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2020 DIGILAW 576 (JK)

State of J&K v. Prikshit Singh

2020-11-10

DHIRAJ SINGH THAKUR, RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal J.— CONCR No.88/2016 Present application has been filed for condonation of 147 days’ delay for filing the application seeking leave in filing an appeal against the judgment dated 31.12.2015. For the reasons stated in the application, the same is allowed. Delay condoned. Application stands disposed of. SLA is taken on board. SLA No.96/2016 1. The present application has been filed seeking leave to prefer an appeal against the judgment dated 31.12.2015 by virtue of which the respondents have been acquitted of the charges for commission of offences under sections 8, 21 and 22 of the Narcotics Drugs Psychotropic Substances Act, 1985 (for short the NDPS Act). 2. Briefly stated, on 31.07.2010, ASI Shyam Singh along with H. C Dalbir Singh, Constable Neelam Kumar, Constable, Rughubir Singh, SPO Raj Kumar and SPO Rajinder Kishore Singh were on patrolling duty at Badhwani National Highway and during checking of the vehicle at 3.30 PM, three unknown persons came down from an unknown vehicle and on seeing the police, they started running. On suspicion ASI Shyam Singh along with other policemen apprehended them and on enquiry, they disclosed their names as Parikshit Singh, Amarjeet Singh and Vickey Kumar, respondent Nos. 1, 2 and 3 herein respectively. On search of all the accused, seven packets were found in the polythene packets containing 100-100 capsules in each packet and total 700 capsules of Paryaml Spas were found from respondent No. 1, three packets were recovered from the pocket of pant of respondent No. 2 containing 100-100 capsules each, totaling 300 capsules and from the search of respondent No. 3, 10 stripes of Intoxicated capsules Parvan Spas totalling 100 capsules were recovered. As the respondents could not furnish any permission for possession of the capsules, they were taken into custody and a docket was written and sent through Constable Neelam Kumar to Police Station, Samba. FIR No. 165/2020 for commission of offences under sections 8, 21 and 22 of the NDPS Act was registered against the respondents herein and the investigation was entrusted to Sub Inspector, Anil Sharma. After completion of the investigation, challan was produced in the trial court. Charges were framed on 05.08.2011. Prosecution out of 10 listed witnesses in the challan has examined seven witnesses, namely, PW-1 Shyam Singh, HC PW-2 Dalbir Singh, PW-3 Sgct Kishore Singh, PW-4 Ct. After completion of the investigation, challan was produced in the trial court. Charges were framed on 05.08.2011. Prosecution out of 10 listed witnesses in the challan has examined seven witnesses, namely, PW-1 Shyam Singh, HC PW-2 Dalbir Singh, PW-3 Sgct Kishore Singh, PW-4 Ct. Raghbir Singh, PW-5, Constable Neelam Kumar; PW-6 HC Tara Chand and PW-7 Sat Paul (Executive Magistrate 1st Class). Three witnesses, namely, PW-8, Director FSL, PW-9 PSI Anil Sharma (I.O.) and PW-10 Inspector Gian Chand Sharma were not examined by the prosecution-applicant. 3. Brief and relevant resume of the prosecution witnesses is as under: 4. PW-1 ASI Shyam Singh stated that on 31.07.2020, he along with other constables had laid a naka and three boys came down from an unknown vehicle and on seeing the police party, they tried to hide themselves, that created a doubt and he along with other constables ran behind them and took them into custody and during search, he recovered seven sealed packets containing 700 capsules of Parymal Spas from respondent No. 1, 300 capsules of Parymal Spas from respondent No. 2 and 100 capsules from respondent No. 3. Thereafter, he prepared the seizure memo of the capsules on spot and took 10-10 capsules as samples for sending the same to the FSL, Jammu for chemical analysis. He wrote a docket for registration of FIR and Investigating Officer(I.O.) came on spot and he handed over the capsules packets and respondents to the I.O. He identified his signature on the seizure memo as well as on the fard supurdnama Mohr. In cross-examination stated that eleven packets of capsules those were seized on spot & were seen in the court were without any seal and same were in polythene without any seal. The capsules can be taken out easily from the polythene packets and can also be put inside the packets easily. He has stated in the statement under section 161 Cr.P.C. that the packets were found from respondent Nos. 2 and 3 inside the pockets of their pants. He has not taken the consent from the accused persons prior to their search as to whether they wanted to get their search conducted