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2022 DIGILAW 753 (JK)

State of J&K v. Mohd. Maqbool Raina

2022-12-30

PUNEET GUPTA, RAJNESH OSWAL

body2022
JUDGMENT : 1. The present appeal is directed against the judgment of acquittal recorded by the Court of learned 2nd Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) whereby the respondent has been acquitted of the charges for commission of offence under section 8/20 NDPS Act arising out of FIR No. 3/2009 registered with Police Station, Bahu Fort, Jammu. 2. The judgment has been impugned on the ground that the learned trial court has mis-appreciated the evidence and acquitted the respondent erroneously, as the prosecution had successfully proved the allegations levelled against the respondent by leading cogent evidence. 3. Mr. Amit Gupta, learned AAG appearing on behalf of the appellant vehemently argued that the prosecution had successfully proved the recovery of contraband from the respondent, but despite that the learned trial court acquitted the respondent by wrongly appreciating the evidence. 4. Mr. Jagpaul Singh, learned counsel for the respondent argued that the mandatory provisions of the NDPS Act were not followed by the Investigating Agency, as such, the learned trial court has rightly acquitted the respondent. 5. Heard and perused the record. 6. The facts as they emanate from the chargesheet are that FIR bearing No. 3/2009 for commission of offence under section 8/20 NDPS Act was registered pursuant to a docket received at the Police Station, Bahu Fort, Jammu through Constable Zafar Iqbal from in-charge Police Post, Narwal. It was stated that the In-charge Police Post, Narwal along with Constable Basheer Ahmed, Selection Grade Constable Sat Pal, Selection Grade Constable Zafar Iqbal, Constable Masarat Hussain had laid a naka at Narwal Chowk and while checking the vehicles, one Maruti Car bearing No. JK01H-7392 that was coming from Malik Market towards Jammu city was stopped. During search of the vehicle, one white coloured polythene bag containing Charas was found from below the seat of the driver. The driver disclosed his name as Maqbool Raina and he could not give any satisfactory reply with regard to the contraband. The Charas was weighed and was found to be 8 Kilograms. After the registration of the FIR, the investigation was handed over to Inspector-Abdul Wahid Giri. He prepared the site plan of the place of recovery and also the seizure memo of Charas and car. The Investigating Officer extracted 200 grams from the seized contraband and prepared the sample. The sample was sent to FSL for chemical analysis. After the registration of the FIR, the investigation was handed over to Inspector-Abdul Wahid Giri. He prepared the site plan of the place of recovery and also the seizure memo of Charas and car. The Investigating Officer extracted 200 grams from the seized contraband and prepared the sample. The sample was sent to FSL for chemical analysis. As per the FSL report, the Charas was detected in the samples. The Investigating Officer also recorded the statements of the witnesses under section 161 Cr.P.C. After the conclusion of the investigation, the Investigating Officer proved the offences under Section 8/20 NDPS Act against the respondent and thereafter the charge sheet was laid before the learned Sessions Judge, Jammu on 28.02.2009 and the same was transferred to the learned trial court. 7. The learned trial court framed the charges against the respondent for commission of offences under section 8/20 NDPS Act vide order dated 18.04.2009. 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 8 witnesses. After hearing the parties, the learned trial court acquitted the respondent. 8. In an acquittal appeal, it is to be examined as to whether the opinion formed by the learned trial court is possible/plausible while acquitting the respondent on the basis of evidence led by the parties during the trial and if it is so, then no interference with the judgment of acquittal is warranted. 9. In order to appreciate the contentions of the appellant and to examine as to whether the opinion formed by the learned trial court is possible on the basis of the evidence led by the prosecution or not, it is necessary to have a brief resume of the relevant portion of the prosecution evidence. 10. PW 1-Parvez Sajad stated that on 08.01.2009 a Maruti Car coming from Malik Market towards Jammu city was stopped by him. Other constables were also with him. During checking, one polythene bag having Charas was found from beneath the seat of the driver. It was weighed by a Rehariwala and was found to be 8 kilograms. He seized the Charas as also the car and sent the docket for registration of FIR with the Police Station, Bahu Fort, Jammu. SHO, Police Station, Bahu Fort, Jammu reached on spot and seized the seizure memo seized by him. It was weighed by a Rehariwala and was found to be 8 kilograms. He seized the Charas as also the car and sent the docket for registration of FIR with the Police Station, Bahu Fort, Jammu. SHO, Police Station, Bahu Fort, Jammu reached on spot and seized the seizure memo seized by him. The accused was arrested. SHO prepared the sample of 200 grams and sealed it. He proved the docket Ext-P3. He also proved the seizure memos (Ext-P2 and Ext-P3). In cross-examination, he stated that he does not remember as to who prepared the docket for registration of FIR and also as to who prepared the seizure memo Ext-P3. He also expressed ignorance about the person from whom the seal was brought. He stated that the Charas was got weighed by Kamal Kumar (Rehariwala). He also expressed ignorance about as to who wrote Ext-P2. His Police Post falls under Police Station, Bahu Fort, Jammu and there is Malkhana. Samples and other packets were handed over to SHO. He does not remember the name of In-charge Malkhana. He also stated that there is Malkhana in Police Post Narwal and sample as well as the remaining Charas was kept there. In the CD file it is mentioned that the sample and remaining contraband was kept in Malkhana. Time of keeping the Charas in Malkhana has not been mentioned and also the name of In-charge Malkhana has not been mentioned. 