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2018 DIGILAW 597 (JK)

State of J&K v. Deepak Sharma

2018-08-03

SANJAY KUMAR GUPTA, TASHI RABSTAN

body2018
JUDGMENT : Sanjay Kumar Gupta, J. 1. The State has preferred this Criminal Acquittal Appeal against judgment dated 02.02.2011 passed by learned Sessions Judge, Rajouri in case FIR No.112/2008 of Police Station Nowshera, whereby respondent herein stands acquitted of the charges for the offences under Sections 20/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’). 2. The case of the prosecution is based on occurrence dated 30.06.2008 when police while on patrolling and traffic checking duty intercepted a Maruti Van bearing No.5463-JK02K at Rajal TCP. The driver of the vehicle, after parking the said vehicle on the road side, tried to run away and that he was carrying a polythene packet with him. However, the police party over-powered him. The said person was identified as accused Deepak Sharma and from the polythene packet that was in possession of the accused a charas like substance was recovered. The accused was given option to be searched either before a Magistrate or before some police officer. As per the option exercised by the accused, his search was conducted in presence of SDPO, who was called on the spot. The recovered charas like substance was found to be weighing 1kg and 400 gms. It was sealed on spot and its sample was sent to FSL for chemical examination. After investigation of the case, upon receipt of report of FSL, offences u/s 20/22 NDPS Act were found proved against the accused and the charge sheet was accordingly laid against him and vide order dated 17.02.2009, charges for offences u/s 20/22 NDPS Act were framed against the accused. Accused denied the charges and claimed trial of the case. 3. Court below after conclusion of trial acquitted the accused on various grounds. It was held by Court below that no independent witness was examined though incident took place in Bazar; that there is contradiction with regard to time of occurrence in statements of witnesses; that there is no evidence with regard to re-sealing of seized materials; that there is difference of weight of sample taken on spot and which were received in FSL. 4. Heard learned counsel for appellant. Perused the impugned judgment and considered the law on the point. We have given thoughtful consideration to whole aspects of matter. 4. Heard learned counsel for appellant. Perused the impugned judgment and considered the law on the point. We have given thoughtful consideration to whole aspects of matter. The principles to be adopted by the Appellate Court in appeals against acquittal have been analyzed by Hon’ble the Supreme Court in the decisions reported in (2003) 8 SCC 180 , State of Rajasthan v. Raja Ram; (2009) 12 SCC 629 Vijay Kumar v. State; (2015) 11 SCC 124 , Upendra Pradhan v. State of Orissa. In State of Rajsthan v. Raja Ram (supra) Hon’ble the Supreme Court has observed thus: “Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not…….” 5. Before appreciating the evidence again, the brief resume of the statements made by the prosecution witnesses is as under: PW1 Constable Vajinder Kumar, in his statement deposed that on 30.06.2008, he along with SHO Police Station Nowshera was conducting traffic checking at TCP Rajal. During the said period a Maruti Van bearing registration No.5463/JK02K came over there from Sunderbani side. The driver was asked to stop the vehicle and he stopped the vehicle on the road side. The vehicle was being driven by accused Deepak. During the said period a Maruti Van bearing registration No.5463/JK02K came over there from Sunderbani side. The driver was asked to stop the vehicle and he stopped the vehicle on the road side. The vehicle was being driven by accused Deepak. The driver opened the door and he was carrying a polythene packet; that when he tried to ran away, the police caught hold of him; the police party comprised of constable Amarjeet Singh, Constable Kewal Krishan, SPO Naveen Bali etc.; that SHO asked the accused to open the polythene packet which was in possession of the accused. Upon opening the packet, it was found to contain some black coloured charas like substance; that thereafter, Dy.S.P was telephonically called on spot and the recovered charas was weighed. It was found to be weighing 1kg and 400 gms, the sample of 50 gms was taken out from the recovered charas. Thereafter, SHO sent him to Police Station along with docket and he, accordingly, went to police Station Nowshera, where FIR was registered on the basis of the said docket. In his cross-examination, he stated that the Van in question was of white color and accused was travelling in the said Van all alone. The polythene packet which was in possession of the accused was sky blue colored. The seizure memo was prepared by the SHO on spot. The accused was caught by Constable Amarjeet Singh. The