in the presence of Magistrate or Gazetted Officer or some senior officer. He prepared the seizure memo and sealed samples on spot. He did not know when I.O. came on spot. He has not taken the consent from the accused persons prior to their search as to whether they wanted to get their search conducted in the presence of Magistrate or Gazetted Officer or some senior officer. He prepared the seizure memo and sealed samples on spot. He did not know when I.O. came on spot. He neither prepared any FSL form on spot nor he knows anything regarding the FSL form. FIR number, year and offence was written by the I.O. on the seizure memo of the capsules. He had not written the same on the seizure memo nor it was his hand writing and all the investigation was conducted by the I.O. on spot. 5. PW-2 HC Dalbir Singh has stated on the similar lines as of PW-1 Shyam Singh with regard to the laying of naka as well as checking and recovery of capsules effected from the accused persons. He has stated that 20 capsules were taken out for FSL examination. ASI sealed the capsules and wrote a docket for lodging of FIR through Neelam. He identified his signature on the seizure memo and also on the Fard Supurdnama Mohr. In cross-examination, stated that the naka was laid near Rim Jim Bar and Restaurant and Sainik Board Office, where there is also Panchvati Restaurant. Shops were also open at that time. The accused persons came down from Punjab Roadways bus and started running. He did not know as to when I.O. came on spot and capsules were recovered from the pockets of pant and socks of the accused persons. No option was given to the accused persons for their search. He did not read as to what was written on the seizure memo of the capsules. No FSL form was filled on spot. Offences in the FIR were already written. Seizure memo was prepared by the I.O. and specimen seal was not given on the supurdnama to him. People who were present on spot were not associated as the witnesses by the PW-1 as well as I.O. He did not know who took the search of the accused persons. 6. PW-3 Kishore Singh has stated on the similar lines as stated by PW-1 ASI Shyam Singh with regard to laying of Naka, search and recovery from the accused persons. He has further stated that after recovery they took the accused and the capsules to the police station. 6. PW-3 Kishore Singh has stated on the similar lines as stated by PW-1 ASI Shyam Singh with regard to laying of Naka, search and recovery from the accused persons. He has further stated that after recovery they took the accused and the capsules to the police station. He signed a document on spot. In the cross-examination, he stated that the vehicle they stopped was a bus from which the accused stepped out and he did not remember the number of the bus. At that time, there were 20/25 passengers in the bus, and the bus was of Punjab Roadways and the passengers were inside that bus. He did not remember as to when the bus was stopped. He has counted only one packet and did not count the remaining packets and after counting, police had also prepared the documents and he had signed those documents, which he has not seen in the court today and he did not remember as to who else had signed the documents those he handed over to the police on spot. Statement has been recorded by the ASI Shyam Singh and no other proceedings besides that were conducted before him on spot. He stated that on having a suspicion also, the consent of the accused was not taken and they were not informed that they can be searched by the Gazetted Officer or Magistrate. No such kind of option was given to the accused persons. 7. PW-4 Ct. Raghbir Singh has also narrated the same story with regard to the Naka, arrest and recovery of capsules of the accused persons. He has stated further that the Incharge Naka took the accused persons in the Police Station, Samba and further proceedings and enquires were made regarding them in the Police Station, Samba. Police has taken the signature on the papers and what was written on that documents were not read over to him and those documents were related to that case. In cross-examination, he has stated that the capsules those are shown to him today are not sealed and the packets which are shown to him have 100 capsules in each packet. He has not counted the capsules today and total capsules which he saw were 1200, then deposed that the capsules were not 1200 but 1190. Accused were taken in the police vehicle from spot to the Police Station, Samba. He has not counted the capsules today and total capsules which he saw were 1200, then deposed that the capsules were not 1200 but 1190. Accused were taken in the police vehicle from