11. PW 2-Sat Pal has also deposed on the similar lines as that of PW-1. He also stated that at 5:30 P.M. the SHO came on spot and seized the Charas as well as the vehicle produced by in-charge Police Post. 200 grams of sample was extracted by him and was marked as A and rest of the contraband was marked as B. The ring used for sealing was kept on Supurdnama of Kamal Kumar. He proved the seizure memo Ext-P3, Ext-P2 and Ext-P2/1. In cross-examination, he stated that the vehicle was searched after the accused was brought out of the vehicle and the bag was first seen by the in-charge Police Post. He and Constable-Shabir brought out the bag from the vehicle. He does not know who called Kamal Kumar and he saw him for the first time then only. After weighing, the Charas was kept in a newspaper. He and Constable-Shabir brought out the bag from the vehicle. He does not know who called Kamal Kumar and he saw him for the first time then only. After weighing, the Charas was kept in a newspaper. He does not know as to who prepared the seizure memos on spot, however, ASI-Parvez brought the same to him and he signed on them. 12. PW 3-Constable Bashir Ahmad has also deposed in a similar manner as that of PWs -1 and 2 and lastly stated that both accused and Charas were brought to Police Post. He proved the seizure memo Ext-P3. In cross examination, he stated that the packet was first seen by ASI-Parvez and he told them that it was Charas. 200 grams of sample was extracted by the SHO in his presence. Charas was weighed by a weighing machine (Tarazu) by a person who was called on spot. His statement was recorded by Parvez who was the Investigating Officer, who recovered Charas on spot. Charas was weighed by Kamal Kumar and weights were of 2 Kg and 1 Kg. 3 kilograms of Charas was weighed twice and 2 Kilograms of Charas was weighed once. All the statements were recorded by ASI-Parvez Sajad in his presence. The bag was opened on arrival of the SHO. 13. PW 4-Zaffar Iqbal stated that on 08.01.2009 he was on duty at Narwal Chowk. While he was performing his duty at Narwal Chowk along with in-charge Police Post-Parvez Sajad and Constables-Bashir Ahmad, Sat Pal, Masarat Hussain, one Maruti car bearing No. JK01H-7392 was stopped by Parvez Sajad and below the seat of the driver, one white coloured polythene bag was found and Charas was found in it. Kamal Kumar (Rehariwala) was called on spot, who weighed the same and it was found to be 8 kilograms. Docket was prepared and he carried the docket to the Police Station and handed over the same to the SHO, whereupon the FIR was registered. He came back along with SHO. SHO extracted the sample of 200 grams and sealed the same. Sample was marked as A and the remaining contraband was marked as B. They were sealed with a ring which was kept on Supurdnama of Kamal Kumar. He proved the Supurdnama Ext-P2/1. In cross-examination he stated that the bag containing Charas was first seen by Parvez Sajad who brought it out. Sample was marked as A and the remaining contraband was marked as B. They were sealed with a ring which was kept on Supurdnama of Kamal Kumar. He proved the Supurdnama Ext-P2/1. In cross-examination he stated that the bag containing Charas was first seen by Parvez Sajad who brought it out. SHO did not record his statement. Docket was written by in-charge police post and FIR was registered by SHO. No independent witness was called on spot. 14. PW 5-Masarat Hussain has also deposed in an identical manner like that of PWs 1, 2 and 3. In cross-examination, he stated that he does not know whether SHO gave option to the accused about his right of search before a Magistrate or a Gazetted Officer as at that time he was checking other vehicles. Officer in-charge and they brought the bag out of the vehicle and officer incharge weighed the Charas and SHO was present there. Weighing Pan and weights were brought by Kamal Kumar. Weights were of 2 Kg and as such, the Charas was weighed four times. 15. PW-Ram Parkash Nath Naib Tehsildar stated about resealing of the packets and proved the certificate market as Ext P-7. 16. PW 8- Rohit Koul proved the FSL report marked as Ext RK-1. 