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2022 DIGILAW 552 (JK)

State of Jammu & Kashmir v. Chain Lal

2022-10-07

RAJESH SEKHRI, RAJNESH OSWAL

body2022
JUDGMENT Rajnesh Oswal, J. - The judgment of acquittal dated 19.01.2013 passed by the learned Sessions Judge, Kathua (hereinafter to be referred as trial court) in case titled, 'State vs. Chain Lal and another' for commission of offence under section 8/20 NDPS Act arising out of FIR No. 08/2008 registered with Police Station, Basohli has been impugned by the appellant on the ground that learned trial court has wrongly acquitted the respondents as the appellant had led sufficient evidence that warranted the conviction of the respondents. 2. Mr. Dewakar Sharma, Dy. AG has vehemently argued that the prosecution had successfully proved the case against the respondents by leading cogent evidence but the learned trial court has acquitted the respondents by appreciating evidence wrongly. 3. Mr. Vikas Mangotra, learned counsel for the respondents argued that there are various infirmities in the prosecution case and the recovery of contraband from the respondents is doubtful, as such, the appeal is required to be dismissed. 4. Heard and perused the record. 5. The facts as they emanate from the charge-sheet are that on 20.01.2008, a police patrol party of Police Station, Billawar had laid a Naka at a place called Khabal. When the respondents saw the police party, they ran away. However, they were apprehended at about 16:45 hours and two bags were found in their possession. On inquiry, they disclosed that they were having Charas. The respondent No. 2-Kali Dass was having black bag with him whereas, the respondent No. 1-Chain Lal was having green bag with him. They were produced before the Executive Magistrate First Class and during presence of the Executive Magistrate, bags were searched and in one bag, two plastic bags containing Charas were found and they weighed as 4 Kg 912 gms and from that two samples were prepared and from the green bag, 3 Kgs 848 gms Charas was recovered and from that also two samples were prepared. The docket was prepared and on the basis of docket, SHO, Police Station, Basohli registered an FIR bearing No. 08/2008 for commission of offence under section 8/20 NDPS Act. After the completion of investigation, charge-sheet was laid against the respondents on 11.03.2008. The respondents were charged for commission of offence under section 8/20 NDPS Act vide order dated 23.09.2008. As the accused did not plead guilty so, the prosecution was directed to lead evidence. After the completion of investigation, charge-sheet was laid against the respondents on 11.03.2008. The respondents were charged for commission of offence under section 8/20 NDPS Act vide order dated 23.09.2008. As the accused did not plead guilty so, the prosecution was directed to lead evidence. Out of 15 witnesses, the prosecution examined 12 witnesses whereas, the respondents examined one witness in their defence. The learned trial court after hearing both the parties acquitted the respondents. 6. In order to examine whether the opinion formed by the learned trial court was possible/plausible one, it is necessary to have brief resume of the relevant portion of the evidence led by the parties. 7. PW-1 Abdul Wahid Giri stated that on 20.01.2008, he was posted as SHO, Billawar and he along with Constable, Varinder Kumar and Murad Ali had laid a Naka near Khabal at about 4:40 PM. They saw two persons, who on seeing the police ran away. They were apprehended after chase and they disclosed their identity. Each of them was having bags. On inquiry, they disclosed that they were having Charas. The accused consented to the search and he talked to SDPO, Basohli on phone. He took both of them to the residence of the Magistrate. The Magistrate told him that he will visit the Police Station. He took the Magistrate with him. SDPO, Basohli was also in the Police Station. The Charas was in the shape of balls. 4 Kgs. 912 gms Charas was recovered from the accused-Kali Dass. Two Samples weighing 50 grams each were taken out of the said charas. The samples as well as charas were sealed. Likewise, from the accused-Chain Lal, 3 Kgs. 848 grams of charas was recovered in the form of balls. Samples of 50 grams and 40 grams were taken out of the same. Seizure memos/recovery memos are in his hand writing and bear his signatures. They were true and correct. The charas was weighed by Om Prakash shopkeeper. Thereafter, he wrote a docket and it was sent to SHO, Basohli for registration of the case. In cross examination, he stated that on the day of occurrence, he was posted as SHO, Billawar. The accused were coming from Malika. He laid a Naka on the road. No civilian was there at the time of occurrence. All of them chased the accused when they ran from the spot. In cross examination, he stated that on the day of occurrence, he was posted as SHO, Billawar. The accused were coming from Malika. He laid a Naka on the road. No civilian was there