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J&K High Court · body

2020 DIGILAW 577 (JK)

State of J&K v. Abdul Rashid

2020-11-10

DHIRAJ SINGH THAKUR, RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal J.— CONCR No.128/2017 Present application has been filed for condonation of 149 days’ delay for filing the application seeking leave in filing an appeal against the judgment dated 29.04.2017. For the reasons stated in the application, the same is allowed. Delay condoned. Application stands disposed of. SLA is taken on board. SLA No.126/2017 1. The present application has been filed seeking leave to prefer an appeal against the judgment dated 29.04.2017 passed by the Additional Sessions Judge, Jammu by virtue of which the respondent has been acquitted of the charges for commission of offences under sections 8 and 20 of the Narcotics Drugs Psychotropic Substances Act, 1985 (for short the NDPS Act). 2. Before appreciating the contentions of learned counsel for the applicant, it would be appropriate to give brief resume of the prosecution story. 3. On 25.10.2011, ASI Mohammad Yaqoob Wani along with Sanjeev Singh, Tarseem Lal and Jai Paul at about 6:15 PM, while on naka duty, near Pawan Ice Cream, intercepted one person coming on foot from Gurah Morh towards Pawan Ice Cream, holding black colour cloth bag in his hand. On search of the bag, charas wrapped in 74 numbers of corn peels weighing 4 kg was recovered. Out of 4 kg of charas, 20 grams sample was drawn and after sealing, it was marked as A-1 and rest of the contraband was sealed and marked as Mark-A. Sample was got resealed by the Executive Magistrate and was sent to FSL Jammu for chemical analysis. After completion of the investigation, a final report in terms of section 173 Cr.P.C. was submitted before the Court. Charges for commission of offences under sections 8 and 20 of the NDPS Act were framed against the accused-respondent. The respondent did not plead guilty and prosecution was directed to lead its evidence. The prosecution has produced 11 witnesses in support of the charges. The brief resume of the depositions of the prosecution witnesses is as under: 4. PW-1, Mohammad Yaqoob Wani stated that on 25.10.2011 he was on naka duty along with Sanjeev Singh, Tarsem Lal and Jai Paul and at about 6.00 PM, he found one person carrying black bag and on enquiry, he disclosed his name as Abdul Rashid and on search of the bag, charas wrapped in the corn peels was recovered. Docket was sent to the Police Station through Sanjeev Singh. Docket was sent to the Police Station through Sanjeev Singh. Thereafter, PW-8 Mohinder Singh (Investigating Officer) reached on spot from the Police Station, Bakshi Nagar. He proved the docket and also seizure memo. He also identified the bag of charas. In cross-examination, he stated that there was no prior information with regard to the seized contraband and search was conducted on mere suspicion. Within 15 minutes after the dispatch of docket, Investigating Officer (PW-8) reached on spot and seized the contraband and weighed in his presence that was found 4 kg but he does not remember the weight of the sample. 5. PW-2 Sanjeev Singh has also stated on similar lines as that of PW-1 with regard to the arrival of the respondent and with regard to his search. He further stated that 74 number of corn peels containing charas weighing 4 kg were recovered and he carried the docket to the police station. A sample weighing 20 grams was also drawn from the seized contraband. He proved the recovery and seizure memo and also supurdnama of ring. The ring was entrusted to PW-5, Rattan Lal. He identified the bag and also the seized the contraband in the court. In cross-examination, he stated that the colour of the recovered contraband was black. Search of the respondent was conducted by PW-4. PW-8 (IO) reached on spot within 10 minutes. No Magistrate or Gazetted Officer was called on spot. PW-5 weighed the alleged contraband with 2-2 kg weights. A sample of 20 grams was drawn from the seized contraband for FSL examination. Seizure memo was prepared on spot. He does not know Urdu, as such, he cannot say what was written in the seizure and search memos. He expressed ignorance as to whom the ring was given, however, he signed on the supardnama. He has no knowledge as to where Investigating Officer had kept the contraband after its seizure. 