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J&K High Court · body

2020 DIGILAW 579 (JK)

State of J&K v. Ashwani Kumar

2020-11-10

DHIRAJ SINGH THAKUR, RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.— CrlM No. _____ The Registry to diarize the application for condonation of delay. Present application has been filed seeking condonation of delay of 202 days’ delay in filing the appeal against the judgment of acquittal dated 27.08.2019. For the reasons stated in the application, the same is allowed and delay in filing the appeal is condoned. Special Leave Application is taken on board. Crl LP (D) No.1/2020 1. The present application has been filed seeking leave to prefer an appeal against the judgment dated 27.08.2019 passed by the Principal Sessions Judge, Kathua (for short the trial court) by virtue of which the respondent has been acquitted of the charges in challan arising out of FIR No. 47 of 2014 of Police Station, Kathua for commission of offences under sections 8, 21 and 22 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 as well as evidence of the prosecution witnesses. 3. On 03.02.2014, ASI Daljit Singh posted in Police Station, Kathua along with other police personnel was on patrolling duty at Shaheedi Chowk, Kathua and about 1530 hours, one person came on foot from old Bus Stand, Kathua and on seeking the police party, tried to run away but was chased and apprehended. He was holding a yellow coloured polythene bag in his hand that was checked and another polythene bag black in colour was found in the same, containing 08 bottles of Corex of 100 ml each and 32 Spasmo Proxyvan Plux capsules were found. After the framing of charges, the prosecution examined as many as 8 witnesses, the brief resume of their testimonies is as under. 4. PW-1 Daljit Singh has stated that on 03.02.2014, he along with Jagdev Singh, Hardev Singh and Roshan Lal were on patrolling duty at Shaheedi Chowk, Kathua, where at about 3.30 PM near Captain Chowk, the accused-respondent herein was coming from Bus Stand side holding a yellow polythene bag in his hand and on seeing the police party, he tried to run away but was chased and apprehended. On checking the polythene bag, 35 intoxicant capsules and 08 bottles of Corex weighing 100ml each were recovered. On checking the polythene bag, 35 intoxicant capsules and 08 bottles of Corex weighing 100ml each were recovered. Then he sent a docket to Police Station, Kathua for registration of case and PSI Varinder Singh, Investigating Officer came on spot and he handed over the accused, Corex bottles and capsules to him. He proved the docket and also saw the bottles and capsules in the court. In cross-examination, he has stated that he cannot tell the time when the Investigating Officer prepared the seizure memo as the same was not prepared in his presence. He did not seize the recovered material and he kept the same with the accused only and same was seized by the Investigating Officer from him. He does not know as to how the material was seized by the Investigating Officer and also as to whether any FSL form was filled or not. He does not know the name of the company, batch number, date of manufacture and date of expiry of the seized Corex bottles. There were many shops at Captain Chowk and a big Mohalla and there remains heavy traffic on the road also. The recovered material was not sealed in his presence. 5. PW-2 Jagdev Singh has stated that on 03.02.2014 while he along with other police personnel was on patrolling duty at Shaheedi Chowk, when reached near Captain Chowk, one person tried to run away but he was chased and apprehended who was holding a polythene bag from which 08 bottles of Corex and 32 Parvon Spas capsules were recovered. ASI sent a docket through SPO Roshan Lal and at about 4.30 PM, Sub Inspector Varinder Singh came on spot and he prepared seizure memo and also took out one bottle and 05 capsules those were sealed as sample for FSL. His signatures were obtained on seizure memo and superdnama of seal that was kept on the superdnama of Hardev Singh. In cross-examination, he has stated that he cannot tell the name of company, batch number, date of manufacture and expiry date of the bottles. When they reached Captain Chowk, the accused was already standing there and on seeing them ran away towards hospital. Investigating Officer came after one hour and till then accused was kept standing there but the polythene having the seized material was kept by the ASI Daljit Singh in his custody. When they reached Captain Chowk, the accused was already standing there and on seeing them ran away towards hospital. Investigating Officer came after one hour and till then accused was kept standing there but the polythene having the seized material was kept by the ASI Daljit Singh in his custody. During that period civilians were moving around and some shopkeepers were called by the Investigating Officer but none came there. He cannot tell the impression of the seal. 6. PW-3 Roshan Lal has stated that on 03.02.2014, he along with other police personnel were on patrolling duty at Shaheedi Chowk and then at Captain Chowk they laid a Naka and during checking accused came there holding a yellow coloured polythene bag in his hand and was apprehended by SPO Hardev Singh and on checking capsules and bottles of Corex were seized. ASI Daljit Singh sent a docket to Police Station, Kathua from where Investigating Officer, Varinder Singh came on spot, who prepared seizure memo and seized material was sealed and seal was kept on superdnama of Hardev Singh. In cross-examination, stated that the accused was standing at a distance of 10-12ft. towards the old Bus Stand and when he was apprehended, he did not try to run away and remained standing there. Many people were moving around but none of them was called. The accused was got searched by the Investigating Officer through Hardev Singh, SPO. The accused had not been searched when docket was written nor the bags had been opened till Investigation Officer arrived and rather when Investigating Officer Varinder Singh came on spot, the accused was searched and though suspicion arose before the arrival of Investigating Officer but they did not know the contents of the bag. He stated that it has wrongly been written in his statement under