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2022 DIGILAW 97 (JK)

State v. Mohd. Amin

2022-03-09

MOHAN LAL, SANJEEV KUMAR

body2022
JUDGMENT : 1. The erstwhile State of Jammu and Kashmir (Now UT of Jammu and Kashmir) is aggrieved by the judgment of acquittal dated 26.12.2013 recorded by the Principal Sessions Judge, Jammu [“the trial Court”] whereby the respondents have been acquitted of the charges under Sections 8/20/60 of Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”] and has prayed for leave to appeal. 2. With a view to find out as to whether there is any merit in the appeal proposed to be filed against the judgment of acquittal, it is necessary to scan through the judgment of acquittal and examine the reasoning given by the trial Court in support of its judgment. 3. The prosecution story as was put up before the trial Court is that on 28.10.2011, a policy party of Police Station, Nagrota was on patrol duty at Bantalab, Nagrota. During the course of checking of vehicles at about 5:00 p.m. they stopped a vehicle Xylo bearing Registration No. JK-03C-4188 which was coming from Srinagar. Two passengers along with a driver were travelling in the said vehicle. The driver disclosed his name as Mohd. Amin, whereas the two passengers sitting in the vehicles disclosed their names as Ashok Kumar and Deepak Kumar. The vehicle was searched and on search, charas like substance wrapped in a plastic bag was recovered. None of them could account for the possession and, accordingly, a docket was sent to the Police Station through constable Murad Ali, whereupon FIR No. 257/2011 for the commission of offences under Sections 8/20/60 NDPS Act was registered against the respondents and the investigation was set in motion. During the course of investigation, the police seized the vehicle. The charas recovered was weighed and it was found that Ashok Kumar and Deepak Kumar were carrying 4 kgs. and 2 kgs. of charas respectively, whereas the driver Mohd. Amin was carrying charas weighing 4 kgs. and 500 gms. which they had concealed in the Dickey of the vehicle. The sample of 100 gms each was taken and sent for chemical examination. Upon receipt of report of the chemical examiner that the seized item was charas, the investigation was completed and the final report submitted in the competent Court of jurisdiction. 4. The charges for the commission of offences under Sections 8/20/60 NDPS Act were framed by the trial Court vide its order dated 20.01.2012. Upon receipt of report of the chemical examiner that the seized item was charas, the investigation was completed and the final report submitted in the competent Court of jurisdiction. 4. The charges for the commission of offences under Sections 8/20/60 NDPS Act were framed by the trial Court vide its order dated 20.01.2012. All the respondents pleaded not guilty to the charges and claimed to be tried. To sustain the charges against the respondents, the prosecution examined PW-1 Manzoor Hussain Malik, PW-2 Murad Ali, PW-3 Madan Lal, PW-4 Abdul Rashid, PW-5 Joginder Sharma, PW-6 Surjeet Kumar, PW-7 Pawan Kumar, PW-8 Janak Raj, PW-9 Shakeel Ahmed and PW-10 Pervez Sajad. The respondents, however, chose not to lead any evidence in defence. 5. Needless to point out that with a view to bring home the charge under NDPS Act, more particularly under the Sections with which the respondents had been charge-sheeted, the recovery of contraband from them is a sine quo non. The next important step is to seal the contraband in a manner that its safety is not compromised in any manner. It is for the Investigating Officer to further ensure that the seized contraband which is properly sealed reaches safely before the FSL for chemical examination and that there is no room or scope for any opportunity to anybody to tamper with the seized contraband. The examination of seized material by the FSL follows steps like proper seizure of the contraband and sealing, picking up of the samples of required quantity from the seized item, re-sealing them in presence of Executive Magistrate and then sending them to the FSL without any further waste of time. However, where the distance between the place of occurrence/Police Station from the FSL is too long that it is necessary to keep the samples taken from the seized contraband in safe custody, in such situation, the Investigating Officer must deposit the seized contraband as well as samples after entering them in the Malkhana register both at the time of deposit and at time of its exist from the Malkhana. These are salient steps which are required to be followed in any investigation in the cases involving the seizure of narcotic drugs and psychotropic substances. As is rightly observed by the trial Court that in the instant case, the recovery of the contraband was made on spot. These are salient steps which are required to be followed in any investigation in the cases involving the seizure of narcotic drugs and psychotropic substances. As is rightly observed by the trial Court that in the instant case, the recovery of the contraband was made on spot. The seizure memo was prepared by the SHO of Police Station, Nagrota, whereas Abdul Rashid, ASI and Murad Ali were marginal witnesses of the said memo. The seizure memo was further attested by the SDPO. It is from the seized contraband, three samples of charas weighing 100 gms. each were taken and sealed separately as A, B and C. As is apparent from the evidence on record, PW Murad Ali has deposed that the polythene bags containing contraband were recovered from the respondents and were in their hands at the time of recovery. Interestingly, the Public Prosecutor, who was conducting the prosecution, did not put this seizure memo to the witness, resultantly PW Murad Ali neither identified his signatures on the seizure memo, nor proved its contents. On one hand, this witness would state that the charas was recovered from the vehicle and on the other hand, he would state that it was in the hands of the respondents. He has even gone to the extent of denying having any knowledge about the occurrence and has stated that it was only PW Abdul Rashid, ASI who told him that the charas had been recovered from the respondents. He further claims in his statement that all the papers were signed in the police station. 