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2017 DIGILAW 838 (JK)

State of J&K v. Harjeet Singh

2017-09-13

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Condl(CR) No.22/2016 : After hearing learned Sr. AAG for the appellant and for the reasons assigned in the application which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 194 days in filing the application for leave to appeal is made out. Accordingly, the delay of 194 days in filing the application for leave to appeal is condoned. Condl(CR) No.22/2016 is disposed of. SLAA No.24/2016: After hearing learned Sr. AAG for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA is allowed. Registry is directed to diarize the appeal as criminal acquittal appeal today itself. Cr. Acq. Appeal: Heard. This criminal acquittal appeal has been filed against the judgment dated 29.05.2015 by which the respondents have been acquitted in respect of the offence under Sections 8/15 NDPS Act. 2. The prosecution story in nutshell is that on 19.02.2014, respondent Harjeet Singh was driving the vehicle whereas another respondent Mohinder Singh was accompanying him from Srinagar towards Jammu. The truck was intercepted by police at Bye Pass, National Highway, Nagrota at about 3 pm and on checking from the Central Chamber of the Tanker, 20 plastic bags of poppy straw weighing 3 Quintiles 66 kg were recovered. Thereupon, FIR was lodged for commission of offence under Section 8/15 NDPS Act. The police after completion of the investigation filed the charge sheet. 3. The trial Court in order to prove its case examined as many as 11 witnesses. The Trial Court after appreciation of evidence on record has acquitted the respondent of the offence alleged against them. 4. Learned Sr. AAG for the appellant submitted that Section 50 of the NDPS Act is not applicable to the fact situation of the case and in the instant case, the provisions of Section 42(1) and (2) of the Act were complied with. It is further submitted that there was no specific intimation with regard to vehicle number and therefore the instant case was a case of a chance recovery. It is also urged that the contraband material was kept in safe custody in Malkhana and there is no violation of the provisions of the Act. However, the Trial Court has failed to appreciate aforesaid aspect of the matter. 5. We have considered the submissions made by learned Sr. AAG for the appellant and have perused the record. It is also urged that the contraband material was kept in safe custody in Malkhana and there is no violation of the provisions of the Act. However, the Trial Court has failed to appreciate aforesaid aspect of the matter. 5. We have considered the submissions made by learned Sr. AAG for the appellant and have perused the record. PW-Farooq Ahmed who is a witness to the seizure has been declared hostile by the prosecution and nothing incriminating can be elicited against the respondents from his cross examination. PWs-Ranjeet Singh, Jamat Ali and Karan Sakina are police personnel. PW-Ranjeet Singh has stated that on 19.02.2014 at 2 pm, he had received information from reliable sources that some contraband is being smuggled in tanker, therefore, he laid a naka at TCP, Nagrota. At about 3.30 pm, a tanker in question came from Srinagar side which was subjected to checking and from the Central chamber of the tanker, twenty plastic bags of poppy straw were recovered. However, the aforesaid witness has not stated anything about weighing of the recovered poppy straw and sample and sealing of the samples on the spot. PW-Jamat Ali another eye witness has stated that the samples were sealed and ring was used for sealing the packets and was kept on superdnama of one Farooq Ahmed. However, Farooq Ahmed has denied the superdnama with respect of ring. PW-Karan Sakina has stated that tanker was subjected to checking and twenty bags were recovered in the box on the top of the tanker. Thus, the aforesaid witnesses have contradicted each other with regard to time when the tanker was stopped for checking, the place where the alleged contraband was lying in the tanker. It is pertinent to mention here that PW-Karan Sakina has stated that the contraband was lying in box on the top of the tanker whereas other police witnesses namely Ranjeet Singh and Jamat Ali have stated that the contraband was lying in the Central chamber of the tanker. The witnesses to the seizure of poppy straw have been declared hostile and have not supported the prosecution case. The samples were recovered on 19.02.2014 and the samples were sent to FSL, Jammu on 21.02.2014. There is no evidence on record to show as to whether these parcels were kept after they were sealed by the investigating officer and resealed by the Magistrate. The samples were recovered on 19.02.2014 and the samples were sent to FSL, Jammu on 21.02.2014. There is no evidence on record to show as to whether these parcels were kept after they were sealed by the investigating officer and resealed by the Magistrate. Thus the possibility of samples being tampered with cannot be ruled out. Thus, the prosecution has failed to lead the evidence with regard to safe custody of samples. 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.