at the time of occurrence. All of them chased the accused when they ran from the spot. They were apprehended at a distance of 200 yards from the place of Naka. It is correct that the charas was recovered from the accused prior to the registration of the case. 8. PW-2 Krishan Paul Singh stated that on 20.01.2008, he was posted as SDPO, Basohli. As SHO, Billawar had told him that a car has been stolen by someone, he asked the SHO to lay a Naka at Shara. At about 04:45, he informed that two persons ran on seeing him and he pursued them and apprehended both of them. One person was having black bag and the other was also having bag in his hand. They stated that bags contained Charas. They were taken before the Magistrate for search. The Magistrate asked to take them to the Police Station. The Magistrate reached the Police Station and searched them. Charas weighing 3 Kgs 848 gms was recovered from Chain Lal and Charas weighing 4 Kgs 912 gms was recovered from Kali Dass. Two samples weighing 50 grams and 40 grams were taken from charas recovered from Chain Lal and two samples weighing 50 grams each were taken from other accused. The Tehsildar resealed them. The remaining contraband was also sealed. In cross-examination, he stated that SHO had not opened the bags containing Charas. The accused were brought to the Police Station after 17.00 hours. The Tehsildar arrived at the Police Station along with the accused. At that time, only Tehsildar searched them. Sample weighing 40 grams was taken from the charas recovered from Chain Lal but he does not remember whether it was marked as B1 or B2. The case was registered after recovery of the charas. The samples were taken after the sun-set. 9. PW-3 Murad Ali stated that on 20.01.2008 at about 8:40 in the evening, he along with SHO, Billawar had gone to Tehsil Basohli in connection with investigation of the case. They had laid Naka at Malika road. The accused were found there. The SHO called them but they tried to run away. They chased and arrested them. 9. PW-3 Murad Ali stated that on 20.01.2008 at about 8:40 in the evening, he along with SHO, Billawar had gone to Tehsil Basohli in connection with investigation of the case. They had laid Naka at Malika road. The accused were found there. The SHO called them but they tried to run away. They chased and arrested them. Each of the accused had bags with them. SHO searched the bags and it contained Charas. The Tehsildar was called at Police Station, Basohli. The SHO, Billawar prepared the memos of recovery and seizure in presence of the Magistrate. These bear his signatures. In cross-examination, he stated that on 20.01.2008, they reached at the place of occurrence at 20:40 hours. After 15 to 20 minutes, the accused reached there. The place of occurrence is surrounded by houses and the shops. The shops were open at that moment. No person residing in the houses or from the shops was associated with the search. The place of occurrence is a public road and there is movement of people. The accused were taken to Police Station, Basohli along with seized bags. The SHO opened the bags at the place of occurrence. They were weighed at Police Station, Basohli in presence of the Magistrate. This is correct that Sub Inspector Ishar Dass weighed the seized charas at the place of occurrence. He does not know the numbers of balls of charas those were recovered from each accused. He does not know the quantity of the charas that was sent to FSL for chemical analysis. This is incorrect that seizure memos were prepared at the place of occurrence. 10. PW-4 Om Prakash was declared hostile and despite, cross-examination, no incriminating material could be extracted from him by learned PP. 11. PW-5 Rohit Kumar Mehra stated that the accused are not known to him. He is a photographer and he had taken three photographs in the case. He neither saw the accused nor had taken their photographs. 12. PW-6 Amarjit Singh stated that on 20.08.2008, he was posted as Tehsildar, Basohli. At around 17/1715 hours, SHO, Billawar, Abdul Wahid Giri asked him to talk to the SDPO. He talked to him. He requested him to visit Police Station, Basohli in connection with arrest of two persons caught with charas. He went to Police Station, Basohli. He met SDPO, Basohli. Kali Dass was having black bag with him. At around 17/1715 hours, SHO, Billawar, Abdul Wahid Giri asked him to talk to the SDPO. He talked to him. He requested him to visit Police Station, Basohli in connection with arrest of two persons caught with charas. He went to Police Station, Basohli. He met SDPO, Basohli. Kali Dass was having black bag with him. There was plastic envelope inside. Some black balls of different size were in the said bag. Chain Lal was also having bag containing black balls of different sizes. The accused told him that the bags contained charas. The weight of balls in one bag was 4 Kgs 900 grams and the balls in other bag weighed 3 Kgs 800 grams. Samples weighing 50-50 grams out of each bag were taken. They were sealed by SHO, Billawar. He resealed them. Thereafter, he handed over them to the SHO. He issued a certificate authorising the Director FSL to open the samples. Two memos of seizure and recovery were prepared at the spot. He attested them. In cross-examination, he stated that when he reached the Police Station, the accused were in the office of SHO. The accused did not make any confession before him. However, SHO told him that recovery was made from the accused. The accused stated that bags belong to them. SHO did not make any inquiry from the accused in his presence. He does not know who prepared the memos of recovery. He also does not know whether these memos were prepared in his presence. 