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2021 DIGILAW 480 (JK)

State of J&K v. Gurjinder Singh

2021-09-16

DHIRAJ SINGH THAKUR, PUNEET GUPTA

body2021
JUDGMENT : Puneet Gupta-J: 1. The appellant-State has preferred appeal against judgment dated 19.04.2019, passed by the learned Principal Sessions Judge, Kathua whereby the respondent has been acquitted of the charges framed under Sections 8/21/22 NDPS Act on the ground that the same is against law and facts of the case; that there is sufficient material on record to convict the respondent; that the prosecution established the case against the respondent through oral as well as the documentary evidence and that the trial court has ignored important piece of evidence. 2. The case set up by the prosecution against the accused was that on 20.01.2016 the naka was laid by DySP (P) Mohd. Adrees Wani near Maggar Khad on National Highway and was accompanied by other police officials. At about 6.15 PM a Car No. JK02BF-2624, driven by the accused was stopped at the naka point during the course of checking of the vehicles and on the personal search of the accused, one white colour polythene envelope containing 9.05 gms of heroine was recovered from the pant of the accused. The written docket from the DySP resulted into registration of FIR No. 27/2016 with Police Station, Kathua under Sections 8/21/22 NDPS Act against the accused. On the completion of the investigation, the challan was produced against the accused for the aforesaid offences. The accused was charged for the commission of offence under Sections 8/21/22 NDPS Act. As the accused did not plead guilty to the charges framed against him, the prosecution was directed to produce evidence in support of its case. 3. The statement of the accused was also recorded under Section 342 Cr.P.C on the closure of prosecution evidence. The accused did not choose to produce any evidence in defense. 4. The prosecution produced number of witnesses in support of its case. It is profitable to take stock of the statements of the witnesses before proceeding further in the matter. 5. PW-1 Mohd. Idrees Wani, DySP has deposed that it took about two hours to complete the proceedings on spot and which relate to seizure and weighing of the contraband. The proceedings were completed by I.O while sitting on the side of the road. No civilian was present on spot at the naka point. 5. PW-1 Mohd. Idrees Wani, DySP has deposed that it took about two hours to complete the proceedings on spot and which relate to seizure and weighing of the contraband. The proceedings were completed by I.O while sitting on the side of the road. No civilian was present on spot at the naka point. PW-2 Sanjeevan Jyoti, S.I has deposed of intercepting of the car of the accused and recovery of 9.05 gms of charas which was kept in a white polythene envelop in the pant by the accused. The contraband was seized. Two separate parcels containing representative sample and remaining one were prepared and marked as A & B. The witness has further deposed that there are two hotels at some distance from the naka point and no one was called from the hotels. The civilians were also moving on the spot and called by the I.O. The FSL form no. 29 was not filled up on spot. The proceedings were conducted by I.O while sitting on the roadside. PW-3 Surinder Singh, Head Constable has also deposed of recovery of the contraband from the possession of the accused and taking of sample of the same. As per the witness no civilian witness was called on spot due to their non-availability. No FSL form was filled by the I.O. The proceedings were conducted by I.O on spot in the mobile phone due to darkness. PW-4 Rajesh Singh, SGCT is also witness to the contents of memo ExtP-1/1 pertaining to seizure of heroine, seizure of car of the accused ExtP-1/2 and superdnama of ring used for sealing of the packets ExtP-1/5 and kept on his superdnama which he has produced in the court. In cross-examination, the witness has stated that the seizure memo was prepared by the I.O on the bonnet of the official gypsy while switching on the internal light of the said vehicle and not on the road while sitting there. No civilian was called on spot by the I.O. PW-5 Ravinder Singh, Constable has also deposed about the recovery of contraband from the possession of the accused and has admitted the contents of memos prepared during investigation. No civil witness was called from the nearby hotels and factories. No civilian was moving on the road at that time. PW-9 Mohd. No civilian was called on spot by the I.O. PW-5 Ravinder Singh, Constable has also deposed about the recovery of contraband from the possession of the accused and has admitted the contents of memos prepared during investigation. No civil witness was called from the nearby hotels and factories. No civilian was moving on the road at that time. PW-9 Mohd. Shafi is I.O of the case and has stated about the investigation carried by him on spot and which includes seizure, sampling and sealing of the parcels containing the contraband. The parcels containing contraband were kept by him in the malkhana and entry made in this regard in register No. 19 of malkhana register marked as B. The sample was taken out from malkhana and produced for re-sealing by executive magistrate and thereafter was sent to FSL Jammu. In cross-examination he has stated that office of Forest Protection Force is situated at a distance of 100 ft. from the place wherefrom the accused was apprehended. The proceedings were conducted by him in a torch light. It is wrong to state that paper work was done while sitting on the road side and keeping the front light on of the gypsy. The form no. 29 was not filled by him. The sample was got re-sealed on 23.01.2016 and was sent to FSL for examination on 27.01.2016. There is no documentary material placed on record to show of the sample being taken for re-sealing on 23rd January, 2016 nor this fact is mentioned in malkhana register. There is no documentary record about the whereabouts of the said sample from 23 to 27 when the sample was sent to FSL. He cannot say as to where the said sample was kept for four days. The sample was wrapped in a white colour polythene envelope before its sealing and not in aluminum foil. He cannot say as to how the report of FSL expert reveals that the sample was received in the laboratory wrapped in an aluminum foil. 6. The perusal of the judgment reveals that the learned trial court has doubted the manner in which the occurrence is alleged to have taken place. The court has taken note of the statements of the prosecution witnesses and has found that the witnesses have contradicted in this respect. 