charas was weighed on spot but he does not remember from whom the scale was procured. PW2-Kewal Krishan, in his statement deposed that on 30.06.2008, he was on duty at TCP Nowshera. SHO Nowshera along with 4/5 police officials came over there for traffic checking. At about 6 PM a Maruti Van bearing No.5463-JK02K came over there from Sunderbani side, the said vehicle was intercepted and subjected to checking. The accused who was driving the vehicle was carrying a polythene packet and he was caught as soon as he opened the door of the vehicle. Thereafter SHO gave option to the accused to get himself searched either before SDOP or before a Magistrate but the accused opted for SDPO. The SHO called SDPO on spot, who reached over there and the packet was opened. From the said packet charas was recovered. It was weighing 1kg and 400 gms. The charas was sealed on spot and the sample of the same was sent to FSL. The SHO called SDPO on spot, who reached over there and the packet was opened. From the said packet charas was recovered. It was weighing 1kg and 400 gms. The charas was sealed on spot and the sample of the same was sent to FSL. Thereafter SHO prepared a docket for registration of a case. In his cross examination, he stated that he was posted at TCP. They were generally checking the luggage and identity card of the passengers of commercial vehicles; however, private vehicles were also subjected to checking on the basis of information. He cannot tell whether there was any information with regard to Maruti Van No.5463-JK02K; that a number of vehicles were subjected to checking before Maruti Van in question but he does not remember their registration numbers. The accused was travelling all alone in the vehicle in question; the option was given to the accused verbally and not in writing; recovered charas was weighed from the shop of Davinder Kumar and the sample of 50 gms was taken out from the recovered charas; that recovered charas was sealed in a cloth; that at the time of seizure Investigating Officer was present on spot. The whole proceedings were over within two hours; the Investigating Officer had come on spot along with SHO; he does not remember as to what mark was given on the seal; the seal was already in possession of Investigation officer; no civil person was present on the spot nor any person was called over there. PW3-SPO Naveen Bali, in his examination in chief has stated that on 30.06.2008, he along with SHO Nowshera went to TCP Rajal for checking at about 6 PM, in the meantime, a Maruti Car bearing No.5463-JK02K came there from Sunderbani side; the driver of the said vehicle tried to run away and he was carrying a polythene packet, however, he was overpowered by the police officials and he was identified as accused; SDPO Nowshera also came on spot and he recovered 1kg and 400gms of charas from the accused and out of that, 50 gms of charas was sealed and sent to FSL. SHO prepared a docket and sent it to police Station Nowshera through Constable Vijender Kumar and the accused was taken to the police station. SHO prepared a docket and sent it to police Station Nowshera through Constable Vijender Kumar and the accused was taken to the police station. In his cross examination, he stated that they had laid a naka for traffic checking at about 6 PM and the checking party comprised eight person; they were carrying nothing except challan book at that time; before the occurrence one Tata Mobile vehicle was challan. After the occurrence they did not conduct any further checking; during traffic checking they were only checking the documents of the vehicle; there are two shops belonging to Army, situated near the place of occurrence; he does not know the Maruti Van in question was private or commercial; all vehicles, private and commercial were being subjected to checking by them. The seized charas was not weighed on spot but the same was weighed from a shop situated near the police station and the sealing was done in the police station. The owner of the shop is Sindhu Shah. 50 gms of charas were taken out as a sample. The charas was contained in a polythene packet that was while in colour; after weighing the charas the same was brought to police station and sealed over there. Sample of 50 gms was sealed separately but he is not aware with regard to sealing of remaining charas; he does not know as to where the remaining charas was kept by the SHO; sealing was done with the ring. However, he does not remember its mark. The recovered charas was red in colour; SDPO reached on spot within ten minutes and before his arrival, accused along with charas had been taken into custody but no further proceedings had been conducted by them. After SDPO reached the spot, they went to the police station. PW4-Mohd Iqbal, in his examination in chief stated that on 30.06.2008 at about 6 MP he along with SHO and ASI had set out a naka for checking at TCP Rajal where a