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2021 DIGILAW 52 (JK)

State of J&K v. Tarsem Raj

2021-03-03

TASHI RABSTAN, VINOD CHATTERJI KOUL

body2021
JUDGMENT : Tashi Rabstan, J. 1. By way of this condonation application, the appellant is seeking to condone the delay of 113 days in filing the above titled Criminal Acquittal Appeal against the judgment dated 20.04.2016 delivered by the learned 1st Additional Sessions Court, Jammu (Special Court Under NDPS Act), whereby the prosecution case against the accused No. 1 Balwant Raj and the accused No. 3 Paramjeet Singh, due to their death during trial was abated and the accused Nos. 2 Tarsem Raj and 4 Uttam Singh were acquitted of the charge. Along with the application for condonation of delay, the appellant has also filed SLA No. 133/2016 seeking leave of the Court to file the appeal. 2. Prosecution case in brief as emerging out from the perusal of the record is that on 17.10.1995, SDPO Gandhi Nagar, Jammu sent a written dispatch from Peer Baba Bahu Rakh to the Police Station that on an information received on wireless from the In-charge Naka Party, HC Dharam Chand of Police Post Bagh-a-Bahu, who was deployed there along with constables Dwarka Dass and Tarsem Raj that one Balwant Raj alias Balwanta S/o Angrezoo Saryara R/o Kacha Talab Bahu Fort Jammu, had been apprehended, from whose possession two packets of opium had been recovered. He seized those packets and samples were drawn and sealed. Balwant Raj disclosed that he had purchased those opium packets from Tarsem Raj S/o Des Raj R/o Manda Jammu and Paramjeet Singh S/o Maan Singh R/o Gurha Bakshi Nagar, who had come to Bawa Basti Bahu Fort for the sale of the opium which was under their possession and punishable under sections 20 & 27 of NDPS Act were found to have been committed. The dispatch was sent for registration of the case and the investigation was assigned to SI Kamaljeet Singh. On receipt of this dispatch, a case was registered at P/S Bahu Fort Jammu vide FIR No. 253/1995 for the commission of offences punishable under sections 20/27 of NDPS Act. 3. The dispatch was sent for registration of the case and the investigation was assigned to SI Kamaljeet Singh. On receipt of this dispatch, a case was registered at P/S Bahu Fort Jammu vide FIR No. 253/1995 for the commission of offences punishable under sections 20/27 of NDPS Act. 3. Before dealing with the application for condonation of delay, we deem it appropriate to examine the judgment delivered by the learned 1st Additional Sessions Court, Jammu (Special Court Under NDPS Act) to find out as to whether or not any interference is warranted therewith, so that injustice may not occasion merely because of lapse on the part of the appellant-State in filing the appeal within the prescribed period of limitation. 4. The prosecution has examined as many as 18 witnesses. The Prosecution Witness Nos. 1 HC Dharam Chand, 2 Constable Tarsem Raj and 3 SGC Dwarka Dass were members of the Naka party deployed near Peer Baba Rakh Bahu from Police Post Bahu Fort on 17.10.1995 and they all had stated that accused No. 1 Balwant Raj was detained at Naka and opium was found in his possession, as such, In-charge Naka Party flashed a wireless message in this respect and that officer In-charge Police Post Bahu PW Kamaljeet Singh and SDPO Gandhi Nagar PW17 Hemant Kumar Lohia reached on spot after receiving massage and during search of the accused opium weighing 1.830 Kg was recovered from the detained Balwant Raj and that on his disclosure which was admittedly not recorded, accused no. 2 Tarsem Kumar and accused no. 3 Paramjeet Singh were arrested from Bagh-e-Bahu park on the same evening on his identification in presence of the prosecution witnesses 1 to 9 and 17 to 18. PW4 Ct. John Khunja, PW5 Ct. Thakur Dass and PW6 SGC Ahmed Din had accompanied PW18 SI Kamaljeet Singh, In-charge Police Post Bahu, whereas, PW7 Ct. Jameet Singh and PW9 Ct. Ashok Kumar had accompanied PW17 Hemant Kumar Lohia SDPO Gandhi Nagar and all of them stated that recoveries and seizures were made from accused Nos. 1 to 3 on the same evening in their presence and also at the instance of accused No. 4 Uttam Singh later on. Jameet Singh and PW9 Ct. Ashok Kumar had accompanied PW17 Hemant Kumar Lohia SDPO Gandhi Nagar and all of them stated that recoveries and seizures were made from accused Nos. 1 to 3 on the same evening in their presence and also at the instance of accused No. 4 Uttam Singh later on. PW12 M.K. Abrol stated that the seized Van had been seized by him as SHO, P/S Ramgarh on 19.10.1995 lying unclaimed vide seizure memo (EXPW-MK) and the same was further seized by Jammu police in this case on 20.10.1995. He, however, stated that nothing incriminating had been seized from Van when it was checked before its seizure. PWs13 Mohan Lal, 14 Janak Singh and 15 Mangat Ram Duggal are all the Executive Magistrates who have stated that they had re-sealed the sealed packets and issued certificates in this behalf and authorized FSL for chemical analysis of the samples. PW17 Hemant Kumar was SDPO Gandhi Nagar and in whose presence, accused were alleged to have been searched, recoveries were made and seizures were conducted. He, however, further could not say as to where accused Uttam Singh made disclosure, in his office or at Police Station. PW18 Kamaljeet Singh who had investigated the case has stated that on the search of all the accused at different places, opium was recovered and seized in presence of PW 17Hemant Kumar who was a Gazetted Officer after seeking option of search from the accused. However, there is nothing on record to suggest that any option as required by law was sought from any of the accused, disclosing them that they had right of being searched either in presence of Magistrate or a Gazetted Officer. 