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2023 DIGILAW 168 (JK)

State of J&K v. Adil Ahmed Sofi

2023-04-28

RAJESH SEKHRI, SANJEEV KUMAR

body2023
JUDGMENT : Rajesh Sekhri, J. 1. This appeal has been directed against judgment dated 31.05.2018 propounded by learned Special Judge (Principal Sessions Judge), Ramban (for short, learned trial court) in File No. 17/Spl. Challan, titled 'State v. Adil Ahmed Sofi' and FIR No. 35 of 2016 of Police Station Banihal for offences under section 8/15 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, NDPS Act), vide which, respondents have been acquitted of charges. 2. Shorn of customary verbosity, case of the appellant-State/prosecution is that on 24.03.2016, while HC-Chanderdev No. 778 Rbn of Police Post, Jawahar Tunnel along with police personnels were conducting traffic checking on NHW 1-A at Jawahar Tunnel, they intercepted a Xylo Car bearing Registration No. JK01-U/1711 at about 11:45 being driven by respondent on its way from Srinagar. None else was stated to be travelling in the said vehicle. On search of the vehicle, a white coloured plastic bag containing poppy straw came to be recovered from a hole of the dickey and 36 polythene bags of green colour containing poppy straw were recovered from both sides of the dickey and inside the rear window. It is alleged that respondent-accused failed to offer satisfactory explanation with respect to the possession of the contraband. A docket (EXTP-1) was sent to Police Station, Banihal through SPO-Raju Singh, consequently aforesaid FIR came to be registered and investigation was assigned to Sub Inspector Shamsher Singh. Investigating Officer rushed to the spot and he conducted rituals of the investigation including weight of the contraband through an electronic weighing scale. The total weight of the contraband came out to be 57 kg and 300 grams. 500 grams each of the contraband was extracted from the bags and two parcels marked as A-1 and A-2 were prepared for chemical examination. The remaining contraband was marked as A. Likewise, 100 grams each of the contraband was extracted from 36 polythene bags for chemical examination and two parcels containing 1800 grams each of the poppy straw were also prepared. Two plastic bags containing 18 polythene bags each were marked as B and C and marks B-1 and B-2 were put on the parcels containing poppy straw extracted from 36 polythene bags aforesaid. All theses parcels were sealed with a specimen seal impression 'J' and the said seal was kept on the superdnama of Chanderdev HC No. 778 Rbn. Two plastic bags containing 18 polythene bags each were marked as B and C and marks B-1 and B-2 were put on the parcels containing poppy straw extracted from 36 polythene bags aforesaid. All theses parcels were sealed with a specimen seal impression 'J' and the said seal was kept on the superdnama of Chanderdev HC No. 778 Rbn. Weighing scale was kept on the superdnama of Shakeel Ahmed No. 776 Rbn. Statements of prosecution witnesses under Section 161 of Code of Criminal Procedure, 1973 (for short, Cr.P.C.) were also recorded. As per the prosecution story, the recovered and sealed contraband were deposited with the Incharge Malkhana Police Station Banihal. Subsequently, the aforesaid samples came to be re-sealed by the Executive Magistrate 1st class, Banihal and thereafter parcels bearing marks A-1 and B-1 were sent to FSL Jammu for chemical analysis. Statements of PWs Raju Singh and Khadam Hussain SPO were recorded under Section 164-A Cr.P.C. and accused was arrested. FSL report was also obtained and it came to the fore, during investigation, that having purchased the contraband, respondent was on his way to Jammu for sale of the contraband. 3. Having concluded that offences under Sections 8/15 of the NDPS Act were proved against the respondent, a final report, under section 173 Cr.P.C., was presented in the trial court. Respondent came to be charged for the aforesaid offences whereby he pleaded not guilty and claimed trial, therefore, prosecution was directed to adduce evidence to substantiate allegations against the respondent. Pursuant thereto, prosecution has examined 11 witnesses to bring home guilt of the respondent. 4. On conclusion of the prosecution evidence, statement of the accused under section 342 Cr.P.C. was recorded whereby he denied incriminating evidence against him and appeared in the witness box as a solitary defence witness. 5. Learned trial court, on appreciation of the case has concluded that prosecution has failed to establish guilt of the respondent beyond reasonable shadow of doubt and accordingly, respondent has been acquitted of the charges. 6. Appellant-State has questioned the impugned judgment of acquittal on the conventional grounds that respondent has been acquitted by the trial court despite sufficient material on record to sustain conviction as learned trial court has failed to appreciate the law and facts of the case in right perspective. 7. Having heard Mrs. Monika Kohli, learned Sr. AAG for the appellant-State and Mr. 7. Having heard Mrs. Monika Kohli, learned Sr. AAG for the appellant-State and Mr. Arif Javid Khan, learned counsel for the respondent, we do not find any illegality or impropriety in the impugned judgment of acquittal for the following reasons. 