Van bearing No.5463-JK02K coming from Sunderbani towards Rajouri, was intercepted, the driver of the vehicle stopped it on the roadside and he tried to run away along with a polythene packet; the police party caught hold of the accused and it was found that packet, which was in possession of the accused, contained charas like substance. The driver was identified as accused Deepak Sharma, accused was given option either to be searched before a Magistrate or before a Dy.S.P; accused opted for Dy.S.P. Thereafter, SHO called SDPO Nowshera on spot, who came over there and conducted the search of accused; Dy.S.P recovered a polythene packet from the accused and it contained charas. Out of that 50 gms of charas was taken out as sample and the same was seized. SHO prepared a docket and sent it to police station Nowshera through Constable Vijender Kumar. The FIR was registered on the basis of that docket, seizure memos were prepared on spot and the same were signed by ASI Sukhdev Singh and Amarjeet Singh. In his cross examination, he stated that they had started from the police station at 5.30 PM. Number of other vehicles were subjected to checking, however, he does not remember their registration numbers; accused had kept the packet near driver’s seat; he does not remember as to which police official caught hold of the accused; a docket, seizure memo and statements were prepared on spot. The recovered charas was weighed from a shop just adjacent to the TCP and then it was sealed on spot. The sample was also seized on spot; the SHO had prepared a document at the time of seeking option of the accused. PW5-Constable Amarjeet Singh, in his statement deposed that on 30.06.2008 he along with SDPO went to TCP Rajal, when they came back, SHO Nowshera had taken the accused into custody. Thereafter SDPO made enquiries from the accused and the accused was found in possession of a polythene packet that was containing charas, the charas was weighed and it was found to be 1kg and 400 gms. 50 gms were taken out as sample and the same was sent to FSL, Jammu. The charas was seized vide recovery memo-cum-seizure memo EXPW-4. The vehicle was seized vide memo EXPW-A/1 and the seal was kept on supurdnama of ASI Sukhdev vide memo EXPW=A/2. In his cross examination, he stated that he along with SDPO had reached TCP at about 10/11 AM; SHO along with 8 or 9 police officials was there; when he reached the spot, the accused was carrying a polythene packet in his hand; SDPO enquired about the name and parentage of the accused; seized Van was bearing registration No.5463-JK02K and it was while coloured. The charas was weighed from a shop but he does not know the name of shopkeeper; the weighing machine was not electronic; the sample was also weighed from the same shop; his statement was recorded on spot on the same day by Sukhdev Singh ASI; 1kg and 400 gms of charas was recovered from the accused; the recovered charas has been shown as 1kg only in the seizure memo and the same is wrong. PW-6 Sukhdev Singh ASI in his statement deposed that on 30.06.2008 he along with SHO was on patrolling duty at TCP Rajal and at about 5.30 or 6 PM they intercepted a Van bearing No.JK02K-5463 that was coming from Sunderbani towards Rajouri being driven by accused and he stopped it on road side. The accused took out a packet and tried to run away; he along with other members of the patrolling party chased the accused and SHO caught hold of accused after some distance; SHO saw that there was a black substance in the packet that was in the possession of the accused, he suspected it to be charas. Thereafter SHO gave option to the accused either to be searched in presence of Dy.S.P or in presence of any other officer but accused opted for Dy.S.P. The SHO called the Dy.S.P on spot and in his presence recovered charas weighed and it was found to be weighing 1kg 400 gms. The sample of 50 gms was taken out and recovered charas was seized. The statements of witnesses were recorded on spot, memo of option EXPW-NH bears his signatures. Seizure memo in respect of Van EXPW-A/1, seizure memo in respect of sample of charas EXPW-A, superdnama in respect of seal EXPWA/2 and superdnama in respect of weighing scales EXPW-NH/4 bear his signatures. In his cross examination, he stated that on the day of occurrence 4 or 5 persons were on patrolling duty and before subjecting the vehicle in question to checking they had already conducted the checking of 10 to 15 other vehicles; that packet from which the charas was recovered, was white coloured. The accused was arrested after he had covered 10 to 15 steps, no civilian was present on spot; there are no shops located near the place of occurrence. The accused was arrested after he had covered 10 to 15 steps, no civilian was present on spot; there are no shops located near the place of occurrence. The seizure memo was prepared after the arrival of Dy.S.P. the charas was weighed