6. The perusal of the judgment reveals that the learned trial court has doubted the manner in which the occurrence is alleged to have taken place. The court has taken note of the statements of the prosecution witnesses and has found that the witnesses have contradicted in this respect. PW-2 has stated that the proceedings were carried out by the I.O. while sitting on the road side but failed to speak of the source of light while conducting the investigation. PW-3 states of the proceedings have been conducted in the mobile phone light whereas PW-4 has stated that the proceedings were conducted by the I.O. on the bonnet of the official gypsy and the internal light of the vehicle was kept on during the proceedings. PW-5 has stated of the proceedings having been conducted by him on spot in the torch light. The trial court has found the aforesaid contradictions in the statements of the prosecution witnesses as not minor one. The Court does not find any reason to disturb this finding of the trial court and hold otherwise as there is no perversity in the same. 7. The trial court has also noted that the occurrence is alleged to have taken place at a distance of 100 ft from the office of Forest Protection Force which remains open throughout night and further the civil people were also moving on the nearby road but none had been called on spot during the course of investigation. The hotels are also there but no one was summoned from the hotels for associating with the investigation. PW-1 Mohd. Idrees Wani, DySP has deposed that no civilian was present on the spot though PW-2 Sanjeevan Jyoti, S.I has deposed of the availability of the independent witnesses at the place of occurrence. The trial court has disbelieved the version of the I.O. that independent witnesses could not be made part of the proceedings as they did not agree for the same. Again this Court finds that the conclusion drawn by the trial court after going through the prosecution evidence on this aspect of the matter is not farfetched or implausible. The reliance placed by the trial court on AIR 2017 SC 3751 titled Krishan Chand v. State of Himachal Pardesh is not misplaced and squarely applies to the present case. Again this Court finds that the conclusion drawn by the trial court after going through the prosecution evidence on this aspect of the matter is not farfetched or implausible. The reliance placed by the trial court on AIR 2017 SC 3751 titled Krishan Chand v. State of Himachal Pardesh is not misplaced and squarely applies to the present case. The Hon’ble Supreme Court in the above case took note of the fact that the police failed to associate the independent witnesses during recovery and acquitted the accused who was alleged to have been found in possession of 7 Kgs of Charas. 8. The trial court while acquitting the respondent-accused has given finding that the representative samples obtained during the course of investigation are not duly proved to have been kept in safe custody during the relevant period when it was supposed to be in safe custody. The Court has emphatically held that the Malkhana Register No. 19 does not mention of any entry of parcel of representative sample having been taken out for the purpose of resealing on 23.02.2016 or deposit of the same after resealing and again taking out of the parcel from malkhana for being sent to FSL, Jammu on 27.01.2016 for chemical analysis. The Court has also found that ASI Ajit Singh has not been examined as prosecution witness who is stated to have deposited the sample in the FSL Office, Jammu so as to prove the factum of the parcel of the sample having been taken by him from the malkahna to FSL, Jammu. The trial court has rightly held about the possibility of the tampering of the samples in view of the above fact and the fact that the I.O. has admitted in his cross-examination that he is not aware of the whereabouts of the parcel of representative sample from 23rd to 27th January and further that the parcel marked as ‘A’ was wrapped in polythene envelope and not in aluminum foil though PW-8 Pawan Kumar Abrol from FSL report has proved FSL report exhibited as Ext.P-9 and has stated that the sample was in aluminum foil. This contradiction has again raised genuine doubt in the mind of the trial court as to whether the alleged contraband seized from the accused was the one which was later on analyzed as part of investigation. This contradiction has again raised genuine doubt in the mind of the trial court as to whether the alleged contraband seized from the accused was the one which was later on analyzed as part of investigation. It is trite proposition of law that where the prosecution has failed to explain satisfactorily that the sample was duly in safe custody during the relevant period the tampering of sample collected during investigation cannot be ruled out and this is what has happened in the present case also. This court finds no reason to hold otherwise that the sample obtained during investigation was in fact the one which was sent for chemical analysis. The appellant has failed to convince this court that during the period from 23 to 27 the sample was in safe custody. The provisions of the NDPS Act are stringent and are required to be observed with utmost care so that no innocent is unnecessarily is prosecuted. 9. The learned Additional Advocate General appearing on behalf of the appellant has failed to convince the court of any perversity in the findings of the trial court which led to the acquittal of the accused and thus requiring interference by the Court in the impugned judgment. 10. In view of the discussion made above, it is held that the application filed for leave to appeal is without merit and is, accordingly, dismissed.