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2017 DIGILAW 58 (JK)

STATE OF JAMMU AND KASHMIR v. HARVINDER SINGH

2017-02-07

B.S.WALIA, MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : B.S. WALIA, J. 1. Application has been filed seeking leave of Court to file appeal against judgment of acquittal dated 30-4-2014 passed by the learned Special Judge, Udhapur in case titled as State v. Harvinder Singh under Section 8/15, NDPS Act along with an application seeking condonation of 167 days delay in late filing of the appeal. 2. Notice was issued on 24-2-2015 and record was also called for. As per noting of the Registry, respondent appeared in person on 26-3-2017. Trial Court record was also received and the case was fixed before the Division Bench for hearing on 7-2-2017. However, none is present on behalf of the respondent-accused. 3. We have considered the application seeking condonation of delay. For the reasons recorded in the application and in order to ensure that no technicality stands in the way of doing substantial justice, particularly where the case has wide ramifications for society, we condone the delay and proceed to consider the application seeking leave to file appeal on merits. 4. Brief facts of the case leading to the filing of the appeal against acquittal along with application seeking leave to file appeal are that as per prosecution case, the accused, who was driving truck No. 9681-JK02F from Srinagar to Jammu was intercepted at Jakheni Naka and on checking, was found to be in possession of 16 polythene packs containing Bhukki placed in spare tyre i.e. stepney for which the respondent failed to provide any explanation. The contraband was found by Constable Mohinder Kumar in presence of other police personnel, namely Sraban Kumar, Head Constable, Jagdish Singh SPO and Jagdish Kumar SPO. Accordingly, FIR No. 124 of 2009 was registered under Section 8/15, NDPS Act. The contraband was seized on spot and on weighing was found to be 16 kgs. Sample of 20 gms. was taken from each packet. Bundles were prepared on spot which were thereafter sealed and seal was kept on Supurdnama of Havaldar Sarban Kumar and pursuant to investigation, accused was charged under Section 8/15, NDPS Act. 5. Learned trial Court recorded that besides the truck in question, there was no other vehicle parked nearby nor there was any independent person present who had been examined. Bundles were prepared on spot which were thereafter sealed and seal was kept on Supurdnama of Havaldar Sarban Kumar and pursuant to investigation, accused was charged under Section 8/15, NDPS Act. 5. Learned trial Court recorded that besides the truck in question, there was no other vehicle parked nearby nor there was any independent person present who had been examined. Recovery was effected on 30-5-2009 while resealing of the packet was done by the Executive Magistrate Ujjagar Singh on same being produced before him and he sent the same to FSL on 4-6-2009. Samples were received in FSL on 11-6-2009. As per FSL report, morphine was present in the bundles examined by the expert. The learned trial Court further recorded that although the accused had denied that vehicle was checked in his presence as he was taken to the Police Station immediately after his vehicle was stopped by the police, but there was no reason to doubt the version of the police personnel who had given identical statements regarding recovery of contraband from the accused. On the basis of the same, the learned trial Court held that the occurrence in question stood proved. 6. That as regards the question as to whether the accused had committed an offence under Section 8/15 Act, the learned Trial Court held that in view of the stringent provisions of law applicable, strict proof with unimpeachable evidence of cast iron standard was required and in case of breach of any mandatory provision of law/doubt in the veracity of the prosecution case, the accused was entitled to be acquitted. The learned trial Court considered the plea on behalf of the accused of the prosecution evidence not being trustworthy and of the accused being innocent and having been framed in the case as also that statement of the accused recorded under Section 342, Cr. P.C., 1973 that he was stopped by a police party at the time of checking and was taken to police station had to be viewed in the context of entire evidence and procedural lapses committed during investigation. P.C., 1973 that he was stopped by a police party at the time of checking and was taken to police station had to be viewed in the context of entire evidence and procedural lapses committed during investigation. Learned trial Court further recorded that the samples were seized on 30-5-2009 and sent to the FSL on 4-6-2009 and received therein on 11-6-2009, but there was no evidence as to where the samples had been kept during the intervening period of four days and it was the Investigating Officer, who could clear the doubt regarding the custody of the samples from the date the same were taken from the contraband seized to the date