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2020 DIGILAW 645 (JK)

State of J&K v. Ghulam Mohammad Kumar

2020-12-01

RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.—The present acquittal appeal has been preferred against the judgment dated 20.02.2017 passed by the Principal Sessions Judge, Srinagar by virtue of which, the respondent-accused was acquitted of the charges under sections 8/15 of the NDPS Act. 2. Briefly stated the prosecution story is that during patrol duty on 06.08.2009, the police personnel of Police Station, Pantha Chowk caught the respondent red handed at the National Highway, Balhama and recovered three bags containing 32 Kgs of Bhukki (Poppy Straw) from his possession. Incharge Police Party sent a document to the Police Station and pursuant to that, FIR bearing No. 78/2009 for commission of offences under sections 8/15 of the NDPS Act was registered and investigation was conducted by the Sub Inspector, Arshid Hussain. After conducting the investigation, the final report under section 173 Cr.P.C. was submitted before the court. The respondent was charged for commission of offences under sections 8/15 of the NDPS Act and out of eight witnesses, the prosecution has examined four witnesses only, namely, Constable Avtar Singh, Fayaz Ahmad, Naib Tehsildar, Mohammad Bashir and Sub Inspector Arshid Hussain and the other witnesses have not been examined by the prosecution. It is necessary to have a brief resume of the prosecution evidence. 3. PW Constable Avtar Singh has stated that on 06.08.2009, he was posted in Police Station Panthachowk and on the said date, he along with other police personnel including Sub Inspector Arshid Hussain, were on patrol duty at Ayarpora Balhama. The accused was spotted by them on spot who was carrying three bags of nylon in his possession. On seeking the patrol party he tried to flee from the spot but was apprehended. During search of the bags, bhukki was found and the same was weighed on spot. Seizure memo was prepared on spot. His statement was recorded under section 164 Cr.P.C. which bears his signatures. He also identified the material shown to him in the court. In cross-examination, he stated that number of people were walking on the road as also the traffic was in full flow. He did not know whether Sub Inspector prepared any document, seizure memo and arrest memo on spot or not. He was sent by Sub Inspector Arshid Hussain to call any witness from the school that was nearest the place of occurrence. He did not know whether Sub Inspector prepared any document, seizure memo and arrest memo on spot or not. He was sent by Sub Inspector Arshid Hussain to call any witness from the school that was nearest the place of occurrence. He also did not know as to wherefrom the weighing scale was brought for weighing the seized substance. Contraband was not weighed in his presence. No civilian was called on spot to witness the occurrence. 4. PW Fayaz Ahmad Kumar has stated that the respondent was arrested on 06.08.2009 and arrest memo was prepared, which bears his signatures. 5. PW Mohammad Bashir Rather, Tehsildar has stated on 06.08.2009, he was posted as Tehsildar, Srinagar and was having additional charge of Naib Tehsildar Khanmoh. He received a communication from Police Station, Panthchowk for re-sealing the samples in FIR No. 78/2009 which is on the file. Vide the said communication, three bags were produced before him by the SHO Police Station Panthachowk. After opening the seals, Bhukki weighing 32 Kgs was found in the bags and 100 grams of sample from each bag was lifted and sealed in three separate pouches marked as ‘A, B and C’. The sealed bags were marked with a key and same was handed over to police concerned. He prepared a communication dated 08.08.2009 and addressed the same to Director FSL for testing the samples. The communication bears his signatures. The seized bags were shown to him in the court. During cross-examination, he has stated that the seized material was produced before him by SHO himself. He did not know much about the contraband. He has no information as to from whose possession the material was recovered. 6. PW Sub Inspector Arshid Hussian stated that he along with Police personnel were on patrolling duty in Balhama. In the meanwhile, one person was found standing on the road having three nylon bags in his possession. On seeing the Police, said person tried to ran away but was caught hold of, on spot and on search Bukki was found in his bags. Same was seized and the said person was arrested. He sent a docket regarding the occurrence to the SHO Police Station for registration of case. He also investigated the case. After completion of investigation conducted by him, case under sections 8/15 NDPS Act was found proved against the respondent. Same was seized and the said person was arrested. He sent a docket regarding the occurrence to the SHO Police Station for registration of case. He also investigated the case. After completion of investigation conducted by him, case under sections 8/15 NDPS Act was found proved against the respondent. The docket sent by him to the police station bears his signatures. He obtained the report from the FSL, which is on the file. He identified the seized material shown to him in the court. In cross-examination, he stated that there was no complaint against the respondent. The seized bags were produced before the Executive Magistrate but the respondent was not produced before him. At the time of preparing of seizure memos, civilian were also walking there but no civilian was cited as a witness. Statement of witnesses under section 161 Cr.P.C. were recorded in the Police Station. 7. Thus, this is the whole prosecution evidence and after the closure of the prosecution evidence, the statement of the respondent was recorded under section 342 Cr.P.C, in which he has denied the allegations and has stated that he has not committed any offence. The respondent did not choose to lead any evidence. The learned trial court after hearing both the sides vide judgment dated 20.02.2017 acquitted the respondent. 8. The present appeal has been preferred against the judgment impugned on the ground that the prosecution has successfully proved the case and the learned trial court has erroneously acquitted the respondent. It is further stated in the appeal that there are no major contradictions in the prosecution case but despite that the trial court has acquitted the respondent on minor contradictions, those are bound to occur in every case. 9. Mr. B. A. Dar, learned Senior AAG has vehemently argued that the prosecution has successfully proved its case and the witnesses examined by the prosecution have categorically proved that the contraband was recovered at Balhama from the respondent during search so he cannot be acquitted. 10. Heard and considered. 11. The FSL expert has not been examined to prove the FSL report as such, the contradiction in two FSL reports as one sample of seized contraband was found to be in powered form and the another has been stated to be in capsule form, has cause the dent in the prosecution case. 10. Heard and considered. 11. The FSL expert has not been examined to prove the FSL report as such, the contradiction in two FSL reports as one sample of seized contraband was found to be in powered form and the another has been stated to be in capsule form, has cause the dent in the prosecution case. It is also found that the despite presence of number of civilians on spot, the Investigating Officer has not made any effort to associate them in the investigation. No doubt the evidence of the Police witnesses cannot be brushed aside but when the independent witnesses were available on spot, their non association with the investigation by Investigating officer casts doubt about the prosecution story. There is no explanation on the part of the prosecution regarding the delay in sending the sample to the FSL as the same was sent to FSL on 08.09.2009. There is also no explanation as to why the other witnesses have not been examined by the prosecution. More so, no malkhana register has been placed on record to demonstrate that the contraband was kept in a safe custody in the Malkhana. There is also no evidence with regard to the seal as to whom it was handed over after the seizure was effected. Also, there is no compliance of section 57 of the NDPS Act that mandates whenever any person makes any arrest or seizure under the Act, he shall within a period of 48 hours after the seizure, makes a full report of arrest/seizure to his immediate superior officer, as such, this along with other infirmities entitle the respondent to be acquitted. 12. Mr. Dar, learned Sr. AAG has not been able to demonstrate before this Court that the opinion formed by the learned trial court is perverse and contrary to the facts led by the prosecution. No doubt the powers of the appellate court in appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in the place of that of the trial court. No doubt the powers of the appellate court in appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusion there from, then only the appellate court can interfere with the order of acquittal. 13. For all what has been discussed above, the trial court has rightly acquitted the respondent. I have also perused the judgment passed by the trial court and I find that the findings recorded by the trial court can neither be termed as perverse, contrary to the evidence nor erroneous. Therefore, no case for interference is made out. In the result, this appeal being without any merit is hereby dismissed.