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2022 DIGILAW 528 (JK)

Union Territory of J&K v. Saleem Mohd.

2022-09-22

RAJESH SEKHRI, RAJNESH OSWAL

body2022
JUDGMENT : RAJNESH OSWAL, J. 1. This criminal acquittal appeal is directed against the judgment dated 30.10.2019, recorded by the court of the Principal Sessions Judge, Reasi (hereinafter to be referred as the trial court) in file No. 13/Sessions, titled State vs. Saleem Mohd. whereby the respondent has been acquitted of the charges for commission of offence under sections 8 and 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the Act) in FIR No. 57/2016 of Police Station, Reasi. 2. The judgment has been assailed on the ground that the learned trial court has not appreciated the evidence led by the prosecution in its right perspective during trial and has not rightly acquitted the respondent. 3. Facts as they emerge from the charge sheet are that on 18.04.2016, Police Patrolling Party headed by the SHO, Police Station, Reasi, during patrolling, apprehended the accused at Bhaga, when he on seeing the Police Party tried to run away from the spot, but was apprehended and on personal search, 250 grams charas hidden in corn cobs was recovered from his possession. A docket was sent for registration of FIR to the Police Station. Pursuant to docket, FIR bearing No. 57/2016 for commission of offences under section 8 and 20 of the Act was registered. Investigating Officer visited the spot and seized the contraband and he also extracted the samples out of the contraband and sent to the FSL for chemical analysis. After completion of the investigation, charge sheet was filed on 11.07.2017, before the trial court. The charge for commission of offences under section 8 and 20 of the Act was framed against the respondent vide order dated 07.09.2016. As the respondent did not plead guilty, the prosecution was directed to lead evidence. The prosecution had cited as many as 9 witnesses out of which, the prosecution examined only 5 witnesses. 4. Mr. R.S. Jamwal, learned AAG appearing for the appellant vehemently argued that the prosecution has proved the recovery of contraband beyond any shadow of doubt from the respondent but the learned trial court has wrongly acquitted the respondent. 5. Per contra, Mr. Asheesh Singh Kotwal, learned counsel for the respondent vehemently argued that neither the Investigating Officer nor the FSL expert has been examined, as such, there is no illegality or impropriety in the judgment passed by the learned trial court. 6. Heard and perused the record. 5. Per contra, Mr. Asheesh Singh Kotwal, learned counsel for the respondent vehemently argued that neither the Investigating Officer nor the FSL expert has been examined, as such, there is no illegality or impropriety in the judgment passed by the learned trial court. 6. Heard and perused the record. 7. PW-1 Sansar Singh stated that on 18.04.2016, he along with other police officials was on patrolling duty, while going towards Bhaga accused was stopped, who was on foot and tried to run away, but was apprehended and from his possession, 12 numbers of corn cobs containing charas like substance was recovered and the weight of the contraband was 250 grams out of which 20 grams was extracted as sample for FSL analysis. In cross examination, he stated that the accused was arrested by him and Naresh SHO and accused was searched by constable Pardeep. He had gone to Police Station in Police vehicle with docket. The contraband was weighed by ASI Vishal. The place where charas was weighed was surrounded by many shops and residential houses and on spot, number of civilians had gathered. 8. PW-2 Pardeep Singh has deposed on similar lines. He proved the supurdnama of the weighing scale and supurdnama of ring. He also stated that samples were drawn from charas for FSL examination and three packets/plandas marked as A, B and C were prepared. During cross examination, he stated that the accused was searched by SHO himself. No civilian was summoned on spot. The corn cobs were counted by SHO. 9. PW-3 Naresh Sharma stated that on 18.04.2016, during the naka at Bhaga, the respondent was caught and he was checked by SHO and from his possession one envelope containing 12 challies of charas were recovered. SHO addressed a docket to Police Station in this respect where from SI Vishal Singh came on spot and prepared the seizure memo of the charas on spot. The charas was weighed which came to be 295 grams. The ring was kept on his supurdnama. He proved the supurdnama (ExTP-3). During cross examination, he stated that there was prior information about the accused person, so naka was laid and another naka was also laid at Sumble. On reaching of Police Party from Police Station, seizures were handed over to the said Police Party. No civilian was summoned on the spot. The ring was given to him by S.I. Vishal. 10. During cross examination, he stated that there was prior information about the accused person, so naka was laid and another naka was also laid at Sumble. On reaching of Police Party from Police Station, seizures were handed over to the said Police Party. No civilian was summoned on the spot. The ring was given to him by S.I. Vishal. 10. PW-4 Liaqat Ali has deposed on similar lines and he proved the seizure memo of the charas, supurdnama of the weighing machine and supurdnama of ring. During cross examination, he stated that the accused was searched by SHO himself and seized material was recovered from the right pocket of the accused. In cross-examination he stated that he does not remember whether the charas was in his pocket or inside the pant. He also does not know as to whether the accused was searched in presence of a gazetted officer or not. He also does not know as to whether there was prior information about the occurrence. He stated that there were many shops near the place of occurrence. He also did not know as to from whose shop weighing balance was taken by the SHO. 11. PW-7 Suraj Singh (Retd.) stated that he was posted as Naib Tehsildar, Reasi. On 20.04.2016, Vishal Manhas SI produced one sealed packet for re-sealing with mark-B. He re-sealed the packet and gave a certificate in this respect. He proved the certificate (ExT P-7). During cross examination, he stated that he does not know what was the specimen of seal. He also does not know as to who had signed packet that was brought before him. He also does not know as to what was inside the packet when he re-sealed the packets. 12. From the evidence led by the prosecution, it is evident that neither the Investigating Officer nor the FSL expert has been examined by the appellant. More so, there is no evidence on record that the seized contraband and samples extracted from the same, after the seizure was effected, were kept in safe custody. Neither Malkhana Register has been placed on record nor Incharge Malkhana has been examined, so as to prove the safe custody of the sample. More so, there is no evidence on record that the seized contraband and samples extracted from the same, after the seizure was effected, were kept in safe custody. Neither Malkhana Register has been placed on record nor Incharge Malkhana has been examined, so as to prove the safe custody of the sample. The non-examination of the Investigating Officer in NDPS cases is fatal to the prosecution case particularly, when there is no evidence that the seized contraband and the samples extracted from the same were kept in safe custody right from the day of seizure till the same were sent to FSL for chemical analysis. The learned trial court has considered in detail the infirmities in the prosecution case as also noted by us. 13. In view of all what has been discussed above, we do not find that there is any perversity in the judgment of acquittal recorded by the learned trial court, as such, the present appeal is found to be misconceived and is accordingly, dismissed.