the same were sent to the FSL for test analysis. Learned trial Court recorded that the samples were required to be kept in Malkhana in safe custody and the entries of Malkhana register were required to be proved but there was no proof regarding as to whether samples had been kept after the same had been taken and no document had been placed on the file that the samples were entered in Malkhana register and kept in safe custody. Likewise, similarity in identity of samples taken and sent to FSL was also not established and due to non-production of Investigating Officer, many questions regarding the lapses in the investigation particularly with reference to taking of samples, keeping the same in safe custody, entering the same in Malkhana register, opening of the same before resealing the Tehsildar remained unanswered and the resultant procedural lapses committed during investigation were sufficient to give benefit of doubt to the accused as no presumption regarding the afore-mention aspects could be drawn from the evidence produced in the case. In the light of the aforementioned background, the learned trial Court acquitted the accused. 7. We have heard learned AAG who has vehemently argued that there was sufficient evidence on record to convict the respondent, but the trial Court had not appreciated the same, that the respondent had wilfully and intentionally committed the crime, therefore, deserved to be published for the same. Learned AAG argued that the judgment was based on surmises and conjectures, learned trial Court had adopted hyper technical approach and the direct and circumstantial evidence sufficiently proved the guilt of the accused. Learned AAG argued that the judgment was based on surmises and conjectures, learned trial Court had adopted hyper technical approach and the direct and circumstantial evidence sufficiently proved the guilt of the accused. In the light of aforementioned submissions, learned AAG prayed for setting aside of the judgment of the learned trial Court acquitting the respondent and for convicting him under Section 8/15, NDPS Act. 8. Learned AAG further argued that the delay in sending samples to FSL was only a few days. However, learned AAG had no explanation to counter the findings recorded by the learned trial Court regarding the doubt created w.e.t. the custody of the samples from the date the same were taken from the seized contraband to the date the same were sent to the FSL for test analysis as also the observation of the trial Court that no document had been placed on file of entry having been made in the Malkhana register and of the sample being kept in custody therein as also that non-examination by the prosecution of the Investigating Officer entitled benefit of doubt in favour of the accused. Another aspect of the matter which needs noticing is that there is a contradiction in the evidence of witnesses as recorded by the learned trial Court. Whereas, PP Constable Mohinder Kumar, is recorded as having stated of taking of about 320 gms. as samples, PW Sarban Kumar, on the other hand is recorded having stated 680 gms. of samples having been drawn from 15 kg. bhukki besides of there being 20-25 shops at a distance from the place of the occurrence, but of none of the shopkeepers having been called on the spot, besides of 16 packs had been found on spot but only one pack having been produced in Court. 9. We have considered the submissions made by learned AAG and perused the record. Hon'ble Supreme Court in case titled Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 2 SCC (Cri) 547 : ( AIR 2011 SC 1335 ) held that it was incumbent upon the prosecution to prove and explain that the samples collected from the seized contraband remained in safe custody till deposit in the FSL. Hon'ble Supreme Court in case titled Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 2 SCC (Cri) 547 : ( AIR 2011 SC 1335 ) held that it was incumbent upon the prosecution to prove and explain that the samples collected from the seized contraband remained in safe custody till deposit in the FSL. Similarly, a Division Bench of this Court in case titled as State v. Surinder Singh 2014 (4) JKJ 377 (HC) inter alia, took into account the delay in receipt of samples in FSL and of there being no evidence to show where the seized contraband and samples had been kept in the intervening period of one month as also of no evidence having been led to prove that after seizure of contraband and taking of representative samples, the same were kept in Malkhana in safe custody. In the aforementioned background, the Division Bench held that in absence of link evidence, it was difficult to hold that the samples examined in FSL represented the substance recovered from the accused and in the light of the points noted above as also other points, the Division Bench held that there was no sufficient, substantial and compelling reasons to take a view different from the one taken by the learned trial Court on appreciation of evidence. Relevant extract of aforementioned judgment is reproduced as under : 'Learned Sessions