section 161 Cr. P.C. that the accused on seeing them, tried to run away. 7. He stated that it has wrongly been written in his statement under section 161 Cr. P.C. that the accused on seeing them, tried to run away. 7. PW-4 Hardev Singh has stated that on 03.02.2014 he was posted in Police Station, Kathua and on that day he along with other police personnel were on patrolling duty at Shaheedi Chowk where the accused came from Parliband side and on seeing the police party started running but was chased and apprehended and on his search one polythene bag was found in his hand containing 08 Corex bottles of 100 ml each and 32 capsules and then docket was prepared and sent through SPO Roshan Lal for registration of the case, thereafter Varinder Singh, PSI came on spot and seized the recovered material and prepared seizure memo that bears his signatures. The seized material was sealed. In cross-examination, he has stated that when the accused tried to run away, they also ran and accused started running towards old Bus Stand and then he was apprehended at Bhagat Singh Chowk that is on Hatli Morh Road. There were many shops around but no civilian was called there. He neither knows the company’s name of the recovered material nor the manufacture and expiry date. When the accused was apprehended he had kept the material concealed under his shirt and no Magistrate or Gazetted Officer was called before the accused was made to put off shirt and Daljit Singh, ASI brought out the material from underneath the shirt. All the documents were prepared by the ASI. After the accused was apprehended, he was immediately taken to Police Station and seizure was also made in the Police Station. 8. PW-5 Jatinder Singh Mishra has stated that on 07.02.2014, he was posted as Executive Magistrate 1st Class, Kathua and on that date, Sub Inspector, Varinder Singh produced two packets in sealed condition those were marked as A and B. He issued the certificate authorizing the Director, FSL, Jammu to open the seal. In cross-examination, he has stated that the certificate was filled by his clerk. There is no endorsement on the certificate that the same was filled at his instance. No FSL form was produced before him by the police for comparison of police seals affixed at the time of sealing the samples. 9. In cross-examination, he has stated that the certificate was filled by his clerk. There is no endorsement on the certificate that the same was filled at his instance. No FSL form was produced before him by the police for comparison of police seals affixed at the time of sealing the samples. 9. PW-6 Pawan Kumar Abrol, Scientific Officer, FSL, Jammu has stated that on 10.02.2014 he received two sealed packets, forwarded by the Dy.S.P HQ, Kathua through SI Varinder Singh, Police Station, Kathua in connection with FIR No. 47/2014. The packets/exhibits were found sealed and reached him with 7 and 5 seals intact. The above seals were opened and the contents of the exhibits were duly examined by him, remained under his immediate custody until the examination was completed. The exhibits were subjected to various chemical tests and chromatographic examination and then he issued the report. In cross-examination he stated that he has examined the exhibits on 05.04.2014 and they were received by him on 12.03.2014 and it were received in FSL on 10.02.2014. He neither remembers the facsimile of seal impression nor he has mentioned in his report. No FSL form was sent to him by the Police for comparison of the seal impression. Remnants were returned to the Investigating Agency after chemical examination but he has not mentioned so in his certificate. 10. PW-7 Arvind Sambyal has stated that in the month of February, 2014, he was posted as SHO of Police Station, Kathua and on 03.02.2014, ASI Daljit Singh sent a docket through constable Roshan Lal on the basis of which FIR No. 47/2014 for commission of offences under sections 8/21/22 of the NDPS Act was registered and he entrusted the investigation to SI Varinder Singh. In cross-examination, he has stated that place of occurrence is at a distance of one kilometre from the police station. 11. PW-8 Pardeep Gupta has stated that in the month of March, 2014, he was posted as SHO Police Station, Kathua and on 01.03.2014 he joined there. Initial investigation was conducted by SI Varinder Singh and SHO Arvind Sambyal. He prepared the challan on the basis of investigation already conducted and presented in the court. In cross-examination, he has stated that he did not do anything during investigation. 12. Initial investigation was conducted by SI Varinder Singh and SHO Arvind Sambyal. He prepared the challan on the basis of investigation already conducted and presented in the court. In cross-examination, he has stated that he did not do anything during investigation. 12. This is the whole of the prosecution evidence and after the examination of the accused-respondent under section 342 Cr.P.C, the learned trial court acquitted the respondent. 13. Mr. Ravinder Gupta, learned AAG appearing for the applicant, has vehemently argued that there is consistent evidence of all the witnesses that the respondent was apprehended by the Police Party and during search, 08 Corex bottles and 32 Parvon Spas capsules were recovered from the respondent. He has further argued that the learned trial court has brushed aside the recovery of contraband and has erroneously acquitted the respondent. 14. We have perused the judgment of the trial court and also gone through the statements of the witnesses meticulously. 