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2022 DIGILAW 143 (JK)

State v. Akhter Hussain

2022-03-31

MOHD.AKRAM CHOWDHARY, SANJEEV KUMAR

body2022
JUDGEMENT/ORDER : M.A. Chowdhary, J. 1. The appellant/State has filed a Criminal Acquittal Appeal against the judgment dated 08.02.2011 passed by the learned Additional Sessions Judge, Doda (for short 'the Trial Court') in case titled "State vs. Akhter Hussain" in File No. 63/Spl. Challan, arising out of FIR No. 109/2006 registered at Police Station, Doda for the commission of offence punishable under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). 2. Respondent-Akhter Hussain (hereinafter 'accused') had been charge sheeted for the commission of offence punishable U/S 8/20 NDPS Act vide order dated 09.10.2006 by the Trial Court with the accusation that on 19.07.2006 he had handed over a nylon bag containing 4kg Charas (cannabis) concealed in maize cob sheaths under (karram) vegetables to a simpleton labourer Gani S/o Ramzan and his old servant Bashir Ahmed, who transported the same in an Auto to his house, however, the bag containing the cannabis was seized by the police at Nehru Chowk, Doda and in FSL test, the seized material was found to be Charas. Pleading innocence, the respondent denied the charge and claimed trial. 3. Prosecution in order to prove its case and to bring home the charge against the accused, examined almost all the witnesses cited in the charge sheet. 4. Before adverting to the grounds of challenge urged by the learned counsel for the appellant to find fault with the judgment impugned, a brief reference to the prosecution case, as was put up before the Trial Court, would be worthwhile. 5. A police party from Police Station, Doda comprising of constables Mohd. Iqbal and Basharat deployed on patrolling duty on 19.07.2006 produced one Gani S/o Ramzan Mochi with a nylon bag containing vegetables and a polythene bag containing cannabis wrapped in maize cob sheaths and stated that they had found him at Nehru Chowk and during search of his bag, cannabis was found; that on enquiry, the said Gani disclosed that the vegetables bag had been handed over to him by one Akhter Hussain resident of Dak Mohalla, Doda, to carry it to his home against a labour charges of Rs. 10/-. 6. On receipt of this report, a case was registered vide FIR No. 109/2006 U/S 8/20 NDPS Act at Police Station, Doda. 10/-. 6. On receipt of this report, a case was registered vide FIR No. 109/2006 U/S 8/20 NDPS Act at Police Station, Doda. Police after investigation of the case and chemical analysis of the sample of the seized material concluded that accused Akhter Hussain had committed an offence U/S 8/20 NDPS Act and laid the charge sheet, against him. Accused was charge-sheeted by the Trial Court vide order dated 09.06.2006 for the commission of offence punishable U/S 20 r/w Section 8 of the NDPS Act, who pleading innocence, denied the charge and claimed trial. 7. After recording the statements of the prosecution witnesses, the Trial Court examined the appellant in terms of Section 342 of J&K Cr.P.C. to seek explanation of the incriminating material. Accused pleading false implication examined two defence witnesses and on conclusion of the trial, the matter was considered by the learned Trial Court. Having regard to the evidence on record, it was concluded that the prosecution had failed to prove its case beyond reasonable doubt; that the accused was entitled to benefit of doubt and consequently, he was acquitted of the charge vide impugned judgment. 8. It is this judgment which has been assailed by the appellant-State in this appeal inter alia on the grounds that the judgment impugned is against the facts and law; that the Trial Court has not appreciated the evidence adduced at the time of trial in right perspective; and that on the basis of oral and documentary evidence produced at the time of trial, the prosecution has proved the charge of the commission of offence against the accused. 9. Having heard learned counsel for the appellant and on perusal of the record meticulously, we are of the view that having regard to the nature of evidence that has been brought on record by the prosecution, the Trial Court had no option, but to dismiss the challan and acquit the accused of the charge. 