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2017 DIGILAW 416 (JK)

State through P/S Udhampur v. Baljeet Kumar

2017-07-24

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. Condl(CR) No.66/2017: Heard on the application for condonation of delay. For the reasons stated in the application which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 76 days is made out. Accordingly, the delay of 76 days is condoned. In the result, Condl(CR) No.66/2017 is disposed of. SLAA No.68/2017: 1. Heard on the question of admission. 2. This application for leave to appeal has been filed against the judgment dated 30.11.2016 passed by the Trial Court by which the respondents have been acquitted of the offences under Section 8/15 of the NDPS Act. 3. The prosecution story in a nutshell is that on 22.01.2015, a police naka party headed by PSI Sukveer Singh during a special naka checking at Jakhani chowk, NHW Udhampur, spotted a vehicle namely Indica Car coming from Srinagar towards Jammu in which besides the driver one more occupant was seen seated by the side of the driver. The aforesaid vehicle was intercepted by police naka party and during search, 48 polythene packets and one more white colored sack containing 20 polythene packets were allegedly recovered from its Dicky in which the alleged contraband was being carried. Thereupon the first information report was lodged and after completion of the investigation, the police filed charge sheet against the respondents. The trial Court vide impugned judgment has acquitted the respondents of the offences alleged against them. 4. Learned AAG submitted that the Trial Court grossly erred in acquitting the respondents merely on the ground that the original malkhana record was not produced. Learned AAG has invited the attention of this Court to page 11 of the judgment passed by the Trial Court and has pointed out that the police officer/official was present with the malkhana register before this Court and the Court should have satisfied itself with regard to entries made in the record. It is further submitted that since the seals were found intact, therefore, the question of tampering with the sample in the fact situation of the case does not arise. 5. We have considered the submissions made by learned AAG and have perused the record. From perusal of the record, it is evident that the prosecution had examined two independent witnesses to prove the search, namely, PW-Sat Paul and PW- Sham Lal who have been declared hostile. 5. We have considered the submissions made by learned AAG and have perused the record. From perusal of the record, it is evident that the prosecution had examined two independent witnesses to prove the search, namely, PW-Sat Paul and PW- Sham Lal who have been declared hostile. Even from their cross examination, nothing incriminating against the respondents can be culled out. It is pertinent to note that Sukveer who was heading the naka party though cited as Prosecution Witness No.1 has not been examined even though the case remained pending before the Trial Court for a period of two years. The factum of registration of the FIR and investigation has also not been proved by the prosecution. The prosecution has not even cited the malkhana incharge of Police Station, Udhampur as witness nor has made any effort to examine him during the trial. It is also pertinent to mention that malkhana register has not been proved in the Court. In other words, the safe custody of the contraband material was not proved by the prosecution. 6. It is also pertinent to mention that PW- Mahesh Sharma, the then SHO and investigating officer of the case in his cross examination has admitted that neither he has filled up any FSL form nor has prepared any authority letter at the time of seizure of alleged contraband at the place of the recovery. The trial Court has recorded its finding on meticulous appreciation of evidence on record. The aforesaid finding of fact by no stretch of imagination can be said to be either perverse or based on no evidence. Even otherwise, it is well settled in law that if on appreciation of evidence, two views are possible, the one which benefits the accused has to be taken. 7. In view of the preceding analysis, we do not find any merit in the application seeking leave to appeal. Accordingly, the same is dismissed.