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2017 DIGILAW 1019 (JK)

State of J&K v. Raj Kumar

2017-11-20

BADAR DURREZ AHMED, SANJEEV KUMAR

body2017
JUDGMENT : Badar Durrez Ahmed, J. The present acquittal appeal has been preferred by the State against the judgment dated 15.02.2016, delivered by the Court of 2nd Additional Sessions Judge, Jammu, in respect of File No. 76/Special Challan, which, in turn, arose out of FIR No. 163/2014 registered at Police Station, Nowabad, Jammu, for offences under Sections 8, 15 and 27 of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as “the said Act”). 2. The prosecution version is that in the intervening night of 1st and 2nd November, 2014, a joint Naka of Police Station, Nowabad and Special Operation Group, Jammu, was carried out at Dogra Chowk, Jammu. At about 4.30 am, a Truck bearing registration No. JK02AF-6121, allegedly driven by respondent No.1- Raj Kumar, with the other two respondents/accused on board, approached Dogra Chowk. The said vehicle was subjected to checking, where upon, four boxes of poppy straw were recovered from the cabin of the truck and other 14 boxes were recovered from the body of the truck, which was loaded with boxes containing apples. The Investigating officer, on reaching the spot, weighed the seized and recovered poppy straw and, as per the prosecution, the total quantity of the poppy straw was 120 kilograms. Samples of 500 grams each were allegedly taken from the 18 boxes of poppy straw and were placed in separate parcels, marked A-1 to R-1. The said parcels were allegedly sealed and the seal was impressed with a ring. 3. The sealed parcels were allegedly taken to the Executive Magistrate on 05.11.2014, who is said to have re-sealed the same on that date. Thereafter, the samples are said to have been sent to the Forensic Science Laboratory, Jammu, on 07.11.2014. 4. The report of the Forensic Science Laboratory, which was marked as exhibit P-11, indicated the presence of Morphine. The samples were identified as poppy straw. 5. The respondents have been acquitted by the trial Court, primarily, on the ground that the prosecution has not been able to establish beyond reasonable doubt that the samples, which were allegedly taken on 02.11.2014 were the very same which were produced and tested by the Forensic Science Laboratory. 6. It has come in evidence that a seizure was made on 02.11.2014 in respect of the aforesaid Truck. 6. It has come in evidence that a seizure was made on 02.11.2014 in respect of the aforesaid Truck. It has also been stated by various police witnesses that the samples were placed in packets marked A-1 to R-1 on 02.11.2014 itself. It has also been alleged by the prosecution that the samples were deposited along with the seized material on 02.11.2014 itself in the Malkhana of the Police Station, Nowabad. 7. PW- Khalil Ahmad, who was posted as the Mohrar in Police Station, Nowabad, stated, in his examination-in-chief, that on 02.11.2014 the Investigating Officer, Mr. Sanjay Raina, SI, deposited 18 sealed parcels and 18 boxes of “bhuki” in the “Malkhana” of the Police Station. He further stated that he entered the said deposit in Register- 19. He further stated that on 03.11.2014 the Investigating officer took the sample packets for the purpose of re-sealing and deposited them again. On 07.11.2014, the Investigating officer, once again took the sample packets from him for sending the same to the Forensic Science Laboratory for chemical examination. He, however, stated that he did not know that the taking and depositing of the samples, after the first deposit, were entered in Register- 19. He, however, stated that the copy of the entry dated 02.11.2014 of Register- 19 on file is true as per the original record, but, the entries dated 03.11.2014, 05.11.2014 and 07.11.2014 on the copies attached with the file were not as per the entries in the Register. Consequently, the trial Court exhibited only the copy of the entry of 02.11.2014 as Exhibit P-8. In the course of cross examination, this witness further stated that the time of the deposit of samples on 02.11.2014 was not mentioned in the Register. 8. The next important witness is Mr Kamalpreet Singh, who was the Naib Tehsildar/Executive Magistrate, Ist Class, Jammu. He has stated in his examination-in-chief that on 05.11.2014 Sub Inspector Sanjay Kumar Raina from Police Station, Nowabad, produced 18 parcels before him for the purposes of re-sealing, which he did. He also prepared the authority letter addressed to the Director, FSL, Jammu, authorizing him to open the seals. The authority letter has been exhibited as Exhibit P-10. The authority letter bears the specimen impression of the seal with which he re-sealed the parcels. 9. He also prepared the authority letter addressed to the Director, FSL, Jammu, authorizing him to open the seals. The authority letter has been exhibited as Exhibit P-10. The authority letter bears the specimen impression of the seal with which he re-sealed the parcels. 