Judge found that the entire exercise of search and seizure of contraband was shrouded in mystery and the statutory safeguards had been observed in breach. He has referred to the testimony of witnesses in this regard to arrive at the conclusion that the entire exercise of recovery and seizure of contraband from possession of accused was doubtful. It appears that the contraband was allegedly seized on 10-10-2004 and the same was received in FSL on 8-11-2004. There is no evidence on record to show where the seized contraband and samples were kept during the intervening period of one month. Prosecution has led no evidence to prove that after seizure of contraband and taking of representative samples, the same were kept in Malkhana in safe custody. In absence of link evidence it is difficult to hold that the samples examined in FSL represented the substance recovered from the accused. Prosecution has led no evidence to prove that after seizure of contraband and taking of representative samples, the same were kept in Malkhana in safe custody. In absence of link evidence it is difficult to hold that the samples examined in FSL represented the substance recovered from the accused. Viewed in the context of afore-stated considerations, we find no substantial and compelling reasons to take a view different from one taken by learned trial Judge on appreciation of evidence. The findings recorded by learned Sessions Judge are justified and the impugned judgment does not suffer from any legal infirmity. The appeal is, accordingly, dismissed'. 10. Likewise in case titled as State of J&K v. Sukhvinder Singh, reported as 2015 (1) JKJ 198 (HC), a Division Bench of this Court inter alia took into account the point and the in-charge Malkhana in whose custody the recovered substance along with samples were said to have been deposited had not been cited as a witness, Malkhana register had not been produced before the trial Court and relevant entries in regard to deposit and withdrawal of samples had also not been proved. On the basis of the same, the Hon'ble Division Bench recorded that in absence of satisfactory and convincing evidence with regard to link evidence to prove that the samples examined in FSL declaring the substance as a narcotic did represent the substance recovered from accused, no substantial and compelling reasons existed so as to warrant differing with the conclusion drawn on appreciation of evidence by the learned Sessions Judge. Relevant extract of the aforementioned decision is reproduced as under : 'It emanates from record that samples were claimed to have been drawn from two packets of the recovered substance and sent for analysis to two different laboratories after being resealed before the Executive Magistrate. However, neither SDPO Banihal in whose presence recovery of contra band is said to have been effected nor the Executive Magistrate who conducted resealing have been cited as prosecution witnesses. Even the In-charge Malkhana in whose custody the recovered substance along with samples is said to have been deposited, has not been cited as a witness. Malkhana register has not been produced before the Trial Court and the relevant entries in regard to deposit and withdrawal of samples has not been proved at the trial. Even the In-charge Malkhana in whose custody the recovered substance along with samples is said to have been deposited, has not been cited as a witness. Malkhana register has not been produced before the Trial Court and the relevant entries in regard to deposit and withdrawal of samples has not been proved at the trial. The two independent witnesses namely Rashid Rasool and Fayaz Ahmed have not supported the recovery of contraband from possession of accused. The evidence brought on record is deficient, inadequate and not satisfying the standard of legal proof required to prove a criminal charge. This is a case of defective investation as observed by the learned Sessions Judge. In absence of satisfactory and convincing evidence of recovery of the contraband from conscious possession of accused and the fact that link evidence to prove that the samples examined at one of the two FSL(s) declaring the substance as a narcotic did represent the substance recovered from accused is missing, we find no substantial and compelling reasons to differ with the conclusions drawn on appreciation of evidence by learned Sessions Judge. There being no legal infirmity in the findings recorded by learned trial Court, this appeal is dismissed as being devoid of merit. 11. Thus, in the light of the position as noted above, of there being delay in sending the samples to FSL, there being no evidence on record to show as to where the samples were kept after same were taken, neither Malkhana register having been produced nor the Investigating Officer having been produced, we find no reason to interfere with the findings recorded by the learned trial Court. Resultantly, the application seeking leave of Court to file appeal is dismissed. Consequently, the acquittal appeal is also dismissed. No order as to costs.