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2021 DIGILAW 149 (JK)

State through Police Station Pulwama v. Ahad Dar

2021-04-02

RAJNESH OSWAL

body2021
Judgment Rajnesh Oswal, J.-The present appeal has been filed against the judgment dated 07.08.2018 passed by the Court of learned Principal Sessions Judge Pulwama (hereinafter referred to as the trial court) in case titled “State through SHO Police Station Pulwama versus Ahad Dar and another” by virtue of which respondents have been acquitted of the charges framed against them for commission of offences under Sections 8/20 and 25 NDPS Act in FIR No.283/2007 of Police Station Pulwama. 2. The present appeal has been filed by the appellant on the ground that the judgment impugned is against the law and facts of the case and prosecution had proved the case beyond any doubt but still the learned trial court has acquitted the respondents. It is further stated that the learned trial court had doubted seizure of the charas from the respondents though the recovery and seizure stood proved by the witnesses produced during the trial. The learned trial court has discarded the entire police evidence and seems to have been influenced by the minor contradictions in the depositions of the witnesses and also that the learned trial court has fallen into error of law by holding that the non-examination of the Investigating Officer casts doubt on the prosecution case as it is a settled principal of law that non-examination of IO is not fatal to the prosecution case. 3. The brief facts necessary for the consideration of the present appeal is that FIR No. 283/2007 under Section 8/20 and 25 NDPS Act was registered at Police Station Pulwama on 16th July, 2007 after reliable information was received that at Main Chowk Pulwama accused namely Ahad Dar and Mst. Sara residents of Ladhermur Pulwama were carrying contraband. The investigation was started and during the course of investigation respondents were apprehended and on being enquired they disclosed their names as Abdul Ahad Dar and Mst. Sara and in presence of Executive Magistrate, the search was effected and on personal search from the possession of respondent No.1 a polythene envelope carrying charas was recovered and on personal search of respondent No.2 one more polythene bag was recovered. The contraband was weighed, samples were also extracted and thereafter sent to FSL. Sara and in presence of Executive Magistrate, the search was effected and on personal search from the possession of respondent No.1 a polythene envelope carrying charas was recovered and on personal search of respondent No.2 one more polythene bag was recovered. The contraband was weighed, samples were also extracted and thereafter sent to FSL. During the course of investigation respondent No.2 disclosed that respondent No.1 asked her to carry the consignment to Pulwama and she was to get Rs.400/- (Rupees Four Hundred only) and it was due to this reason that the respondent no.2 agreed to carry the bag. The prosecution has examined as many as seven witnesses and in order to properly appraise the contentions of the appellant it is necessary to have a brief resume of depositions made by them. 4. PW Ali Mohammad Najar, Executive Magistrate stated that on 25/07/2007 he was posted as Naib Tehsildar Pulwama and he was sitting at his residential house. SHO Police Station Pulwama requested him on phone at about 9:00 in the morning to come on spot as they have seized charas. He proceeded to the scene of occurrence near Shaheed Park Pulwama. On spot he saw one man and a woman besides SI Gh. Rasool and lady constable. Police told him that the respondents were carrying charas. He stated that charas was being carried by the respondents in their hands. On his instructions police opened the envelope, one envelope that was in the hand of Ahad Dar Charas was found having corn peels in it and the envelope that the woman respondent No. 2 was carrying, also contained charas wrapped in corn peels. Police had already brought the weighing scale and weighed the contraband in his presence. Police prepared the memos and the memos bear his signatures. The Contents of which are true and correct. On spot no further proceedings were conducted in his presence. The property was sealed and thereafter he went to his office. On the same date police produced consignment. Samples were taken and sealed in the office of the witness. He wrote a letter to FSL for opinion. Remnants of the sample were again received and handed over to the police. He identified the accused and his statement was recorded by the IO. On the same date police produced consignment. Samples were taken and sealed in the office of the witness. He wrote a letter to FSL for opinion. Remnants of the sample were again received and handed over to the police. He identified the accused and his statement was recorded by the IO. In cross examination he stated that he cannot say as to when he was