13. PW-7 Hans Raj, Judicial Clerk stated that on 20.01.2008, he saw the Tehsildar in the Police Station. He was also called at Police Station at 1730 hours. Two/three persons were there and Dy. S.P. and SHO were also there. The Tehsildar handed over four packets for resealing but he does not know what was contained in those packets. He did not weigh them. He took print out of letter written by the Tehsildar from the computer. The Tehsildar signed the letter. In cross-examination, he stated that seals with which he resealed the packets were in his office. He carried the packets to the office personally. The Tehsildar was in the Police Station when the seal was affixed. After resealing the packets, he took them to the Police Station. 14. PW-8 Anant Ram stated that on 25.01.2008, he was posted at Police Station, Basohli. He carried the packets to the office personally. The Tehsildar was in the Police Station when the seal was affixed. After resealing the packets, he took them to the Police Station. 14. PW-8 Anant Ram stated that on 25.01.2008, he was posted at Police Station, Basohli. On 24.01.2008, he was deputed to deliver the samples of charas along with letter to the Director FSL, Jammu for chemical analysis. The samples were four in number He obtained a receipt from FSL, Jammu in token of the delivery. 15. PW-9 Sat Paul stated that on 20.01.2008, he was posted as a Selection Grade Constable at Police Station, Basohli. SHO seized two memos of the consent of the accused and two memos of the recovery/seizure which were produced before him by Abdul Wahid Giri, SHO Police Station, Billawar. On the same day, the accused were taken into custody by SHO, Basohli. In cross-examination, he stated that memos of consent and recovery and seizure were prepared by SHO, Basohli at about 21 to 22 hours. 16. PW-10 Shakti Singh stated that on 20.01.2008, he was posted as Investigating Head Constable at Police Station, Basohli. In his presence, two memos of consent and two memos of recovery/seizure of charas were made. He signed them. In cross-examination, he stated that memos of consent and memos of recovery/seizure were prepared by Investigating Officer namely Ishar Dass Verma. They were in his hand writing and bear his signatures. 17. PW-11 Pawan Abrol stated that on 25.01.2008, he received four sealed packets. They were found to contain some greenish black coloured powdered material weighing 51, 52, 50, 50 grams each. He proved the FSL report and as per the test conducted by him, the exhibits were found to be charas. 18. PW-12 Ishar Dass Verma stated that FIR bearing No. 8/2008 was registered on the receipt of the docket. He prepared the site plan which is true and correct. The documents were produced before him by the complainant. Two memos of recovery/seizure and two memos of consent were seized by him. A letter was addressed to FSL for chemical analysis of the contents of the packets. The charas was weighed by Om Prakash. The report was obtained from FSL. In cross-examination, he stated that he received the docket at 17:30 hours. He does not know the name of the person who produced the docket before him. A letter was addressed to FSL for chemical analysis of the contents of the packets. The charas was weighed by Om Prakash. The report was obtained from FSL. In cross-examination, he stated that he received the docket at 17:30 hours. He does not know the name of the person who produced the docket before him. He does not know whether Abdul Wahid Giri conducted the search of the accused at the spot. The accused along with seizure material were produced before him at the Police Station in the evening. The complainant had called the Magistrate at the Police Station. The accused were searched in the presence of the complainant. After the registration of the case, he investigated the matter. The docket does not form the part of the file. The weight of the charas and photography was conducted by him. He does not know the number of the balls of charas. The samples of the seized charas were taken by complainant and the complainant sealed them. He did not seal them. The samples were sent to FSL on 25.01.2008. The seized charas was lying in the Police Station from 20.01.2008 to 28.01.2008. Thereafter, it was deposited in Malkhana. 