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2019 DIGILAW 420 (JK)

State of J&K v. Sukhpreet Singh

2019-09-20

TASHI RABSTAN

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JUDGMENT : Tashi Rabstan, J. The present Acquittal Appeal is directed against the judgment and order passed by 1st Additional Sessions Judge, Jammu (hereinafter to be referred as ‘Trial Court’) in case (File No. 60/2011) titled ‘State of J&K through P/S Nowabad, Jammu v. Sukhpreet Singh’, arising out of a FIR No. 134/2011 registered by Police Station Nowabad, Jammu under Sections 8/20 of Narcotic Drugs and Psychotropic Substances, Act (hereinafter to be referred as NDPS Act), whereby Trial Court has acquitted the accused-respondent herein of the charges framed against him. 2. The prosecution case in brief is that on 26.07.2011 at 2200 hrs, while the accused was travelling on scooter bearing No. JK02R-8120, a Police Party of Police Post Talab Tillo stopped him and on his search 600 grams of cannabis was recovered from his possession which was kept in a white coloured polythene bag. During questioning the accused could not give any justification for possessing the cannabis. On this a case FIR No. 134/2011was registered by Police Station Nowabad, Jammu under Sections 8/20 of NDPS Act. 3. I have heard the learned counsel appearing on respective sides, considered their rival submissions and also perused the record. 4. The learned counsel appearing on behalf of State has challenged the findings of the Trial Court on the grounds tailored in the appeal. It is contended that Trial Court has failed to appreciate the evidence produced by the prosecution and has wrongly acquitted the accused of charges framed against him. It is further contended that prosecution has adduced sufficient evidence to prove the guilt of the accused. In response, defense counsel while supporting the conclusions drawn by the Trial Court has argued that there are major contradictions and inconsistencies in statements of the witnesses with regard to timing of the arrest of accused, place of occurrence, and also with regard to weight of the seized contraband. 5. After a careful consideration of evidence before it, the Trial Court has observed that witnesses have contradicted each other on the material aspects of the matter, therefore, acquitted the respondent of the charges. In order to examine and appreciate the contentions of learned counsels appearing on respective sides, it would be profitable to extract the relevant Para’s of impugned judgment. Para’s 16, 17, 18 and 19 of the impugned judgment are as under:- “16. In order to examine and appreciate the contentions of learned counsels appearing on respective sides, it would be profitable to extract the relevant Para’s of impugned judgment. Para’s 16, 17, 18 and 19 of the impugned judgment are as under:- “16. Prosecution has succeeded to examine PWs ASI Tirath Ram, SPO Ramesh Kumar, Sgct Krishan Chand and SPO Hari Darshan, members of the naka party who claim to have recovered 600 grams of cannabis from accused on 26.07.2011 when he was subjected to checking at Talab Tillo Crossing while travelling on his Motorcycle No. JK02R-8120, however, almost all the witnesses have contradicted each other with regard to timing of the search. ASI Tirath Ram stated it was 10:00 PM, SPO Ramesh Kumar stated it was 6/7 PM, Sgct Krishan Chand stated it was 7:00 PM whereas SPO Hari Darshan stated that it was 9:30/10:00 PM. In view of the major contradictions with regard to timing of the arrival of the accused at the place of occurrence, search, recovery and seizure of the alleged contraband becomes doubtful. 17. PW 6 Vaibhav Mattoo who was stated to be independent witness and that he had weighed the contraband with an electronic scale of his shop. He had stated that he was asked by the police to bring scale from his shop and that he had weighed the contraband at the police scale from his shop and that he had weighed the contraband at the police post which came out 650 grams. Police witnesses, on the other hand, have claimed that the cannabis was got weighed on spot. However, they did not say that PW Vaibhav Mattoo had come on spot. Police case is that 600 grams of cannabis was recovered as stated by PW ASI Tirath Ram informant of the case and PW 4 Sgct Krishan Chand another eye witness whereas PW 5 SPO Hari Darshan has stated that cannabis was 650 grams. Therefore, the eye witnesses have made material contradiction with regard to weight of recovered and seized cannabis. In this situation of the matter, the recovery and seizure of the contraband cannot be said to have been proved beyond reasonable shadow of doubt. 18. The seized contraband had remained in police custody w.e.f. 26.07.2011 to 16.08.2011 for a period of more than 20 days as has been stated by IO. In this situation of the matter, the recovery and seizure of the contraband cannot be said to have been proved beyond reasonable shadow of doubt. 18. The seized contraband had remained in police custody w.e.f. 26.07.2011 to 16.08.2011 for a period of more than 20 days as has been stated by IO. However, there is no documentary or oral evidence with regard to its safe custody and transport to the FSL since the date of its seizure, so much so that even Incharge Malkhana was neither cited as witness not any record with regard to the deposit and withdrawal of contraband from Malkhana was produced. PW 7 Vikas who had been cited as a witness to the seizure has denied that anything was seized in his presence. 19. Though PW 8 Pawan Abrol Forensic Expert has stated that sample that he had received in the case on subjecting to test was found to contain charas but in absence of proof with regard to search, seizure and recovery, the deposition made by forensic expert is of no consequence to base conviction. Another important aspect of the matter is that alleged contraband stated to have been seized from the person of the accused from pocket of his trousers. In such a situation, applicability of section 50 of the NDPS Act with regard to providing of option of search to the accused is attracted and in this case admittedly there is no proof with regard to the fact that accused was either given this option or he was taken to any Magistrate or a gazette officer to be searched in his presence. Section 50 of NDPS Act is a mandatory provision and breach thereof is fatal for the prosecution case.” 6. From the re-evaluation of the evidence recorded by the Trial Court which I don’t want to burden this judgment by discussing the testimonies of the witnesses, it is evident that testimonies are inconsistent on material facts and there are significant variations in the version of witnesses with regard to timing of search, weight of the seized material, place where the search was conducted and the place where seized contraband weighed. It shows the presence of the witnesses on the spot is also doubtful. The prosecution has failed to prove its case beyond reasonable shadow of doubt, therefore, the findings of Trial Court cannot be interfered for want of cogent reasons. 7. It shows the presence of the witnesses on the spot is also doubtful. The prosecution has failed to prove its case beyond reasonable shadow of doubt, therefore, the findings of Trial Court cannot be interfered for want of cogent reasons. 7. It is a settled law that appellate court will not lightly interfere with the judgment of acquittal, if the Trial Court has recorded the findings, which are based on an elaborate appreciation of evidence available on record. The appellate 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 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 v. State of Rajasthan AIR 2004 SC 2943 and Upendra Pradhan v. State of Orissa (2015) 11 SCC 124 ). 8. It is worthy to note that Trial Court has observed that Section 50 of the NDPS Act is breached in this case. In order to avoid the abuse of provisions of the NDPS Act by police, Section 50 of the Act makes it imperative upon the searching police party to inform the person intended to be searched of his right of search before any Gazetted Officer or Magistrate particularly when the contraband is seized from the person of the accused. In this case, there is nothing on record to show that police party has complied with this mandatory provision. 9. Considering the case in hand in the light of aforesaid discussions, the findings of the Trial Court cannot be said to be perverse or manifestly erroneous warranting interference. The appeal lacks merit as such dismissed. Registry to send down the record.