Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 333 (JK)

State of J&K v. Nirmal Singh

2019-07-11

ALI MOHAMMAD MAGREY

body2019
JUDGMENT : 1. This acquittal appeal has been filed against judgment/order dated 26th July, 2007 passed by 1st Additional Sessions Judge, Jammu in case titled State Vs. Swarn Singh and ors., by virtue of which accused (respondents herein) have been acquitted of the charges framed against them. 2. The appeal is preferred on the grounds that the impugned judgment and order dated 26.07.2007 is passed against the fact and law and the court below has misappreciated the evidence and misconstrued the law attracted to the facts of the present case. 3. In brief the prosecution’s case is that on 29.03.2003, SHO Police Station, Gandhi Nagar, Jammu received an information from reliable source that four accused (respondents herein) are in the business of smuggling Brown Sugar and Heroin within and outside the State and presently they are having in their possession Heroin and Brown Sugar and are proceeding from Nanak Nagar towards Digiana Sanjay Nagar on foot. On this information, the police registered a case FIR No. 97/2003 under Sections 8/20,22/29 NDPS Act. Investigation was entrusted to Shyam Sharma S.I who along with his constables proceeded towards the spot and reached at Mohalla Preet Nagar along with SDPO South Jammu. A Naka was laid down in presence of the SDPO South Jammu. PSI Incharge Police Post Digiana as per the instructions also brought Executive Magistrate 1st Class on spot. During the Naka four persons came from Nanak Nagar side on foot who were surrounded and during interrogation these four persons disclosed their names as Swaran Lal, Rakesh Kumar, Gurmeet Singh and Nirmal Singh. The Magistrate instructed Mushtaq Ahmed S.I for conducting search and from the search of Swaran Lal two plastic pouches were found to be in his possession. One pouch was containing heroin and other containing brown sugar, one pouch was found to be containing 900 gms of heroin, out of which 50 gms was taken as sample and other packed was found to be containing 250 gms of brown Sugar out of which 50 gms was taken as a sample and the same were packed in two different packets. Similarly, on the search of Nirmal Singh through Mushtaq Ahmed S.I one plastic pouch containing brown sugar was recovered and on weighing the same it was found to be of 550 gms of of which 50 gms was taken as sample. Similarly, on the search of Nirmal Singh through Mushtaq Ahmed S.I one plastic pouch containing brown sugar was recovered and on weighing the same it was found to be of 550 gms of of which 50 gms was taken as sample. Further, on the search of Rakesh Kumar one plastic pouch containing brown sugar weighing 350 gms was found and 50 gms was taken as sample and the same were packed in two different packets. On the search of Gurmeet Singh, one plastic pouch containing brown sugar weighing 300 gms was found and 50 gms of sample was taken and the same were also packed in two different packets. The seized items were sealed in presence of Executive magistrate. Statement of witnesses were recorded under Section 161 Cr.P.C. 4. On the basis of evidence collected, on 07.10.2003 charges were framed against accused (respondents herein) under Sections 8/20, 22, 29 NDPS Act, to which they pleaded to not guilty. 5. From the side of prosecution, in support of their case, prosecution has cited as many as ten witnesses and all of them have been produced and examined by the prosecution. 6. Thereafter the evidence of the prosecution was closed and the statement of accused were recorded under Section 342 Cr.P.C. in which all the accused (respondents herein) denied recovery of the alleged contraband substance from them and stated that they were falsely implicated. No evidence was led by the accused (respondents herein) in defence, despite opportunity. However, learned counsel produced certain photostat copies of the documents during the course of arguments in the shape of defence. 7. The learned Court below after having considered the entire evidence led by the prosecution found that prosecution has failed to connect the accused with the commission of offence beyond shadow of doubt. 8. While taking into consideration the statement of PW Sham Lal who was the Investigating Officer (I.O) of the case, the court below has held that the I.O during cross examination admitted that the articles recovered were deposited with the Malkhana, but there was no document revealing deposit or withdrawal of seized articles from the Malkhana. The articles remained with I.O for about a week and he in a casual manner stated that the articles recovered were deposited with Malkhana, but there was no document to suggest that the seized drugs were deposited or withdrawn from the Malkhana. The articles remained with I.O for about a week and he in a casual manner stated that the articles recovered were deposited with Malkhana, but there was no document to suggest that the seized drugs were deposited or withdrawn from the Malkhana. There was not a receipt or Malkhana register to convince the court that the articles from the accused were in fact kept in the Malkhana. From the perusal of the impugned judgment it reveals that there was not a whisper regarding sending of seal to FSL along with articles seized from the accused in order to tally the seals with the seals affixed on the packets. In the present case, no seal was found. Further, the FSL report was not annexed with the challan at the time of its presentation, as the report was issued by the FSL after the presentation of the challan. The prosecution has not tried to prove this vital document in the case. The court below has further observed that there is no evidence on record after the alleged seizure of Narcotic so made in the case. All the witness have only deposed upto the seizure and sealing of the article, what happened to the seized articles, to the seal and deposit and withdrawal of seized article from Malkhana has not been spoken by any of the witnesses produced in the case by the prosecution. 9. I have heard rival contentions of learned counsel for the parties and perused the record. 10. I have also perused the impugned judgment and order dated 26.07.2007, I find that link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though seized articles are said to have been kept in the Malkhana, however, Malkhana register was not produced to prove that it was so kept in the Malkhana till it was sent to FSL. The sample seal was not produced in Court which was mandatory as is interpreted by Supreme Court in case titled State of Rajasthan vs. Gurmail Singh (2005) 3 SCC 59 . 11. The heroin and brown sugar alleged to have been seized from the possession of the accused were not produced before the trial court, so as to connect them with the samples sent to the Forensic Science laboratory. 11. The heroin and brown sugar alleged to have been seized from the possession of the accused were not produced before the trial court, so as to connect them with the samples sent to the Forensic Science laboratory. There is not material produced in the trial, apart from interested testimony of the police officers, to show that the heroin and brown sugar were seized from the possession of the accused. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of heroin and brown sugar were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for the failure to produce them, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under NDPS Act. 12. On the basis of above discussion, this Court is of the opinion that the prosecution has failed to prove the allegations made against all the accused. I am not inclined to interfere with the judgment and order dated 26.07.2007 passed by the court below the appeal is liable to be dismissed. 13. Appeal is dismissed. 14. Let the lower court record be send back forthwith along with a copy of the judgment of this appeal.