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2019 DIGILAW 450 (JK)

State of J&K v. Vinay Kumar

2019-10-15

RAJESH BINDAL, SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. This criminal acquittal appeal is against the judgment dated 31.08.2010 passed by the learned Principal Sessions Judge, Samba in case arising out of FIR No. 129/2002 registered at Police Station, Samba in which the accused/respondents were tried for charges punishable under Sections 15/18 of Narcotic Drugs & Psychotropic Substances Act (hereinafter to be referred to as 'NDPS Act'). 2. The facts of the prosecution in brief are that on 30.10.2002, an information was received at Police Station Samba that the accused were selling narcotics underneath a tree near petrol pump. On receipt of this information from reliable sources, Police party accompanied by Executive Magistrate, Samba reached the place and searched the accused. Prosecution case is that a plastic bag containing 7 Kgs of Bhuki was recovered from the accused-Vinay Kumar, out of which, a sample of 100 gms was taken and sealed. While on the disclosure made by the accused-Ashwani Kumar, 72 packets weighing 14 Kgs and 400 gms of Bhuki were recovered from a Cow shed. It is further alleged that he had hidden a bag containing packets of 200gms of Bhuki, each covered with polythene. Separate sample was taken out of the sealed items and sent for chemical examination. These samples were found to contain opium powder. 3. After the charges were framed, prosecution examined PWs Ved Parkash, Naib Tehsildar, Joginder Raj, H.C. Nirmal Singh Constable, Girdhari Lal Constable, Amarjit Singh SPO, Pritam Chand, Prem Sagar, Desraj SPO, Deepak Pathania, S.I., Thakur Dass, Chanderjit Singh, Inspector and Rohit Koul Scientific Officer. 4. The Trial Court after hearing arguments and appreciating the evidence acquitted the accused giving them the benefit of doubt for the reasons as stated in the aforesaid judgment dated 31.08.2010, which reads as thus:- "That no civilian was associated by the police in the raid of the accused. Neither the Numberdar or Chowkidar nor any civilian of the locality was called on the spot at the time of the recovery or disclosure statements. Only, the police personnel have tried to incriminate the accused and have stated that Bhuki was recovered from the accused. In this regard, however, there are numerous contradictions in the prosecution evidence which has already been pointed out herein above with regard to the recovery and the person from whom the same was recovered. Only, the police personnel have tried to incriminate the accused and have stated that Bhuki was recovered from the accused. In this regard, however, there are numerous contradictions in the prosecution evidence which has already been pointed out herein above with regard to the recovery and the person from whom the same was recovered. Besides this, the Naib Tehsildar, though was also associated by the police, for conducting the raid on the accused persons and to recover the Bhuki, has demolished whole of the prosecution version with regard to the recovery of Bhuki from the accused persons or the accused Ashwani Kumar having made any disclosure statement. He has rather asserted that a child standing on spot disclosed that more Bhuki was kept on the spot. He further, in unambiguous terms has stated that it was neither recovered from the accused persons nor at their instance. He has also stated that Bhuki had already been recovered when he along with the police raided the spot and police was already present there which though has been denied by the investigating officer. Considering that the only independent witness, who happen to be the Magistrate of the area, has demolished the very prosecution case which itself was full of contradictions. As the feeble prosecution case built up by the police personnel only, stands demolished by the Magistrate and civilian witness who allegedly weighed the bhuki, the prosecution has failed to bring whom the guilt to the accused beyond any reasonable shadow of doubt. As such, the accused deserve benefit of doubt. Accused are accorded benefit of doubt and are acquitted of the charges leveled against them. They are released of their bail bonds.” 5. We have heard Mr. Ayjaz Lone, learned Government Advocate and Mr. K.S. Puri, learned counsel for the respondents. 6. The grounds of appeal are sketchy and in fact, the main ground of challenge is that the evidence has not been believed because it comes only from the police and no one from public was associated. Mr. Lone, learned GA appearing for the State, however, argued that PW-Ved Parkash, Naib Tehsildar has supported the prosecution story in his examination-in-chief and statement, in his cross-examination, however, he has stated contrary to the facts. This part of the statement could be ignored as the SHO and the other Police Officers have proved the recovery of the contraband. Mr. Lone, learned GA appearing for the State, however, argued that PW-Ved Parkash, Naib Tehsildar has supported the prosecution story in his examination-in-chief and statement, in his cross-examination, however, he has stated contrary to the facts. This part of the statement could be ignored as the SHO and the other Police Officers have proved the recovery of the contraband. His main submission was that since such a huge quantity of contraband is involved, and considering the nature of crime, the Court should take a serious view of the matter and allow the appeal. 