spot to the Police Station, Samba. I.O. has made three different seizure memos of the recovered capsules, those were made by Sub Inspector Anil Sharma. He has stated that there was a hotel near the place of occurrence but no one from the hotel was called on spot. Shopkeepers were witnessing the whole incident but nobody came on spot. Also after recovery of capsules from the accused, ASI Shyam Singh had not called anybody from the hotel on spot. 8. PW-5 Ct. Neelam Kumar has also deposed in the similar manner with regard to the naka as well as recovery of the contraband from the accused persons. He further states that one capsule each from the packets was taken out as sample for FSL examination. Thereafter, a docket was written by Incharge Naka ASI Shyam Singh and handed over to him for registration of FIR. Thereafter, I.O. Anil Sharma came on spot and Incharge Naka handed over the seized capsules and accused persons to the I.O. He identified his signature on the seizure memo. In cross-examination, he stated that there is no signature of the I.O. and seal over the capsules which are seen in the open court. There is no signature of any of the witness and there is no seal. He did not know about the impression of the seal and how many seal impressions were put on the packets. He could not remember whether the FSL form was filled or not. He could not say as to how, the accused persons had hidden the capsules in their pockets. They searched the accused persons only after a doubt was created. No option was given to the accused persons before search whether they wanted to be searched in presence of the Magistrate or Gazetted Officer. Incharge Naka did not call any civil person as witness. 9. PW-6 Tara Chand (MHC) has stated that on 15.09.2010 he was posted in the Police Station Samba as Munshi. I.O. handed over the seized capsules to him and at the time of presenting the challan, I.O. had taken the capsules back from him. No document was prepared for handing over capsules to him and taking back of the same. 9. PW-6 Tara Chand (MHC) has stated that on 15.09.2010 he was posted in the Police Station Samba as Munshi. I.O. handed over the seized capsules to him and at the time of presenting the challan, I.O. had taken the capsules back from him. No document was prepared for handing over capsules to him and taking back of the same. The capsules have been seen by the witness in the open court, the capsules are the same those were received by him and subsequently handed over to the I.O. In cross-examination, he stated that the capsules are tied in a packet but they are not sealed. It is true that the packets in which the capsules are kept, one by one, the capsules can be taken out from those packets easily. He did not remember as to how many capsules were handed over to him and also he cannot say as to how many packets were there and no seal was put by the I.O. on those packets. 10. PW-7 Sat Paul, EMIC has stated that on 02.08.2010, he was posted as Naib Tehsildar, Samba. On that day, SHO Police Station, Samba produced three sealed packets and requested for re-seal of the same. He resealed the packets with his seal and also wrote authority letter in the name of FSL, Jammu to open the same. He identified his signature on the documents. In cross-examination, stated that he did not open the sealed packets those were produced before him and also did not count the same. He could not remember, whether the seal with which the packets were sealed was produced by the police or not. He did not know how many seal impressions were put on the packets. 11. This is the whole of the prosecution evidence led by the applicant before the trial court. After recording of the statement of the respondents under section 342 CrPC and after hearing both the sides, the learned trial court vide judgment dated 31.12.2015 acquitted the accused-respondents. 12. He did not know how many seal impressions were put on the packets. 11. This is the whole of the prosecution evidence led by the applicant before the trial court. After recording of the statement of the respondents under section 342 CrPC and after hearing both the sides, the learned trial court vide judgment dated 31.12.2015 acquitted the accused-respondents. 12. Learned counsel for the applicant has stated that there was sufficient evidence against the Respondents but despite that the learned trial court has acquitted the respondents and on the contrary the Learned counsel for the respondents has argued that the learned trial court has rightly appreciated the evidence led by the prosecution and also that the mandatory provisions of NDPS have not been followed during investigation. 13. Heard and considered. 