requested to come on spot, FIR was registered at that point of time or not. Police told the witness that they have seized the charas. He has no personal knowledge as to what were the circumstances in which the charas was recovered from the accused persons. When he came on the spot people were moving here and there and shops were also open. If the police had asked the civilians to associate with the process, they would have done it. He did not request any civilian to associate with the process. He did not enquire on spot from the shopkeepers, drivers and common people whether seized property was recovered from the person of the accused. When he came on spot police had already brought the weighing scale. He does not remember as to what sort of weights were used for weighing the contraband. In his presence no memo was prepared in relation to weighing scale and weights. The letter that was written to FSL by him is not present in the records. He does not know when sample was sent to FSL by the police. He does not remember in whose custody the seal used on the seizure memo and samples remained. He did not seek any option from the accused. When he reached on spot the police personnel were already there. No search of the accused was conducted. 5. PW Manzoor Ahmad Mir stated that on 16/07/2007 he was posted in Pulwama and he identifies the accused. Occurrence is of the month of July 2007. At that point of time he was in the escort of SHO. Munshi of the police station told Aijaz Ahmad, Shabir Ahmad and him to proceed to bazaar along with Gh. Rasool. On reaching Pulwama bazaar, SI noticed accused moving in suspicious circumstances. SI called the Magistrate and asked him and other constables to take the custody of the accused. At that point of time he was in the escort of SHO. Munshi of the police station told Aijaz Ahmad, Shabir Ahmad and him to proceed to bazaar along with Gh. Rasool. On reaching Pulwama bazaar, SI noticed accused moving in suspicious circumstances. SI called the Magistrate and asked him and other constables to take the custody of the accused. On arrival of the Magistrate, personal search of the accused was conducted and from their possession two envelopes were recovered. SI told him to get the weighing scale. He brought a weighing scale alone with weights. Property was weighed. Perhaps one envelope was having 03 kgs and 300 gms and another envelope was having 01 kgs and 700 gms. When SI called the Magistrate, exactly at the same time the docket was sent to police station. Property was seized on spot. In cross examination stated that he did not take docket to the police station. It is correct that after search docket was sent to police station and thereafter FIR was registered. It is correct that respondents were searched in front of the shop of Moma Check. People were moving on the roads besides vehicles were also plying. He did not personally search the accused. He does not know whether Investigating Officer called any civilian to remain as a witness to proceedings or not. He does not know whether Tehsildar gave any paper to the respondents. He at the time of occurrence was overseeing the security of the party, as such he could not concentrate fully on the search. The shopkeeper from whom the weighing scale was taken, has not been cited as a witness and also he does not remember his name. He was not knowing before leaving, the place that they have to go for investigation of FIR. In his presence no sample was taken on spot. Property was sealed on spot. Seal was under the impression of ring. 6. PW Yaseen constable stated that on 16/07/2007 he was posted in Pulwamá and during routine patrol under the supervision of SI Gh. Rasool, Ghulam Rasool arrested one man and woman. They were searched and from their possession three envelops were recovered. He was at a distance from the spot and when he came closer by that time search was already over. One lady constable Dilshada was with us. Seizure memo was prepared on spot. Rasool, Ghulam Rasool arrested one man and woman. They were searched and from their possession three envelops were recovered. He was at a distance from the spot and when he came closer by that time search was already over. One lady constable Dilshada was with us. Seizure memo was prepared on spot. He identifies his signatures on the same. The seized property was wrapped in corn peels. In cross examination stated that in his presence no charas was recovered from the person of the accused No.1. When he reached the scene of occurrence, the search was already over. He has no personal knowledge regarding recovery. However, SI told him that charas was recovered from both the accused. In his presence the contraband was not weighed. Number of people were there at that point of time and they were witnessing the proceedings. In his presence no sample was taken on spot from the seized property. He cannot say whether Sub Inspector had prior information about the respondents carrying the contraband or not. In his presence, Sub-Inspector did not affect the search of the respondents in presence of the Magistrate or gazetted officer. He left the police station at 7:00 in the morning. He has no knowledge as to how much quantity of charas was recovered from each accused. 