9. In the course of cross examination, this witness has stated that the police did not produce the seal before him, with which they had sealed the packets. Nor did the police produced the seized articles before him for the purposes of making an inventory of the same. 10. Mr Pawan Abrol is the Scientific Officer from Forensic Science Laboratory, Jammu, who came to the witness box, inasmuch as, he has proved his report being Exhibit P-11. As per the examination-in-chief of Mr. Pawan Abrol, he had received 18 packets forwarded to him through letter dated 07.11.2014 in connection with the aforesaid case. The packets were enclosed in cloth parcels marked A-1 to R-1, which were further given exhibit nos. P-873/14 to P-890/14 by him. The seals of the exhibits were opened and the contents were examined. The exhibits were subjected to chemical tests, microscopic as well as chromatographic examination and the results were as under:— “(I) Morphine was detected in the exhibit nos. P-873/2014 to P-890/2014. II. The exhibit nos: P-873/2014 to P-890/2014 were identified as poppy straw (plant material of Papaversomniferum)”. 11. In the course of cross examination, this witness has stated that no CFSL form was sent to him along with the sample packets. The samples did not bear the signatures of any person except the Magistrate. The seal impression was forwarded by the Police to him on the forwarding letter, however, the impression of the seal was not kept in any exhibit. 12. The collection and movement of the samples of the seized contraband from 02.11.2014 to 07.11.2014 has been considered by the trial Court in the following manner:— “25. In the instant case the recovery was effected on 02.11.2014 in the morning at about 4.30 am and the samples were lifted on the same day on spot. The seized contraband was deposited in the “malkhana” of police station on the same day. It has come on record that the samples were taken out for the purpose of reseal and for deposit in FSL Jammu. The seized contraband was deposited in the “malkhana” of police station on the same day. It has come on record that the samples were taken out for the purpose of reseal and for deposit in FSL Jammu. Copy of register 19 attached with the file shows that the samples were taken out on 03.11.2014 for the purpose of reseal and also on 05.11.2014 and 07.11.2014 for deposit in FSL. PW Khalil Ahmed, in-charge “malkhana” in his deposition has admitted that the copy is true with regard to entry of 02.11.2014 only and the remaining entries in the copy are not as per the record. The taking out of samples for the purposes of reseal and their deposit again and taking out the samples again for deposit in FSL Jammu has not been proved beyond doubt. The prosecution, therefore, have failed to prove the safe custody of the samples after they were sealed. Moreover, the parcels of samples were deposited in FSL on 07.11.2014. There is no evidence on record to show as to where these parcels of samples were kept after they were resealed by the Magistrate. Therefore, possibility of samples being tampered cannot be ruled out. So, it further creates doubt in the prosecution story regarding seal and reseal of samples and breaks the link evidence. Moreover, the samples were deposited in FSL Jammu on 07.11.2014 i.e. after five days. It is the duty of the prosecution to prove beyond reasonable doubt that the sample was not tampered till the same reached Forensic Science Laboratory but retaining the sample at unknown place casts a shadow of doubt on the prosecution case,. There is no evidence regarding the custody of seal used to seal and reseal the sample parcels…………….” 13. On going through the above and after hearing counsel for the parties, we do not find any infirmity in the conclusions arrived at by the trial Court, on this aspect of the matter, which, according to us, is fatal to the prosecution case. It cannot be said with any degree of certainty that the samples allegedly taken on 02.11.2014 and deposited in the “malkhana” on 02.11.2014 itself, were the very ones which were examined by PW Pawan Abrol, Scientific Officer, FSL, Jammu. It cannot be said with any degree of certainty that the samples allegedly taken on 02.11.2014 and deposited in the “malkhana” on 02.11.2014 itself, were the very ones which were examined by PW Pawan Abrol, Scientific Officer, FSL, Jammu. This is so, particularly because as per the evidence of PW Khalil Ahmed, Mohrar, there are no entries of 03.11.2014, 05.11.2014 and 07.11.2014 when the Investigating officer is said to have taken the samples from the “malkhana”, re-deposited the samples after having them sealed by the Executive Magistrate and once again taken the samples for sending to the FSL, respectively. In other words, there is no clear-cut path of the movement of the samples from 02.11.2014 to 07.11.2014. There is also evidence that when the Executive Magistrate re-sealed the samples, he had nothing to compare the seals placed on them with the actual seal, as the impression of the seal was not with him. This would again go towards creating doubt as to whether the samples which were allegedly taken on 02.11.2014 were the ones which were produced before the Executive Magistrate and consequently before the FSL on 07.11.2014. There is, therefore, doubt with regard to the nature of the contraband. There is also no direct evidence of any witness indicating that the material seized was in fact poppy straw. 14. In view of the foregoing, we entirely agree with the trial Court that the prosecution has not been able to prove its case beyond reasonable doubt. Consequently, the appeal is liable to be dismissed. It is ordered accordingly.