6. PW Abdul Rashid ASI, who is also an attesting witness of the seizure memo, has deposed that the respondents were carrying the contraband in nylon bags in their hands. Interestingly, this witness too has not been put the material document i.e. seizure memo and, therefore, he has neither identified his signatures on the seizure memo, nor has he proved its contents. Though the seizure memo clearly indicates that three samples of charas weighing 100 gms. each were taken and sealed on spot, yet the witness does not state anything in his statement recorded in the Court on oath. It has also come in his statement that though, a number of civilians were present on spot, yet none of them was associated as witness with the investigation. each were taken and sealed on spot, yet the witness does not state anything in his statement recorded in the Court on oath. It has also come in his statement that though, a number of civilians were present on spot, yet none of them was associated as witness with the investigation. The witness also claims in his statement that, apart from the civilians, the officials from CID were also present on spot and it is in their presence the search was conducted and charas was recovered. It is correctly noted by the Trial Court that I/O has not cited any civilian or official of the CID as a witness to the recovery and seizure of the contraband nor has he tendered any explanation for not doing so. This would have lent credence to the prosecution story. To the similar effect is the statement of I/O PW Parvez Ahmed. 7. This Court is not oblivious of the position of law that in such like matters, the statements of police witnesses, who conducted the search and seizure on spot, cannot be ignored simply because they are police witnesses, but as a matter of caution, the corroboration of their statements is always desirable. Here it is a case where not only the independent civilian witnesses were present, but even the officials of CID too were present on spot when the seizure and recovery of the contraband was made. It is in view of this evidence brought on record by the prosecution coupled with the failure of the prosecution to even prove the safe custody of the contraband, the trial Court acquitted the respondents. 8. We have already mentioned hereinabove that in such like cases, the seizure is required to be proved beyond reasonable doubt and it is for the prosecution to establish by leading cogent and convincing evidence that the item, which was found to be a contraband by the FSL, was actually seized from the conscious possession of the accused. In the instant case, as we have discussed above briefly, the prosecution has miserably failed to prove the seizure. Once the seizure of the contraband is not proved, which is the foundation of a NDPS case, the rest of the edifice built thereon by the prosecution is bound to fall. 9. In the instant case, as we have discussed above briefly, the prosecution has miserably failed to prove the seizure. Once the seizure of the contraband is not proved, which is the foundation of a NDPS case, the rest of the edifice built thereon by the prosecution is bound to fall. 9. Having noticed the aforesaid serious flaws in the investigation and complete inapt handling of prosecution by the applicant/appellant, this Court vide its order dated 27.11.2019 directed the Secretary to the Government, Home Department of UT of Jammu and Kashmir to send a list of three senior officers out of which this Court may entrust the enquiry to anyone of them. The enquiry was directed to find out the lapses in the investigation and the connivance, if any, of the police with the drug mafia. From the list of officers sent by the Home Department, this Court vide order dated 13.12.2019 appointed one Mr. Sayed Ahfadul Mujtaba, IPS to conduct an enquiry into the whole matter and to pin point the guilt of the concerned officers/officials. The Enquiry Officer has submitted the enquiry report. The Enquiry Officer has given clean chit to the police insofar as the apprehension of this Court of the police acting in connivance with drug mafia is concerned. The Enquiry Officer, however, has concluded that the prosecution failed to prove its case before the Court because of inexperience and lack of professional and technical know-how required for investigation of a case under NDSP Act. The Enquiry Officer too has concluded that failure of the PP, who conducted the prosecution case in a slip-shod manner, has also contributed in failure of case before the Court of law. 10. From the discussion which we have made above and having regard to the enquiry report submitted by the Enquiry Officer, we have noticed the following serious flaws in the investigation compounded further by a totally unprofessional prosecution conducted by the PP: (i) Though the witness to the seizure memo were all police personnel, yet they have majorly contradicted each other and have put the seizure of the contraband in the realm of doubt. (ii) The prosecution witnesses to the seizure memos neither proved their signatures on it, nor they proved its contents. (ii) The prosecution witnesses to the seizure memos neither proved their signatures on it, nor they proved its contents. This was the serious lapse on the part of concerned PP, who either deliberately or for ulterior considerations, did not put the seizure memos to the witnesses or may be he was not knowing the basics of Indian Evidence Act. (iii) Though, the independent witnesses viz. the civilians and the officials of the CID were present on spot when the recovery and seizure was made, yet the I/O did not cite any of them as witnesses. 