10. The prosecution case is that a bag containing narcotic was allegedly being carried out by PW-6 Gani Mochi at the relevant time, which had been handed over to him as a labourer by the accused at Bharat Road under the garb of vegetables to shift the same to his house situated at Dak Mohalla, Doda. 10. The prosecution case is that a bag containing narcotic was allegedly being carried out by PW-6 Gani Mochi at the relevant time, which had been handed over to him as a labourer by the accused at Bharat Road under the garb of vegetables to shift the same to his house situated at Dak Mohalla, Doda. In order to prove this fact, the prosecution had examined and relied upon the evidence of prosecution witnesses PW-5 Imtiaz Ahmed Malik, PW-6 Gani Mochi, PW-8 Bashir Ahmed Gujjar and PW-9 Bashir Ahmed. PW-6 who is the star witness and from whom the seized narcotic had been recovered stated that he had been given the seized material by the accused at Bharat Road to be shifted in an Auto driven by Bashir Ahmed. PW-6 during examination in the Court admitted that he had been handed over the vegetables bag by the accused but PW-8 has not supported him, who stated that the person who had handed over the bag to him was not known to him who was fat and not supporting beard. PW-8 is thus not certain as to who was the person who had given bag to PW-6 in his presence casting a doubt with regard to the identity of the accused. In other words, PW-8 could not identify the accused-respondent in the court, therefore, the fact that the bag had been handed over by the respondent to PW-6 has not been proved. PW-9 who was also cited as witness to this fact also denied with regard to identity of the accused-respondent. PW-9 stated that there were two persons who had stopped his Auto to shift the bag of vegetables to Nehru Chowk; PW-9 has also thus not supported this fact that the vegetables bag was handed over to PW-6 by the accused herein. 11. PW-5 had developed the chance finger prints found on the polythene bag containing contraband who stated that he had taken the impression from finger prints of the accused; PW-12 had examined the chance finger prints i.e. developed chance finger prints with the admitted specimen impression of accused-respondent-Akhter Hussain and found them identical with the specimen right thumb impression of the accused. These chance finger prints after having been developed were stated to be sealed with specimen seal entrusted to PW-2 in presence of PW-3, but PW-2 while turning hostile to the prosecution during trial deposed that after sealing the articles, specimen seal remained with SHO, who was I.O. of the case. Not to speak of PW-2, even PW-3 during cross-examination had stated that after sealing the articles the specimen seal was lying at the Police Station, so much so, PW-3 pleaded his ignorance regarding entrustment of the specimen seal, therefore, in view of the above possibility of tampering with the chance finger prints could not be ruled out. 12. PWs 6, 8 and 9 also materially contradicted each other PW-6 had deposed that he was at Bharat Road and accused was loading the vegetables and asked him to take the vegetables to his house, whereas PW-8 stated that after having unloaded some vegetables from an Auto at Nagri, he had returned back and reached Bharat Road where he had seen two persons standing who asked him to take vegetables to Nehru Chowk and loaded a bag in his Auto. One of them was a labourer, who sat by the side of the bag. So far as PW-9 is concerned, he has deposed that he had loaded an Auto of his bother-in-law i.e., PW-8 and on the way they had met a labourer along with two other persons who were standing there. These contradictory statements of PWs 6, 8 and 9 create doubt in the prosecution story. The lone statement of PW-6 that the bag had been handed over by the respondent/accused under the garb of vegetables was rightly not accepted by the Trial Court as gospel truth unless and until the same was supported by other evidence on record. 13. Another factor of the case is with regard to safety of the sample from such of the seizure till it reaches the FSL. The prosecution is obligated to prove this fact of safe custody to rule out any possibility of tampering with the sample. The prosecution could have produced the entire link evidence. 