7. Mr. Puri, learned counsel for the respondents, on the other hand has argued that the judgment of the Trial Court is based on proper appreciation of evidence and no ground has been made to take a different view. 8. We have perused the record and it appears that though the learned Sessions Judge has based the order of acquittal only on the statement of PW-Ved Parkash (Naib Tehsildar), this, however, is not the only infirmity in the prosecution case. The most important fact is that the Police officials proceeded to the place of occurrence on the basis of source information. The question which SHO ought to have been asked was to disclose the source. In reply to last question asked by the defence counsel, PW-Chanderjit Singh-Police Inspector, who was SHO Police Station Samba, denied the suggestion that before he arrived on spot, the accused were arrested by the police but he, however, was not asked to disclose the source of information as recorded in the FIR. PW-Desraj, who was a Special Police officer in Police Station Samba had made a categoric statement that the police party headed by SHO and Naib Tehsildar arrived on spot, the police personnel had already arrested the accused and recovered the contraband (Bhuki) which was lying on the spot. He was neither declared hostile nor cross examined after seeking permission from the Court. Therefore, his statement demolishes the prosecution case, as he is the prosecution witness to prove, that the reliable source was none other than the police personnel who had arrested the accused with alleged contraband. If that be so as it really is, Section 50 of NDPS Act was not attracted in view of the law laid down in "State of Himachal Pradesh v. Pawan Kumar" 2005 (4) SCC 350 . If that be so as it really is, Section 50 of NDPS Act was not attracted in view of the law laid down in "State of Himachal Pradesh v. Pawan Kumar" 2005 (4) SCC 350 . This speaks volumes of ignorance of the Investigating Officer and there was no need to give the accused notice for further search to be made before a Gazetted Officer. Be that as it may, the denial by PW-Chanderjit Singh about the presence of Police officer on spot prior to his arrival if not correct and his evidence cannot be relied upon in view of the categorical statement of PW-Desraj and PW-Ved Parkash. 9. Statement of PW-Ved Parkash, Naib Tehsildar is destructive of entire prosecution case which corroborates what had been stated by PW-Desraj. According to PW-Ved Parkash, when he reached on spot, the accused was surrounded by two constables with a bag containing alleged Bhuki and the bag containing alleged Bhuki was lying on the ground. Beside this, the policemen were standing on road side near the said tree. The Trial Court rightly gave weightage to the evidence of PW-Ved Parkash because he is a star witness and was a witness of the search and seizure of the contraband. He admitted the seizure memos but denied from where the same were recovered. Even for recovery from the cow shed, his statement is that there was one child, who said about the Bhuki lying there. None of the accused said so. 10. The evidence of Inspector-Deepak Pathania is also not helpful because he denied that the accused persons were already in custody of the police before the SHO arrived alongwith PW-Ved Parkash because this is not correct as PW-Desraj and PW-Ved Parkash, who had neither been cross-examined nor declared hostile and in the absence of which the statements have to be treated as evidence of the prosecution. 11. It is trite law that when the prosecution case has two versions, one favourable to the accused must be accepted. Moreover, it is admitted by Chanderjit Singh, I.O. that recovered Bhuki weighing more than 70Kgs was deposited in the police Mal Khanna but there is no record of the said deposit and what had happened to the seized Bhuki is not disclosed. Moreover, it is admitted by Chanderjit Singh, I.O. that recovered Bhuki weighing more than 70Kgs was deposited in the police Mal Khanna but there is no record of the said deposit and what had happened to the seized Bhuki is not disclosed. This further makes the case doubtful in view of the observations made by the Hon'ble Apex Court in State of Rajasthan vs. Gurmail Singh, ' (2005) 3 SCC 59 ', which reads as under:- "3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on 5.6.1995. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.” 12. In views of the above, discussions, we find no reason to interfere with the judgment of the learned Trial Court. Accordingly, the appeal fails and is dismissed upholding the order of acquittal passed by the learned Sessions Judge, Samba.