6. PW-3-Tarsem Lal has also stated on similar lines as that of PW-1 with regard to arrival and search of the respondent. He further stated that the ring was kept on the supardnama of Sanjeev Singh. In cross-examination, he stated that naka was laid between 6 to 6:15 PM. Investigation Officer (PW-8) came on sport after the recovery of the contraband from the respondent. He admitted that the search of the respondent was conducted before the Investigating Officer reached on spot. He further stated that the ring was kept on the supardnama of Sanjeev Singh. In cross-examination, he stated that naka was laid between 6 to 6:15 PM. Investigation Officer (PW-8) came on sport after the recovery of the contraband from the respondent. He admitted that the search of the respondent was conducted before the Investigating Officer reached on spot. PW-4 conducted search of the respondent. Charas was wrapped in 74 numbers of corn peels. Charas was weighed by PW-1. Weighing scale belonged to PW-5. Weighing stones were of 1 and 2 kg respectively. A sample of 50 grams of charas was drawn on spot and the papers were prepared by PW-8 (Investigating Officer). He did not remember the mark put on the packet. He also did not remember the mark of the ring kept on the supardnama of PW-6. He had no knowledge whether FSL form was filled on spot or not. Investigating Officer kept the seized contraband in his possession. 7. PW-4-Jai Paul has also stated on similar lines as that of PW-1 with regard to the arrival and recovery of the contraband from the respondent. He further stated that 20 gram of charas was extracted from the seized charas as sample. Ring was given to him on supardnama which he can produce but subsequently when he was further examined, he could not produce that ring. He further stated that the same was entrusted to PW-6 Rakesh Kumar. In cross-examination, he stated that PW-8 Mohinder Singh weighed the charas. In his presence, sample for chemical examination was taken by PW-8 and seized material was taken to the police station. 8. PW-5-Rattan Lal and PW-6-Rakesh have been turned hostile and they have been examined by the A.P.P but nothing could be extracted from them. 9. PW-7 Abdul Majeed has stated that he was posted as Naib Tehsildar in the year, 2011 and on 03.11.2011, PW-8 Mohinder Singh produced one sealed packet, which was resealed by him with his seal and dispatched the same to FSL, Jammu along with forwarding letter. In cross-examination, he stated that he did not open the packet that was resealed by him. He sent seized contraband for chemical examination to Director FSL, Jammu and not to Director, FSL, Srinagar. 10. In cross-examination, he stated that he did not open the packet that was resealed by him. He sent seized contraband for chemical examination to Director FSL, Jammu and not to Director, FSL, Srinagar. 10. PW-8 Mohinder Singh stated that on 25.10.2011, PWs1 to 4 were on naka duty near Pawan Ice Cream and at about 6:15 PM one person was found coming from Gurah Morah towards Pawan Ice Cream holding black cloth bag in his hand. He was stopped by the PWs1 to 4 and during search 74 number of corn peels containing 4 kg of charas were recovered from that person. From the seized charas, 20 grams sample was drawn and same was sealed. Charas and sample were separately sealed and stamp was given to PW-6 on superdnama. In cross-examination, he stated that he sent the sample to FSL, at Jammu. He has no knowledge, who sent the sample to Srinagar. Charas was kept in the Malkhana. Neither he has knowledge about its receipt nor any record in that respect is filed with the charge sheet. From 25.10.2011 to 03.11.2011, sample of charas was kept in the custody of Incharge Malakhana. 11. PW-9 Sameer Jeelani stated that in the year, 2011, he was posted as SHO Police Station, Bakshi Nagar, Jammu and FIR No. 154/2011 under section 20 of the NDPS Act was registered on the basis of docket sent by PW-1. Investigation of the case was entrusted to PW-8 Mohinder Singh. After completion of the investigation, challan was produced against the accused-respondent. In cross-examination, stated that he cannot say as to where the seized contraband was kept on 25.10.2011. As per report the seized contraband was resealed on 03.11.2011. He cannot say where the IO kept the seized contraband during that period. He has not sent the sample to FSL. 12. PW-10 Head Constable Mohkam Din, Incharge Malkhana stated that he has brought Malkhana Register and as per record one packet containing 74 pieces of charas was deposited in the Malkhana. Register No. 161 depicted that seized contraband was deposited by PW-8. In cross-examination, he stated that there is no entry in Malkhana Register regarding deposit of sample. There is no other entry except entry No. 161 in the Malkhana Register. 13. Register No. 161 depicted that seized contraband was deposited by PW-8. In cross-examination, he stated that there is no entry in Malkhana Register regarding deposit of sample. There is no other entry except entry No. 161 in the Malkhana Register. 13. PW-11 Shakeel Ahmed Wani stated that he has received one sealed packet marked as A-1 enclosed within cloth bearing five intact seals, duly sealed by Executive Magistrate 1st Class, Jammu from Deputy Director FSL, Jammu. On opening 10 grams of brownish greenish coloured material in the form of small pieces was found. The sample was subjected to analysis and was detected as charas. The report was forwarded to concerned forwarding agency. In cross-examination, he stated that due to heavy pendency, the case was referred to FSL Srinagar for chemical analysis. He prepared the report on 20.03.2012. He does not remember whether remnants were received by the Police or not. 14. This is the whole of the prosecution evidence that has been led by the applicant before the trial court. After recording the statement of the respondent under section 342 CrPC and after hearing both the sides, the learned trial court vide judgment dated 29.04.2017 acquitted the accused-respondent. 