14. From the evidence brought on record by the prosecution, it is evident that the independent witnesses were available on the place of occurrence as there is Rim Jim Restaurant, Office of the Sainik Board and Panchbati Restaurant near the place of occurrence but despite that no independent witnesses were associated either by the PW-1, ASI Shyam Singh or PW-9 SI Anil Sharma, that creates a doubt regarding the truthfulness of the prosecution case. The prosecution case further suffers because of the reason that there was no proper sealing of the packets containing contraband, those was produced before the trial court. PW-Shyam Singh has categorically that the capsules shown to him were unsealed and they were not sealed by him whereas constable Neelam Kumar also stated that the capsules seen by him in the open court were not sealed. It was the duty of the Investigating Officer to seal the contraband (capsules) allegedly recovered from each of the respondents. I.O. has miserably failed to do so and there always remain a chance of fiddling with the evidence in absence of proper sealing of the alleged contraband. Malkhana Register is also very vital document so far as the cases of the NDPS Act are concerned. The Investigating Officer has not bothered to place on record the Malkhana Register so as to demonstrate that after the recovery of the capsules from the accused persons same were kept in Malkhana and proper entries were made in the Malkhana Register. Malkhana Register is also very vital document so far as the cases of the NDPS Act are concerned. The Investigating Officer has not bothered to place on record the Malkhana Register so as to demonstrate that after the recovery of the capsules from the accused persons same were kept in Malkhana and proper entries were made in the Malkhana Register. There is absolutely no evidence with regard to the deposit of capsules in the Malkhana and also there is no evidence with regard to the taking away the samples from the Malkhana for resealing and also for the purpose of sending the same to the FSL for chemical analysis. It further causes a dent in the prosecution case. Neither the PW-1-ASI Shyam Singh nor PW-SI Anil Sharma has prepared the FSL form on spot. The filling of FSL on spot is a very important safeguard to ensure that the same sample is not tampered with till the final chemical analysis by the FSL. It further demolishes the whole of the prosecution case. The another very important feature is that the seal that was used for sealing the capsules samples is required to be kept on supurdnama of a witness other than the Investigating Officer and in the instant case PW-2 HC Dalbir Singh has categorically stated that the specimen seal was not handed over to him whereas the custody of the seal remains an unexplained mystery. Another important aspect is that the capsules were allegedly recovered on 31.07.2010 from the respondent and samples were sent to FSL on 06.08.2010 and there is absolutely nothing on record to explain the reason for the delay in sending the samples to the FSL for chemical analysis. More so, in the NDPS cases, the Investigating Officer is very important witness and in the instant case there were number of explanations those were required to be elicited from the I.O. in case the prosecution had produced him as a witness during the trial but unfortunately the prosecution has not produced him as a witness before the trial court, which of course, has caused a great prejudice to the respondents. Besides there is violation of provisions of section 57 of the NDPS Act that mandates whenever any person makes any arrest or seizure under the Act, he shall within the period of 48 hours after seizure, makes a full report of arrest/seizure to his immediate senior officer. In the instant case, there is absolute non-compliance of section 57 of the NDPS Act. This coupled with the other infirmities entitle the respondents to be acquitted. 15. The learned Dy. A. G. appearing for the applicant has not able to point out any evidence that either has been ignored or wrongly appreciated by the learned trial court that requires re-appreciation by this Court. Rather in view of such evidence the Learned Trial Court had no other option but to acquit the accused. The trial court, while appreciating the prosecution case meticulously has rightly come to the conclusion that the respondents are entitled to be acquitted and rather that was the only course available with the trial court. 16. For all what has been said and discussed above, we do not find any reason to grant the leave to the applicant to prefer an appeal, as such, the present application is dismissed. 17. Disposed of along with connected CMs.