15. There is evidence on record that at the place of alleged arrest of the respondent and recovery of the contraband , there were number of shops and also there was lot of traffic meaning thereby that there were number of independent witnesses available also on spot. Investigating Officer for best reasons known to him has not associated any independent witness in the investigation. All the witnesses those have been associated with the investigation are police personnel. Though the evidence of the police personnel is not to be rejected out rightly but nonetheless, when the independent witnesses were available on spot, but were not associated by the Investigating Officer, it causes a doubt about the truthfulness of the prosecution story. The another very important aspect of the case is that the witnesses have contradicted each other about the actual place of recovery and the manner in which it was effected. As per the PW-1, the accused was coming from the Bus Stand side and when he saw them, he tried to run away, but on the contrary, PW-2 has stated that they were patrolling on Bus Stand and when the accused reached Captain Chowk, he tried to run away but he was chased and apprehended. PW-3 has narrated a different story by stating that they had laid a naka at Captain Chowk and during checking, he saw the accused who was standing at a distance of 10-12ft. PW-3 has narrated a different story by stating that they had laid a naka at Captain Chowk and during checking, he saw the accused who was standing at a distance of 10-12ft. towards Bus Stand and also that the accused did not try to run away and was rather apprehended while he was standing. PW-4 has stated that accused came from the Parliband side and on seeing the police he started running but was apprehended. Thus, there are material contradictions between the different versions stated by the witnesses with regard to the actual place where the accused was apprehended and the manner in which he was apprehended. 16. More so, all the three witnesses, i.e. PW-1, PW-2 and PW- 3 have stated that the accused was holding a polythene packet in his hand in which the alleged contraband was found but PW-4 in cross-examination has stated that when the accused was apprehended, he had kept the material concealed under his shirt and PW-1 brought out the alleged material from underneath the shirt of the accused. PW-4 has contradicted all the other witnesses and stated that the respondent was taken to Police Station and seizure was also made in the Police Station. Another very important aspect of the case is that none of the witnesses have been able to name the recovered contraband. PW-1 does not say about the name of the capsules and also about the name of company, manufacturing date as well as the date of expiry of the capsules and also of the Corex bottles. PW-2 though states about the name of the capsules but he has failed to give exact name of the company, date of manufacture as well as expiry of the alleged contraband. PW-3 did not state either the number or the name of capsules and Corex bottles. PW-4 though states about the number of capsules but has not able to name the capsules and also has expressed ignorance about the date of manufacture and expiry of the alleged contraband. Another shortcoming in the prosecution case is that where was the recovered contraband kept till the same was sealed by the Investigating Officer. PW-4 though states about the number of capsules but has not able to name the capsules and also has expressed ignorance about the date of manufacture and expiry of the alleged contraband. Another shortcoming in the prosecution case is that where was the recovered contraband kept till the same was sealed by the Investigating Officer. PW-1 states that the bag containing the alleged contraband remained with the accused till the arrival of the Investigating Officer whereas PW-2 stated that the packet was taken by the ASI Daljit Singh and remained in his custody till the Investigating Officer came on spot. PW-3 has yet another story that the accused was searched by the Investigating Officer through PW-4 Hardev Singh. Thus, there are material contradictions with regard to place of recovery, the manner of apprehending the accused/respondent and also with regard to the making of the recovery. These were the major contradictions in the prosecution story and the prosecution case suffered further dent by non examination of the Investigating Officer and the prosecution has not given any reason for his non examination. It is worthwhile to mention here that the Investigating Officer is one of the most important witnesses in NDPS cases. Investigating Officer was under obligation to seal the seized contraband allegedly recovered from the respondent. PW-1 Daljit Singh is absolutely silent about the sealing of the samples. It is the prosecution story that the seal used for sealing the sample was kept on supardnama of Hardev Singh (PW-4) but Hardev Singh has never stated with regard to that and also never produced the seal that further creates a doubt about the sealing of the samples on spot. Investigating Officer is very important witness in the present facts and circumstances of the case and the non examination of the Investigating Officer has greatly prejudiced the respondent as he has been deprived of his right to cross-examine the Investigating Officer on the material contradictions noted above in the prosecution case. 17. In the NDPS cases, after the recovery it is also duty of the Investigating Officer to ensure that after the recovery of contraband is made and the samples are taken, the samples are kept in proper custody so as to negate any chance of tampering with the evidence. 17. In the NDPS cases, after the recovery it is also duty of the Investigating Officer to ensure that after the recovery of contraband is made and the samples are taken, the samples are kept in proper custody so as to negate any chance of tampering with the evidence. It is duty of the prosecution to establish that the sample were kept in safe custody from 03.02.2014 to 07.02.2014 when the samples were taken for resealing and then from 07.02.2014 to 10.02.2014 to rule out any tampering but there is nothing on record as to where the samples were kept during this period. The prosecution has not placed on record any malkhana register so as to demonstrate the safe custody of the samples. It further demolishes the case of the prosecution. 18. The trial court has recorded the findings those are based on meticulously 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 reasonable consistent with the evidence available on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse. 19. We have also perused the judgment passed by the trial court and we find that the findings recorded by the trial court can neither be termed as perverse, contrary to the evidence nor erroneous, therefore no case is made out by the applicant for grant of leave to file an appeal. In the result, the application is without any merit and is hereby dismissed.