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2020 DIGILAW 239 (JK)

State of Jammu and Kashmir v. Nand Lal

2020-06-10

PUNEET GUPTA, RAJESH BINDAL

body2020
JUDGMENT : Puneet Gupta, J. 1. The application for leave to appeal is filed against the judgment dated 27.04.2019 passed by the learned Principal Sessions Judge, Kathua in case No. 59/2015 Spl. Challan as the respondent has been acquitted in the case. 2. On a written docket, EXTP-1, scribed by PW-1 S.I. Kulwant Singh, F.I.R. No. 90/2015 came to be registered with police station, Kathua for offence under Sections 8/21/22 NDPS Act. S.I. Kulwant Singh, I/C PP Basantpur along with other police personnel was on a patrol duty in Dhanore area and at about 10.30 a.m., when the patrol party reached near K.V. school, the accused was spotted riding on a cycle coming from Lakhanpur side and who tried to conceal himself from the police party. The accused was carrying a bag on shoulder at that time and tried to conceal himself whereupon a suspicion arose against the accused. The accused was taken into custody and on the checking of the bag he was found in possession of 95 tablets of Rescalm, 35 tablets of Biozalan plus, 100 tablets of Bolodole plus, 20 tablets of Mizokam-DT20, 35 tablets of Ultrasemiset and 80 tablets of Mobicam, DT, which were wrapped in strips and the accused could not give any satisfactory explanation with regard to the said tablets. The strips were seized vide memo EXTP-1/1. The investigation was carried out on the registration of the case by Inspector Ritesh Sambyal, then SHO Police Station, Lakhanpur. 3. On the completion of the investigation, the challan was produced against the accused under Sections 8/21/22 NDPS and the charges were also framed for the offences under Sections 8/21 NDPS Act. The accused pleaded not guilty to the charges and claimed trial. The prosecution has examined 08 witnesses in support of its case. On closure of the prosecution evidence, the statement of the accused under Section 342, Cr.P.C. was recorded and the accused denied the prosecution evidence. The accused claimed to run a chemist shop under the name and style of Ms. Beer Medicates at village Dhanore and that the licence of the shop was taken by him in the year, 2006. The documentary record was placed on file by the accused. However, he did not chose to produce any witness in defence. 4. The accused claimed to run a chemist shop under the name and style of Ms. Beer Medicates at village Dhanore and that the licence of the shop was taken by him in the year, 2006. The documentary record was placed on file by the accused. However, he did not chose to produce any witness in defence. 4. The trial Court while acquitting the accused has held that the place from where the accused is alleged to have been apprehended cannot be said to be isolated place with many civil persons moving there but the I/O failed to call anyone on spot at the time of, seizure, sampling and other proceedings after the recovery of medicines from the possession of the accused. The credibility of the prosecution version has been doubted by the trial Court in view of the above and has relied upon the judgment of the Apex Court reported in : AIR 2017 SC 3751 titled Krishan Chand v. State of Himachal Pradesh. It could not be contended successfully on behalf of the appellant that in the present case the non-examination of the independent witnesses is not fatal to the prosecution case when they could be easily available on the spot when the recovery was allegedly affected from the accused. 5. The trial Court has also noted that the accused was a recognised chemist and running a medical shop at village Dhanore and that the medicines recovered from the accused belongs to his shop. The trial Court has rightly questioned the act of the PW-1 who was incharge PP Basant Garb, at the relevant point of time about the necessity to arrest the accused and recommend F.I.R. against him when he was in know of the above fact. The trial Court has also concluded that the medicines recovered from the accused were not banned drugs which is itself the case set up by the prosecution. It could not be contended successfully on behalf of the appellant that the findings reached by the trial court on the above aspect requires reconsideration in appeal, being unjustified and unreasonable. 6. The trial court has also mentioned of another infirmity in the prosecution case which pertains to non-explanation of proper and safe custody of the material seized from the accused. 6. The trial court has also mentioned of another infirmity in the prosecution case which pertains to non-explanation of proper and safe custody of the material seized from the accused. The Court has mentioned about the failure of the prosecution in its duty to record the mandatory entries in the malkhana register with regard to the deposit of the seized articles and their movement from the malkhana, when the parcels of sample were taken out on 26th October, by the I/O for depositing of the same with the FSL. The copy of malkhana register has not been produced by the prosecution and the oral evidence of the PW-7 Anchal Singh with regard to the deposit and taking out of the sample on 23 October and 26 October, respectively cannot be relied upon on oral evidence as is held by the trial court. Lastly, the Court has also examined the certificate EXTP-5 which is purportedly issued on the re-sealing of the samples as it has been mentioned that two copies of the certificates are on the file including one photocopy which was filed after going through the certificate EXTP-5. As per the impugned order the I/O could not justify the two certificates which are on the file with regard to resealing of the samples. The link evidence in the prosecution is found missing by the trial Court. There can be no second opinion that in a case like the present one where the charges carry stringent punishment the prosecution has to come clean in all respects through its evidence. The safe and proper custody of the material seized is of utmost significance in a drug related case as any tampering with the seized material has to be ruled out. 7. The appellate court finds no reason not to concur with the findings given by the trial court in this regard. The submission of learned counsel for the appellant that the trial Court has failed to appreciate the prosecution evidence in its right perspective has no force as the trial court has taken into consideration all the material on record while giving its detailed findings. 8. No interference is called for in the judgment of the trial court. 9. The application filed seeking leave to appeal is dismissed having no merit.