19. Defence has examined one witness namely Sher Singh. DW Sher Singh stated that the respondents are also shepherds and four years ago in the winter, the respondents were grazing their cattle. They spotted two persons. At that time, one officer and three constables reached there. The two persons threw their bags and ran away. The police called the respondents from their houses and asked them to carry the bags to Basohli. The bags did not belong to the accused. In cross-examination, he stated that the accused are neither related to him nor do they reside in his village. He does not know whether the accused had consumed the liquor or any drug. 20. From the evidence brought on record it is evident that the recovery and seizure of the charas from the respondents is doubtful. As per the statement of Abdul Wahid Giri, the seizure was effected by him and the memos of seizure/recovery are in his hand writing whereas, statement of PW Amarjit Singh Executive Magistrate reveals that the accused were searched in his presence and the charas was recovered from them at the Police Station, Basohli. As per the statement of Abdul Wahid Giri, the seizure was effected by him and the memos of seizure/recovery are in his hand writing whereas, statement of PW Amarjit Singh Executive Magistrate reveals that the accused were searched in his presence and the charas was recovered from them at the Police Station, Basohli. Amarjit Singh has further stated that SHO told him that recovery has been made from the accused and he does not know who prepared the recovery memos and also does not know whether the same were prepared in his presence. PW K.P. Singh has stated that the accused were searched by Magistrate. Ishar Dass Verma, I.O. stated that memos of seizure were prepared by Abdul Wahid Giri but PW Sat Paul and Shakti Singh have categorically stated that memos of consent and memos of recovery and seizure were prepared by SHO, Basohli i.e. Ishar Dass Verma. This also makes the seizure doubtful. Not only this, the time when the respondents were spotted is also doubtful. The statement of SDPO K.P. Singh reveals that he has stated that the accused were brought to Police Station after 1700 hours. Ishar Dass Verma has stated that he received the docket at 17:30 hours. PW Sat Paul has deposed that memos of recovery and seizure were prepared at Police Station, Basohli between 21 to 22 hours. PW Murad Ali has stated that at 08:40 in the evening, he along with Abdul Wahid Giri SHO, Billawar went to Basohli in connection with the case and after 15 to 20 minutes, the accused reached there. Thus, there are different versions with regard to apprehending of the respondents. All these infirmities cannot be ignored particularly when in NDPS cases, burden is very high upon the prosecution to prove the recovery of contraband beyond any shadow of doubt. More so, there is discrepancy in the weight of the samples as extracted by the Investigating Officers vis-a-vis. the weight of the samples received by the FSL. As per the prosecution case, three samples of 50 grams each and one sample of 40 grams were extracted out of the two bags. However, the FSL report reveals that there were four samples weighing 51, 52, 50 and 50 grams. the weight of the samples received by the FSL. As per the prosecution case, three samples of 50 grams each and one sample of 40 grams were extracted out of the two bags. However, the FSL report reveals that there were four samples weighing 51, 52, 50 and 50 grams. Though, difference of one or two grams can be ignored but there is a substantial difference in one sample when as per the prosecution story, 40 grams of the sample was extracted from the seized contraband but when the same was received by the FSL, the same was found to be 50 grams. This discrepancy in the weight is substantial and cannot be ignored. It assumes significance that only independent witness PW Om Prakash, who is alleged to have weighed the contraband, has not supported the prosecution. The samples were extracted on 20.01.2008 and received by the FSL on 25.01.2008. There is no evidence that in this intervening period, the samples remained in safe custody as neither Malkhana register has been placed on record nor In-charge, Malkhana has been examined. The Investigating Officer has miserably failed to prove that the samples were kept in safe custody from the date they were extracted till the same were sent to FSL so as to negate any chance of tempering with the samples. 21. We have gone through the judgment passed by the learned trial court and the learned trial court has rightly come to the conclusion that the prosecution has failed to prove the charges against the accused beyond doubt. In view of the major infirmities/material contradictions in the case projected by the prosecution, we do not find any reason, whatsoever, to disagree with the findings returned by the learned trial court. As such, the judgment of the learned trial court is upheld and this appeal is, accordingly, dismissed, as is found to be without any merit. 22. Record of the trial court be sent back.