5. The Trial Court in the judgment has observed that the standard of proof should be equally higher in the case. It was incumbent upon the prosecution to prove that they had observed the mandatory provisions of Section 42 with regard to reducing into writing the information received by them, Section 50 with regard to providing option of search to the accused and Section 57 to inform the superior officers of the information reduced into writing in terms of Section 42 of NDPS Act, however, the prosecution in this case has failed to sufficiently prove these aspects of the case. 6. 6. The Trial Court further observed that almost all the prosecution witnesses from the police have stated that despite availability of the Independent witnesses at all the places of search and seizure no civilian was associated with these proceedings. PW18 Kamaljeet Singh though tried to justify that civilian witnesses were reluctant to give the statement, but failed to say as to what effort he had made in this behalf. He stated that it was legally prudent to cite only constables as witnesses to the seizures and supurdnamas. 7. From the statement of prosecution witnesses available on record it is revealed that the Investigating Officer had admitted that the seized packets of the contraband had been kept lying at Malkhana for 15-16 days and had failed to place on record the entries with regard to keeping the contraband in the malkhana or taking out from there including samples, so the apprehension of the samples being not tampered for such a long time cannot be ruled out as Magistrate has also stated that some of the seals did not tally with the impression of the seal. 8. Accused No. 2 Tarsem had examined Mohan Lal, Tilak Raj and Joginder Pal his neighbourers, as defence witnesses who have stated that accused Tarsem was arrested by the police from his home at Marh. With regard to accused No. 4 Uttam Singh, some of the witnesses who have been cited as eye witnesses have stated that he was found sitting near Tawi Lift Irrigation Pumping House situated at Bagh-e-Bahu, whereas prosecution case is that he had been arrested from Bus Stand, Jammu. Therefore, the disclosures, recoveries and seizures also become doubtful besides the option of search not being in consonance with the law. 9. The FSL Report was submitted and the same was placed on file but the prosecution has not examined the FSL Expert in the case who could be a witness to say that seized contraband was narcotic/psychotropic substance or not. Without examination of the Analyst and without giving opportunity to the accused to cross-examine, the report cannot be admitted into evidence with being proved. Thus, there being no evidence as to what was the seized substance, the case cannot be said to have been proved so as to record conviction. 10. Without examination of the Analyst and without giving opportunity to the accused to cross-examine, the report cannot be admitted into evidence with being proved. Thus, there being no evidence as to what was the seized substance, the case cannot be said to have been proved so as to record conviction. 10. It is well settled in law that this Court while hearing an acquittal 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 a reasonable view of the evidence on record and the findings recorded by the Trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. [See Ram Swaroop and others vs. State of Rajasthan, (2002) 13 SCC 134; Vijay Kumar vs. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 ]. 11. Viewed thus, we are in agreement with the observation made by the learned Trial Court that the prosecution has miserably failed to bring home the charge against the accused. As such, we are of the considered opinion that the acquittal of respondents is well-merited and needs no interference. 12. So far as the application seeking to condone the delay in filing the Criminal Acquittal Appeal is concerned, a perusal of the file reveals that there is 113 days delay in filing the appeal. The judgment impugned came to be delivered on 20.04.2016. In the application, the State has not mentioned as to when it had applied for obtaining certified copy of the judgment. It is revealed that sanction to file the appeal was given on 09.08.2016 and the appeal came to be filed only on 18.11.2016. The applicant has failed to give any cogent reason for this delay, let alone explain day-to-day delay in filing the appeal. Delay in filing appeal after the statutory period of limitation prescribed cannot be condoned as a matter of course. The party seeking condonation of delay was required to satisfy the Court that there was sufficient cause justifying condonation of delay. Merely saying that the delay was on account of procedural aspect, is not sufficient cause to condone the delay. The Hon'ble Supreme Court in SLP (Civil) Diary No(s). 19846/2020 titled as Union of India Vs. The party seeking condonation of delay was required to satisfy the Court that there was sufficient cause justifying condonation of delay. Merely saying that the delay was on account of procedural aspect, is not sufficient cause to condone the delay. The Hon'ble Supreme Court in SLP (Civil) Diary No(s). 19846/2020 titled as Union of India Vs. Central Tibetan Schools Admin & Ors., decided on 04.02.2021 while dismissing it on account of delay observed as under:- "We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake! The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No. 9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No. 22605/2020 decided on 11.01.2021]...." 13. The application, therefore, does not deserve to be allowed on its own merits. Accordingly, CONCR No. 125/2016 is dismissed. 14. Consequently, Criminal Acquittal Appeal along with SLA No. 133/2016 shall stand dismissed.