7. PW Dilshada stated that she knows the accused. On 16/07/2007 she was posted in police station Pulwama. Sub-Inspector Gh. Rasool told her that they have received some information and she was asked to board the gypsy. As per the instructions, she boarded the gypsy and reached Pulwama Chowk. In gypsy besides her, Aijaz Ahmad, Manzoor Ahmad and Shabir Ahmad were also travelling. Sub-Inspector Gh. Rasool saw the accused and stated that they are to be searched. Accused were told by SI Gh. Rasool whether they needed to be searched by the police or Magistrate. Accused told the SI that they want to be searched in presence of the Magistrate. Memo was prepared. Thumb impressions of the accused were obtained. Contents of option memo are true and correct. However she did not sign on them. Thereafter SI told constable Manzoor to ask the Magistrate to come. Envelope was recovered from Ahad Dar in which charas was wrapped in corn peels. Memo was prepared. Thumb impressions of the accused were obtained. Contents of option memo are true and correct. However she did not sign on them. Thereafter SI told constable Manzoor to ask the Magistrate to come. Envelope was recovered from Ahad Dar in which charas was wrapped in corn peels. She searched Mst Sara and from her possession one polythene envelope was recovered that contained charas wrapped in corn peels weighing 01 KG and 700 gms. Both recovery memos were prepared and they are correct. Charas was weighed in presence of Magistrate. She took accused Sara to police station. She was shown the seized property in the Court. In cross-examination stated that when they reached the Chowk, time was 9:30 in the morning. Investigating Officer and other constables went in the same gypsy. Gypsy was stopped near the textile shop and the accused were arrested. When Investigating Officer called Ahad Dar, she alighted from the gypsy. Search of both the accused were carried out simultaneously. Sara had concealed envelope under her pheran. Seized property was weighed in her presence. Weighing Scale was brought from a shopkeeper and Manzoor Ahmad constable brought the weighing scale from the shopkeeper. All the memos were signed by her on spot. She did not sign any paper in the police station. She further stated that they reached the scene of occurrence at 10:30 AM. She cannot say who had reliable information about the occurrence. She was told by the Investigating Officer about the occurrence in the gypsy. Gh. Rasool SI conducted the personal search of the accused Ahad Dar and she cannot say as to from which part of the body of accused No.1 recovery was made, as she was fully concentrating on accused No.2. Before obtaining option, Investigating Officer asked the accused whether they are educated. Accused told Investigating Officer that they would put the thumb impressions on the option memo. Option memo was read over and explained to the accused. Since accused were illiterate they could not read the option memo. Investigating Officer did not call any civilian on spot. She cannot say whether option memo was written by Investigating Officer since she was not conversant with the signature of the IO. Who wrote the option memo she does not know. Since accused were illiterate they could not read the option memo. Investigating Officer did not call any civilian on spot. She cannot say whether option memo was written by Investigating Officer since she was not conversant with the signature of the IO. Who wrote the option memo she does not know. Magistrate came on spot within 5-6 minutes and talked to Ahad Dar and Sara but what transpired in between them she has no knowledge. She was at a distance from the Magistrate. She does not know whether samples were sealed. Khaki sahib had written the names of the accused on the memos and he did not prepare any paper. 8. PW Aijaz Ahmad stated that on 16/07/2007 under the supervision of Sub-Inspector Gh. Rasool Khaki, Constable Shabir Ahmed, Muhammad Maqbool, Dilshada left for patrolling and as soon as we reached the main chowk, we found the accused in suspicious circumstances. Sub-Inspector told the accused that he wanted to search them and asked them as to whether they wanted their search to be conducted in presence of a senior officer and the option was sought from the accused in writing. He took a docket to Tehsildar. Tehsildar came along with him to the place of occurrence. Accused Ahad Dar was searched by Shabir Ahmad. Mst Sara was searched by Dilshada. During the search charas was recovered from them and was seized and sealed on spot. From the possession of Ahad Dar 3 kgs 700 gms charas was recovered and from the possession of Sara 01 