17. PW 9-Abdul Wahid Giri has deposed that in-charge Police Post, Narwal recovered 8 Kg of Charas from the possession of the accused who was carrying the same in a car. He seized the seizure memo and also prepared a sample of 200 grams of Charas after extracting the same from the recovered contraband. The sample was marked as A and the remaining Charas was marked as B. The accused was arrested. Statements of witnesses were recorded. Charas was weighed in presence of PW-Kamal Kumar. The accused was taken to Police Post, Narwal and the packets of the seized Charas and the sample were handed over to in-charge of Malkhana of the Police Post. The seized Charas was got re-sealed from the Executive Magistrate and the sample was forwarded to FSL. He also prepared the site plan. After conclusion of the investigation, he proved the offences against the respondent under section 8/20 NDPS Act. In cross-examination, he stated the he cannot say as to who wrote the docket, on the basis of which the FIR was registered. He also prepared the site plan. After conclusion of the investigation, he proved the offences against the respondent under section 8/20 NDPS Act. In cross-examination, he stated the he cannot say as to who wrote the docket, on the basis of which the FIR was registered. He enquired from the in-charge, who told him that the accused disclosed the weight of Charas as 8 Kg. Recovery in this case was a chance recovery and prior to registration of FIR Charas was recovered. Seizure memo was prepared before he reached on spot. He did not enquire as to who wrote the seizure memo. The Charas was seized on 8th and on the same day it was deposited in Malkhana. On 10th, it was re-sealed by the Executive Magistrate. The sample thereafter was sent to FSL on 19th for analysis. Sample was never given to Dy. S.P., however, report of the case was given to Dy. S.P. Sample was not sent to FSL on the day when it was re-sealed by the Executive Magistrate. Sample was received at FSL through Head Constable Mohan Lal on 19.01.2009 along with covering letter dated 16.01.2009. This is the whole evidence led by the prosecution. 18. From the evidence brought on record by the prosecution it is evident that all the prosecution witnesses i.e. PWs-1, 2, 3, 4 and 5 have stated about the recovery of Charas from the vehicle which was being driven by the respondent. All the witnesses are Police witnesses and only independent witness i.e. PW 6-Kamal Kumar cited by the Prosecution to prove the weighing of the contraband has been given up by the prosecution. The evidence of abovementioned prosecution witnesses who are police officials and have deposed in favour of the prosecution cannot be rejected simply because they are Police officials but is required to be examined with due care and caution. 19. PW-Bashir Ahmad has stated that all the statements were recorded by ASI-Parvez Sajad on spot. To the same extent PW-4 Zaffar Iqbal has also deposed. More so, as per the Ext-P1 the Charas was weighed prior to arrival of SHO, but SHO who is also the Investigating Officer has stated that he got the Charas weighed. Though, all the witnesses have stated about the recovery of the contraband from the vehicle being driven by the respondent, but there are material contradictions with regard to weighing of the contraband. Though, all the witnesses have stated about the recovery of the contraband from the vehicle being driven by the respondent, but there are material contradictions with regard to weighing of the contraband. PW-5 Masarat Hussain has stated that weights were of 2 Kg and Charas was weighed four times, whereas PW-3 Constable Bashir Ahmad stated that the weights were of 2 Kg and 1 Kg. 3 Kg of contraband was weighed twice and 2 Kg once. These are some of the contradictions and discrepancies in the prosecution case. Besides these, the link evidence is absolutely missing in this case. As per the prosecution, the contraband was recovered on 08.01.2009, re-sealed on 10.01.2009 and received at FSL on 19.01.2009. Though, Investigating Officer, Abdul Wahid Giri has stated that after recovery was effected from the accused, the contraband as well as the sample were deposited in the Malkhana, but nothing has been placed on record to prove this fact. Further the sample was re-sealed by the Executive Magistrate on 10.01.2009, but there is no evidence to this extent also that the sample was taken out of the Malkhana for the purpose of re-sealing on 10.01.2009. In fact, there is nothing on record either in the shape of statement of in-charge Malkhana or in the form of extract of Malkhana Register to prove that the sample was kept in Malkhana and was taken for purpose of re-sealing and deposited again in the Malkhana. When the sample was re-sealed on 10.01.2009 then why the sample was sent to FSL on 19.01.2009. No reason has been furnished by the prosecution for the same. Prosecution has miserably failed to explain as to where the sample was kept during these 9 days. It assumes significance as the prosecution has not been able to prove the custody of seal, as the PW Kamal Kumar with whom the seal was kept on supurdnama was given up by the prosecution. In NDPS cases, the prosecution is under bounded duty to prove the safe custody of the sample right from the time when after recovery the same was extracted till the sample reaches the FSL. The prosecution has miserable failed to prove the same. 20. We have examined the judgment passed by the learned trial court and the learned trial court has rightly considered the issue more particularly the link evidence which is absolutely missing in this case. The prosecution has miserable failed to prove the same. 20. We have examined the judgment passed by the learned trial court and the learned trial court has rightly considered the issue more particularly the link evidence which is absolutely missing in this case. Therefore, it cannot be said that the opinion formed by the learned trial court while acquitting the respondent is contrary to record. 21. Viewed thus, we do not find any merit in the present appeal and the same is, accordingly, dismissed. 22. Record of the trial court be sent back.