11. We are aware that the statements of police witnesses cannot be ignored altogether, but corroboration of their statements by the independent witnesses is always desirable and lend credence to the prosecution case. There should be no excuse for not recording the statements of the independent witnesses when such witnesses are available on spot. We see no reason as to why even the officials of CID were not associated as witnesses in the recovery and seizure of contraband. There was also variation of weight of samples sent to FSL and the weight of samples recorded by the FSL. 12. It is true as is also found by the Enquiry Officer that the samples sent to FSL on 31.10.2011 were opened and weighed by FSL on 12.03.2012 and, therefore, the loss of weight in samples could be attributable to loss of moisture in the content leading to its dryness, but such explanation must come from the I.O. and the expert witness. A specific question in this regard could have been put to the official of FSL, who appeared as a witness to prove his report. Even the I/O could have explained such situation and it should not have been left to the guess work of the trial Court. 13. Without going much into the details of the case and while concurring with the view taken by the trial Court, we do not find it a fit case for granting leave to appeal. The application seeking leave to appeal is, accordingly, dismissed. Consequently, CRAA No. 142/2014 is also dismissed. 13. Without going much into the details of the case and while concurring with the view taken by the trial Court, we do not find it a fit case for granting leave to appeal. The application seeking leave to appeal is, accordingly, dismissed. Consequently, CRAA No. 142/2014 is also dismissed. However, before parting, we would like to impress upon the respondents to put a mechanism in place so that the provisions of NDPS Act and the rules framed thereunder are strictly adhered to and the Standard Operating Procedures issued by the Home Department vide Circular No. 2-Home of 2017, dated 25.09.2017 and a Circular No. 01 of 2018, dated 19.11.2018 is strictly followed. The respondents shall do well to have a proper selection procedure in place to select and appoint competent Public Prosecutors. We cannot shut our eyes to the fact that menace of drug trafficking and consumption of drugs in the UT of Jammu and Kashmir is fast gripping in and it is high time that all the Authorities responsible for investigation and prosecution of the cases under NDSP Act are well equipped and educated to handle the investigations and prosecutions. Sporadic seminars and webinars aimed at educating the Investigating Officers and the Public Prosecutors are not sufficient to meet the challenges. There ought to be regular workshops to be conducted by the police within or outside the UT of Jammu and Kashmir, so that the Investigating Officers are professionally trained to conduct these investigations. What, however, is lacking completely is the accountability. We have not come across any mechanism or procedure in place where negligent and or dishonest investigators are made to account for their lapses which many a times they deliberately make to confer wrongful advantage on the persons accused of offences under NDSP Act and their handlers. We have invariably seen that whenever huge quantity of contraband is recovered from a person traveling in a vehicle, it is the driver or one or two carriers with him who are booked and prosecuted, but no effort is made by the police to find out the origin from where the contraband has emanated and the destination where it was supposed to be delivered. In this way, we only try to prosecute the carriers and not the handlers of these carriers who are responsible to run the trade in an organized manner. In this way, we only try to prosecute the carriers and not the handlers of these carriers who are responsible to run the trade in an organized manner. The Department of Home, UT of Jammu and Kashmir, Director General of Police, J&K and the Director General Prosecution shall do well to find out as to in how many cases an effort has been made by the police to find out the origin and the destination of the contraband seized while in transit. We are sure that an honest enquiry, if any made, in this regard would reveal some sort of connivance between some of the police officers/officials and the drug mafia. In the instant case, Enquiry Officer, however, has, as expected, given clean chit to the police, but we leave it to the wisdom of the Authorities who are responsible to maintain law and order to look into this aspect with some more seriousness. Hopping that the respondents are alive to the alarming situation created by the free flow of drugs throughout the Territory of Jammu and Kashmir, we leave it to them to take appropriate corrective and remedial measures and wish not to say anything more. After all, responsibility to maintain law and order lies with the executive and we, as Courts, are only obligated to apply law as it is. 14. Registry to send copy of judgment to the Secretary to Government, Home Department, Director General of Police, Secretary to Government, Law Department and Director General Prosecution. 15. Trial Court record be sent back.