kg and 800 gms was recovered. Thereafter, we went to the police station along with accused. He identified the seized property in the court. In cross examination stated that we left at 9:00 in the morning. On spot number of people were moving to and fro. Shops were open. Perhaps superior officers had information about the occurrence. However, he had no knowledge. He does not know whether FIR was already registered or not. FIR was not lodged since we had not seized the charas. SI Gh. Rasool had come to the main chowk Pulwama. However he cannot say whether he came to Pulwama in connection with the investigation of the case. We did not take any vehicle from the police station and we walked. When we reached the scene of occurrence, accused was standing there along with other people. SI Gh. Rasool had come to the main chowk Pulwama. However he cannot say whether he came to Pulwama in connection with the investigation of the case. We did not take any vehicle from the police station and we walked. When we reached the scene of occurrence, accused was standing there along with other people. He was given docket to call the Tehsildar but that docket is not on the file. He reached Tehsil office at 9:30 AM. SI Gh. Rasool had already called Tehsildar. When he returned back after informing the Tehsildar, the investigation was complete and recovery was effected. He does not have knowledge as to whether any civilian was associated with the process of investigation. He saw recovery from the accused himself. Till the Tehsildar came on spot accused were not searched and till search he did not know that the accused were carrying charas. He cannot disclose the name of the shopkeeper who was asked to give weighing scale. It took one hour to complete the proceedings. During investigation no superior officer was present on spot. SHO also did not come on spot and he also did not prepare any paper on spot. 9. PW Muhammad Maqbool Mir stated that on 16/07/2007 he was posted in Pulwama. During patrolling in the main chowk under the supervision of SI Gh. Rasool Khaki, Sub-Inspector arrested one man and woman. Arrested accused were searched on spot. SI recovered the charas from the person of the accused. He was watching the proceedings from a distance and when he reached near the scene of occurrence by that time search was complete. We were accompanied by one lady constable Dilshada. He cannot say how much charas was recovered. He identifies his signature on EXPW2 and the contents of the same are true and correct. In cross examination he stated that in his presence nothing was recovered from the possession of the accused No.1. He has no personal knowledge about the recovery. However, SI told him that charas was recovered from the possession of the accused. In his presence nothing was weighed. When charas was recovered, there was great hustle and bustle in the market. No sample was taken in presence of the witness. He cannot say whether SI had prior information that accused were carrying the charras. However, SI told him that charas was recovered from the possession of the accused. In his presence nothing was weighed. When charas was recovered, there was great hustle and bustle in the market. No sample was taken in presence of the witness. He cannot say whether SI had prior information that accused were carrying the charras. In presence of the witness Sub-Inspector did not conduct the search of the accused before the Magistrate or gazetted officer. Sub-Inspector did not ask any pedestrian to sign the seizure memo. We left the police station at 7:00 AM in the morning. So there was no question of alighting from the vehicle. 10. PW Shabir Ahmad stated that on 16/07/2007 he was posted in Police Station Pulwama. SHO had a reliable information. Police party under the supervision of Sub-Inspector left towards main chowk. We saw a man and a woman in the market. SI Gh. Rasool asked the accused that they are required to be searched. Both the accused stated that they wanted to be searched in presence of the Magistrate. Magistrate was called on phone and docket was also sent. Accused had already disclosed their names to the SI. Accused No.1 was searched by one constable and accused No.2 was searched by Dilshada. Search was conducted in presence of the Magistrate. From the accused No.1, charas weighing 3 kgs was recovered and from the possession of accused No. 2 same quantity was recovered. Seizure memo was prepared and he identified his signature on the same. In cross examination stated that he has no personal knowledge about the information which SHO had received about the occurrence. However, he was told to accompany the party. Investigating Officer Gh. Rasool was present on spot. In the main chowk accused were arrested near taxi stand. As per the instructions of SI we laid a cordon around the accused. In the chowk many people had assembled. He does not remember as to whether accused were wearing pheran on that date or not. He has no knowledge as to what transpired between the accused and the Magistrate. Charas was weighed on spot with the weighing scale that was brought from a shopkeeper. He did not count the seized property that was wrapped in corn peels. Charas was weighed along-with the envelopes. Seizure memo was signed by Dilshada and Manzoor in his presence. 