acquittal Appeal is made out. In the result, the appeal fails and is hereby dismissed.