on spot with the weighing machine and the weighing machine was not electronic; after weighing the remaining charas a docket was prepared by SHO for registration of case; that 1kg and 400 gms of charas was seized but he cannot tell as to why only 1kg is written on the seizure memo. PW-7 Devinder Kumar, in his statement deposed that he knows the accused, he runs a STD shop near TCP Nowshera bridge; about one year back police of Nowshera had taken weighing machine from his shop at about 3/4 PM. In his cross examination, he stated that about 7/8 police officials came to him to take weighing machine. After one hour, the weighing machine was returned to him. Only the weighing machine was taken from him. He runs STD shop and also sells Beedies, Cigarettes and Tea. Rajal is situated at a distance of 4 kms from Nowshera. PW-9 Pritam Singh, in his statement deposed that on 30.06.2008 he was posted in Police Station Nowshera and he took photographs of a Van, accused and the recovered articles. He prepared four photographs marked as A,B,C and D and handed over the same to the Investigating Officer. In his cross examination, he stated that he has not seen the negatives of these photographs in Court. PW-10 Mukesh Kumar Dy.S.P, in his statement deposed that on 30.06.2008 in the evening, SHO Police Station Nowshera called him to TCP Nowshera on phone; he went to the spot and he saw a white coloured Van bearing No.5463/JK02K over there; accused Deepak was standing near the said vehicle; that accused was carrying a polythene packet in his hand, he introduced himself to the accused and informed him; that he is to be subjected to search; that he obtained the option of accused and the accused opted to be searched in his presence. Thereafter, SHO conducted the search in his presence and he recovered polythene packet form him and the same was containing charas like substance. It was weighed on spot and was found to be 1 kg and 400gms. Thereafter, SHO conducted the search in his presence and he recovered polythene packet form him and the same was containing charas like substance. It was weighed on spot and was found to be 1 kg and 400gms. Out of this, 50 gms were taken as sample and the same was sent to FSL. Memo of recovery EXPW-A has been attested by him. In his cross examination, he stated that he was accompanied by his PSO. He reached the spot within ten minutes, polythene bag in possession of the accused, carrying in his right hand, was transparent. No civilian was present on spot; that document was prepared in respect of option; that the weighing machine was brought on spot, it was not an electronic. He admitted the suggestion that 1kg and 400 gms of charas was recovered and the same was sealed on spot. Before sealing, 50 gms of sample were taken out. In the seizure memo 1 kg charas is mentioned but in his note he has mentioned the weight of recovered charas as 1 kg and 400 gms. In his statement u/s 161 Cr.P.C, the occurrence was shown to have taken place at 6 AM and the same is correct. The seizure memo was prepared first and then FIR was lodged. PW-11 Naiz ul Hassan, in his statement deposed that he was posted as SHO Police Station Nowshera in the year 2008 and he has conducted the initial investigation of the case. On 30.06.2008 at about 6 PM he was busy in traffic checking along with other police officials at TCP Rajal. In the meantime, a Van bearing No.5463/JK02K came over there and the same was stopped. The driver of the vehicle got down and he was carrying a polythene bag, which was containing charas and he tried to run away but he was caught on spot by other police officials. He was identified as accused Deepak Sharma. The accused was given option of being searched in presence of a Gazetted Officer of the police or in presence of the Executive Magistrate but accused opted for Gazetted Officer of the Police. Option memo EXPW-NH was prepared on spot and SDPO was called. The docket for registration of case was also prepared. The SDPO came on spot and in his presence accused was subjected to search. Option memo EXPW-NH was prepared on spot and SDPO was called. The docket for registration of case was also prepared. The SDPO came on spot and in his presence accused was subjected to search. The polythene bag containing charas was weighed on spot and it was found to contain 1 kg and 400 gms of chars. Out of this, 50 gms of charas was taken as sample and sent to FSL for chemical examination. The seizure memo EXPW-A was prepared and van was seized vide memo EXPW-A/1. A docket EXPW-NH bearing his signature was sent to Police Station, site map EXPW-NH/2 was also prepared and the FIR No.112/2008 was registered on the basis of that docket. After resealing of sample of charas, the same was sent to FSL, Jammu. The accused was arrested vide the memo of arrest EXPW-NH/3 and the seal was kept on superdnama of ASI Sukhdev Singh vide memo EXPW-A/2. The weighing machine was kept