11. He has no knowledge as to what transpired between the accused and the Magistrate. Charas was weighed on spot with the weighing scale that was brought from a shopkeeper. He did not count the seized property that was wrapped in corn peels. Charas was weighed along-with the envelopes. Seizure memo was signed by Dilshada and Manzoor in his presence. 11. This is the whole of prosecution evidence and after the closure of prosecution evidence, the accused were examined under Section 342 Cr.P.C. and they denied that any charas was recovered from them. Accused had examined one Mohammad Shaban Sheikh and Ghulam Ahmad Sheikh in defence. Both of them have stated that the accused are gentle person and on that date they were travelling in a sumo and went towards Pulwama and on reaching there, they were intercepted by police and taken to Police Station. 12. Mr. Mir Suhail, AAG has vehemently argued that the recovery of the contraband from both the accused stand duly proved by the police officials and as such the learned trial has wrongly acquitted the accused. He further argued that the minor contradictions have been given much weight by the trial court, as such judgment is not sustainable in the eyes of law. 13. Heard and perused the record. 14. The prosecution story is that that the accused were given an option of search in terms of Section 50 of NDPS Act in the presence of Magistrate. The Magistrate has categorically denied in his statement that any search option was given to the accused in his presence and rather he has stated that when he reached on the place of occurrence recovery was already effected and he has gone to the extent of saying that he cannot say under what circumstances recovery was effected from the person of the accused. PW Aijaz Ahmed stated that when he came back from Tehsil, recovery had already been affected. PW Manzoor Ahmed Mir has stated that after search, docket was sent and then FIR was registered, that runs contrary to the prosecution case. PW Yaseen, who is witness to the seizure memo has stated that three envelopes were recovered from accused that is also contrary to the prosecution case and he has further stated that no charas was recovered. PW Mohd Maqbool stated that nothing was recovered from accused No:1 and has no personal knowledge of recovery. PW Yaseen, who is witness to the seizure memo has stated that three envelopes were recovered from accused that is also contrary to the prosecution case and he has further stated that no charas was recovered. PW Mohd Maqbool stated that nothing was recovered from accused No:1 and has no personal knowledge of recovery. PW Shabir Ahmed has stated altogether different story by narrating 3 Kgs. Charas was recovered from both the accused. Thus there are material contradictions in the statement of the witnesses, those cause doubt about the recovery of the contraband from the accused. It is further evident that the samples were received by FSL on 27.07.2007 along-with letter dated 21.07.2007 sent through Ghulam Rasool Head Constable. The said person Ghulam Rasool is not figuring as the prosecution witness and also there is nothing on record to demonstrate that the samples as well as contraband recovered from the accused remained in whose custody from the date of recovery till the same were sent to FSL. Not only this, there is delay in sending samples to FSL. All these aspects were required to be explained by the Investigating Officer who is the most material witness in cases particularly in NDPS cases. More-so when the police was already having information with regard to the accused persons, there is nothing on record to demonstrate that such information was reduced into writing and was communicated to superior officers in terms of Section 57 of NDPS Act. 15. Appellant has not been able to convince 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 place of that of the trial court. It is only when the approach of the trial court in acquitting accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusion there from, the appellate court can interfere with the order of acquittal. 16. It is only when the approach of the trial court in acquitting accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusion there from, the appellate court can interfere with the order of acquittal. 16. I have also perused the judgment passed by the trial court and I find that the finding recorded by the trial court can neither be termed as perverse, contrary to the evidence nor erroneous, therefore no case is made out. In the result, this appeal is without any merit and is hereby dismissed.