15. Mr. Aseem Sawhney, learned AAG appearing for the applicant has vehemently argued that PWs 1 to 4 have categorically proved that after the respondent was intercepted , they recovered 74 number of corn peels containing 4 kg of charas from the possession of the respondent but the trial court has not rightly appreciated the evidence. He has further argued that the scientific expert has also categorically stated that the seized material was detected as charas. 16. Heard and considered. 17. The prosecution case suffers from material contradictions with regard to the sealing, weighing of the charas and also with regard to sample taken on spot and its custody. PW-1 has categorically stated that he does not remember the weight of the sample, whereas PW-2 states that sample extracted was 20 grams and PW-3 goes on to the extent that 50 grams was drawn for chemical analysis. PW-4 also states that 20 grams was extracted from the contraband for chemical analysis. Thus, there is material contradiction with regard to the sample drawn from the seized contraband. Another shortcoming in the prosecution case is that there is virtually no evidence with regard to the keeping of the sample in the Malkhana. PW-4 also states that 20 grams was extracted from the contraband for chemical analysis. Thus, there is material contradiction with regard to the sample drawn from the seized contraband. Another shortcoming in the prosecution case is that there is virtually no evidence with regard to the keeping of the sample in the Malkhana. PW-8 has stated that from 25.10.2011 till 03.11.2011 sample of alleged contraband was kept in the custody of Incharge Malkhana, however, PW-10 has categorically stated that there is no entry in the Malakhana Register with regard to the deposit of sample. So the prosecution is absolutely silent as to where the sample of the charas was kept during that period and it goes to the root of the case as it was bounden duty of the prosecution to establish that after seizure was effected from the respondent, not only the seized contraband but the sample extracted from the seized contraband was also kept in proper custody so as to exclude any chance of tampering of the same. PW-11 has categorically stated that he had received one sealed packet marked as A-1 containing brownish green colour material in small pieces weighing 10 grams whereas it is the positive case of the prosecution that 20 grams of charas was extracted from 4 kg of charas for chemical analysis and the same was sent to the FSL Jammu. Notwithstanding the fact that there is dispute with regard to the quantity of the sample drawn from the contraband as narrated by different witnesses, the fact remains that the quantity of sample that was extracted on spot was 20 grams as per the prosecution story and how the quantity of the sample was reduced to 10 grams when it reached for chemical analysis there is no explanation from the prosecution. It further creates a doubt as to whether the same sample was sent to the FSL, Jammu for chemical analysis that was drawn on spot. Needless to mention here that the respondent has been charged for committing heinous offences and the standard of proof is also high in the NDPS cases. The prosecution, as such, has miserably failed to establish that the only sample that was drawn on spot was sent to the FSL, Jammu for chemical analysis and in such scenario, no reliance can be placed upon even the finding of the report of the Chemical Analysis. 18. The prosecution, as such, has miserably failed to establish that the only sample that was drawn on spot was sent to the FSL, Jammu for chemical analysis and in such scenario, no reliance can be placed upon even the finding of the report of the Chemical Analysis. 18. Another very important aspect of the case is that the Investigating Officer had associated with PWs-5 and 6 has independent witnesses with regard to the weighing of the seized contraband but both of the witnesses have turned hostile and have not supported the prosecution. More so all the PWs have narrated different story about the custody of the seal. PW No. 4 initially stated that ring was given to him but he could not produce and later on stated that the same was given to PW No: 6 Rakesh, who turned hostile. 19. The trial court has recorded the findings those are based on meticulous appreciation of evidence available on record. It is well settled law that this Court, while hearing an 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 not perverse. The learned AAG has not been able to demonstrate that the findings recorded by the trial court are manifestly erroneous, contrary to the evidence on record or perverse. 20. As such, the application is mis-conceived and is hereby dismissed.