on superdnama of Devinder Kumar vide memo EXPW-NH/4. The photographs of seized articles were taken and statements of the witnesses were also recorded. After his transfer, investigation was conducted by Mohd. Aslam Choudhary. PW-12 Mohd Aslam Choudhary, who is the investigating officer, had stated that after he joined as SHO Police Station Nowshera, he completed the investigation and the offence was proved against the respondent. In his cross examination, however, he has stated that the power of search lies with the Deputy Superintendent of Police and senior officers. He further stated that until the challan was produced in the Court the seized articles remained with the police. PW-13 Pawan Abrol, who is the scientific officer of the FSL, stated that on receipt and opening of the packet it was found to contain twisted flat pieces of some greenish black colored material which was weighing 65 grms and after examination it was found to be charas. 6. This is the entire prosecution evidence. In NDPS Act certain cardinal principles of law and mandatory safe guards provided in NDPS Act have bearing effects in investigation. In NDPS Act, it is not recovery of contraband effected is enough , the manner of conducting investigation is also relevant. In all NDPS Act cases investigation gets completed approximately at spot except to reseal the sample and obtaining of FSL report. In NDPS Act, it is not recovery of contraband effected is enough , the manner of conducting investigation is also relevant. In all NDPS Act cases investigation gets completed approximately at spot except to reseal the sample and obtaining of FSL report. All offenses under NDPS are heinous in nature and provide severe punishment and so certain safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow. The legislature while enacting NDPS Act have incorporated several provisions in Chapter-V of the NDPS Act governing the arrest, search and seizure to afford safeguards so that innocent persons are not harassed and these mandatory provisions are complied with. 7. In present case, bare appreciating the statements made in Court and that made during investigation, it is evident that almost all the witnesses of recovery have stated in their statements recorded under Section 161 Cr.P.C that the recovery was effected at 6 am in the morning whereas all the witnesses during their statements before Court have stated that recovery was made in the evening at around 6 pm (evening). PW Mukesh Kumar, has stated that the timing given in the statements recorded under Section 161 Cr.P.C is correct but he forget his statement that when recovery was made it was a little dark. Even one of the witnesses, PW Davinder Kumar has stated that scale was taken from his shop at about 3-4 pm. PW Amarjeet Singh had stated that he along with the Dy.S.P had reached the spot of occurrence at 10 or 11 am and he saw the police officials along with the accused. So there is a lot of contradictions in the statements of the witnesses with regard to timing of recovery from the accused and these contradictions cast a doubt about the credibility of the statements of the witnesses. The trial Court has also found that there is variation between the weight of the sample sent by the Police to FSL and the weight depicted in the report of the FSL. We have considered this aspect of matter. As per prosecution 50 gm of sample of charas was taken from seized material and sent to FSL, but as per FSL report 65 gm of charas was received. We have considered this aspect of matter. As per prosecution 50 gm of sample of charas was taken from seized material and sent to FSL, but as per FSL report 65 gm of charas was received. Further as per I/O sample was sent to 3.7.2008 to FSL ; but as per PW Pawan Abrol (FSL), it was received on 11.7.2008. We have also gone through the file, there is no document of EMIC, from where it can be inferred that as to when sample was got re-sealed. Even EMIC was not produced. There is also no explanation as to where this sample remained during this intervening period. There is also no receipt of register of Malkhana from which it can be inferred as to whether after seizing of contraband; it was deposited in police Malkana in safe custody. While convicting a person of heinous offences, there should be legally admissible evidence. There should not be moral conviction. 8. In the present case, the learned State Counsel has not been able to point out any perversity in the trial Court Judgment. In fact, the trial court had examined the entire evidence produced by the prosecution and on going through the same, we cannot come to the conclusion that the trial court decision is un-reasonable or the findings returned are perverse. Therefore, we do not find any reason to interfere with the order of the trial court acquitting the respondents. 9. This appeal is, accordingly, dismissed. The bail bonds, if any, shall stand discharged.