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2017 DIGILAW 764 (JK)

State through P/S Thanamandi v. Yasir Khan

2017-08-30

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl(CR) No.67/2017: Heard. For the reasons stated in the application which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 255 days in filing the application seeking leave to appeal is made out. Accordingly, delay of 255 days in filing leave to appeal is condoned. In the result, Condl(CR) No.67/2017 is allowed. SLAA No.69/2017: Heard. After hearing learned counsel for the applicant, we deem it fit to allow the SLAA. Accordingly, SLAA is allowed. Registry is directed to diarize the appeal as criminal acquittal appeal. Criminal Acquittal Appeal: In this criminal acquittal appeal, the appellant has assailed the validity of the judgment dated 03.06.2016 by which the respondent has been acquitted in respect of the offence under Sections 8/21/22 NDPS Act. 2. The prosecution story in nutshell is that on 21.03.2015, HC Zahid Hussain along with Constables Tahir Iqbal, Mohd. Junaid, Jalal Din and Aab Iqbal had gone out in connection with naka checking duty at Khablan Tehsil Thanamandi. At that time, they found the respondent having a bag in his hand going towards Khablan village. When the respondent saw the police personnel, he tried to escape from the spot and on account of suspicion, the respondent was apprehended by the police and during the course of the search from his bag, 18 number of Corex bottles were seized from his possession. Thereupon, the first information report was lodged for offence under Section 8/21/22 of the NDPS Act and the police after completion of the investigation filed the charge sheet against the respondent. The trial Court vide impugned judgment has acquitted the respondents of the offences alleged him. 3. Learned Government Advocate for the appellant submitted that the trial Court ought to have appreciated that the recovery of the contraband material from the possession of the respondents was proved in the fact situation of the case and the Trial Court has failed to view the evidence on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. 4. We have considered the submissions made by learned government advocate for the appellant and have perused the record. 4. We have considered the submissions made by learned government advocate for the appellant and have perused the record. From the perusal of statement of ASI Gul Mohd, it is evident that samples were taken and sealed on the spot but there is no material on record to show that the FSL form was filled on the spot. It was incumbent upon the part of the investigating officer as well as the Station House Officer to seal the sample on spot and to keep the contraband items in safe custody. However, there is no material on record to suggest where the contraband items were kept after the seizure. The prosecution has also not produced any malkhana register in order to prove the fact that the contraband items were deposited in police malkhana. The seizure memo reveals that the contraband items was seized and sealed on the spot on 21.03.2015 and was sent to FSL for chemical examination on 01.04.2015 through ASI Paramjeet Singh who deposited the same with Forensic Science Laboratory on 04.04.2015. The aforesaid ASI was the competent witness to explain this aspect of the case as to where the contraband item had remained during this period but he has not been examined as prosecution witness and no explanation has been offered by the prosecution for his non examination. The seizure memo prepared by HC Zahid Hussain after the seizure of the contraband has not been proved by the prosecution which is fatal to the prosecution case. The seized contraband has not been sealed in the presence of any independent person. Even the police personnel on whose superdnama the seal after having sealed the contraband was kept have failed to produce the same in the Court at the time of examination. The alleged contraband did not got resealed by the Executive Magistrate in order to ensure that the contraband examination by the FSL was not the same which was sealed on the spot. Therefore, the possibility of tampering with the sample of the contraband sent to the FSL cannot be ruled out, particularly, when the seal after sealing the contraband did not remain on the superdnama of the police personnel. 5. The Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. Therefore, the possibility of tampering with the sample of the contraband sent to the FSL cannot be ruled out, particularly, when the seal after sealing the contraband did not remain on the superdnama of the police personnel. 5. The Trial Court has recorded the findings, which are based on meticulous appreciation of 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 ). 6. 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.