13. Another factor of the case is with regard to safety of the sample from such of the seizure till it reaches the FSL. The prosecution is obligated to prove this fact of safe custody to rule out any possibility of tampering with the sample. The prosecution could have produced the entire link evidence. PW-13 I.O. of the case stated that till re-sealing the seized sample as well as the contraband had remained under custody of Munshi of the concerned police station and after re-sealing the same was again deposited with the same official, however, as per record, the sample was sealed by PW-13 on the day of occurrence i.e. 19.07.2006 and the same was re-sealed on 20.07.2006 through PW-10, Executive Magistrate, Doda. The sample of the alleged contraband was, however, deposited with FSL, Jammu on 11.08.2006 by HC-Anchal Singh. Prosecution during trial could not explain this inordinate delay of sending the sample to FSL. As per record the seized sample had been handed over to HC-Anchal Singh on 07.08.2006, whereas he had handed over the same in FSL, Jammu on 11.08.2006 and there is nothing on record as to why he had kept the same with him for so many days. HC-Anchal Singh, who could have explained the delay, was chosen not to be examined by the prosecution as he was not cited as witness. The prosecution has, thus, failed to prove the links in the chain to rule out the possibility that the sample was not tampered by any body till its reached the chemical examiner. PW-13 had stated that the sealing ring after sealing the sample has been entrusted to PW-Bhagat Ram, but Bhagat Ram who as stated earlier had turned hostile to the prosecution stating categorically that the sealing ring had been kept by I.O. with himself. PW-Mohd. Iqbal had stated that the ring was lying in the police station itself, after its use. 14. PW-11 Rohit Koul and PW-12 S.L. Bhat forensic experts from FSL, Jammu have been examined, who were to prove that sample taken out of the seizure was cannabis and that the finger prints found on the packet were that of the accused. PW-Mohd. Iqbal had stated that the ring was lying in the police station itself, after its use. 14. PW-11 Rohit Koul and PW-12 S.L. Bhat forensic experts from FSL, Jammu have been examined, who were to prove that sample taken out of the seizure was cannabis and that the finger prints found on the packet were that of the accused. So far as the statement of PW-11 Rohit Koul is concerned, he has proved that sample contained cannabis, however, as already noted in the preceding para, the sample for its inordinate delay in reaching the FSL has not been proved, with regard to its safety during the period it was made and sent to FSL. PW-12 S.L. Bhat, who had to certify that the finger prints taken from seized bag and that of the accused were the same, however, stated that he had examined the question and admitted prints with naked eyes with the help of magnifying glasses and there may be possibility of some mistake also. Therefore, there is no conclusive evidence with regard to the finger prints. The witnesses PW-1 Doulat Ram and PW-2 Bhagat Ram who had been cited as witnesses to the weighing of the seized material had turned hostile and did not support the prosecution case. 15. The Trial Court has considered the case and appreciated the evidence brought on record by the prosecution in right perspective and reached to a conclusion that the prosecution had failed to prove its case beyond reasonable doubt. 16. Having regard to the evidence that has come on record and reasons given by the Trial Court, we do not find it a fit case to interfere with the well-reasoned judgment of acquittal passed by the Trial Court. Otherwise also, it is well settled in law that Appellate Court while hearing an acquittal appeal can re-appreciate the evidence, however, the view taken by the Trial Court is also a reasonable view on the evidence on record and the findings recorded by the Trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. Trial Court has appreciated the evidence in proper perspective holding that prosecution has failed to prove the case beyond reasonable doubt. 17. For the foregoing reasons and discussion made hereinabove, this appeal is found to be without any merit and substance and is liable to be dismissed. 18. Appeal is, thus, dismissed. Trial Court has appreciated the evidence in proper perspective holding that prosecution has failed to prove the case beyond reasonable doubt. 17. For the foregoing reasons and discussion made hereinabove, this appeal is found to be without any merit and substance and is liable to be dismissed. 18. Appeal is, thus, dismissed. Impugned judgment is upheld. 19. Record of the Trial Court be sent back, along with a copy of this judgment.