8. For the sake of brevity, instead of giving a detailed resume of the prosecution evidence, it is proposed to refer to the relevant parts of depositions of the prosecution witnesses by highlighting their respective names as, when and where required. 9. It is an admitted case of the prosecution that samples were sealed on the spot with a specimen seal impression 'J'. However, PWs Darminder Kumar and Mohd. Rafiq have deposed that seal impression of the seal used for sealing the samples of the contraband in question was 'T'. Both PWs Darminder Kumar and Mohd. Rafiq are police officials and, therefore, this contradiction with respect to seal impression in the present case assumes significance and cannot be lost sight of. The prosecution has even failed to produce said seal having seal impression 'J' in the court during the trial. 10. It is also positive case of the prosecution that 57 kg 300 grams of poppy straw came to be recovered and seized on the spot. However, PW Shamus-ud-Din Incharge Malkhana has deposed that on 24.03.2016 SI Shemshar Singh produced 20 kg 300 grams poppy straw, he deposited the said contraband in the Malkhana and made an entry in Register No. 19. Prosecution has failed to furnish any explanation with respect to remaining contraband recovered and seized in the case. Another serious discrepancy with respect to the weight of the sample is that it is also case of the prosecution that samples A-1 and B-1 weighing 500 grams and 1 Kg 800 grams respectively were sent to FSL for chemical examination, but PW-Pawan Abrol Scientific Officer has deposed that he received two sealed packets forwarded by SDPO Banihal. The said sealed packets marked A-1 and B-1 were given exhibits No. P-486/2016 and P-487/2016 by him. According to him, exhibit No. P-486/2016 weighed 500 grams and the second exhibit No. P-487/2016 weighed 800 grams. The said sealed packets marked A-1 and B-1 were given exhibits No. P-486/2016 and P-487/2016 by him. According to him, exhibit No. P-486/2016 weighed 500 grams and the second exhibit No. P-487/2016 weighed 800 grams. In cross examination, he has clarified that though letter No.SBD/FSL/16/1449-52, dated 26.03.2016 forwarded by SDPO, Banihal through ASI-Romesh Chander to him reveals at serial No. 3 that packet No. B-1 contained 01 kg 800 grams of poppy straw, but when he received the said packet B-1, it contained only 800 grams of poppy straw. Again prosecution has failed to explain and justify about the said packet of 01 kg 800 grams of the contraband and, therefore, tampering of the contraband, in such circumstances, cannot be ruled out. 11. Another flaw noticed in the prosecution case with respect to number of samples and weights of samples is that testimonies of eye witnesses are also discrepant. The eye witnesses to the occurrence have also made contradictory statements with respect to total number of samples and weights of the packets containing samples of the contraband. PW-Khadam Hussain SPO has stated that four number of packets of the samples each weighing 100 grams were prepared on the spot. Contrary to him, PW-Dharminder Kumar has stated that four number of samples were prepared on the spot, out of which, two packets weighed 100 grams each and the remaining two packets weighed 01 kg 800 grams. PW-Raju Singh has contradicted both PWs-Khadam Hussain and Dharminder Kumar by stating that only three number of packets of samples weighing 100 grams each were prepared on the spot. 12. Further in order to ensure that contraband recovered and seized on the spot, samples drawn therefrom and later deposited in the Malkhana are not tampered with, prosecution is obliged to prove that they were properly sealed and were got re-sealed from the Executive Magistrate 1st Class, as mandated by the NDPS Act. The placement of seal used for sealing of samples, therefore, is of vital importance. As per the prosecution case, seal was kept on the Superdnama of PW HC Chanderdev. However, PWs-Nawab Ahmed and Shakel Ahmed have stated that said seal was kept on the Superdnama of PW Mohd. Rafiq and contradicting him, PW-Dharminder Kumar has deposed that said seal was kept by IO Shamsher Singh with himself, whereas IO Shamsher Singh has stated that seal was kept on the superdnama of HC Chanderdev. However, PWs-Nawab Ahmed and Shakel Ahmed have stated that said seal was kept on the Superdnama of PW Mohd. Rafiq and contradicting him, PW-Dharminder Kumar has deposed that said seal was kept by IO Shamsher Singh with himself, whereas IO Shamsher Singh has stated that seal was kept on the superdnama of HC Chanderdev. Be it noted that PW-Chanderdev, witness to the superdnama of seal, has not said anything in his statement with respect to the placement of seal on his superdnama. 13. It is evident from the above that link evidence adduced by the prosecution in the present case viz. "the quantity of contraband received by Incharge Malkhana qua the quantity recovered and seized by the Investigating Officer, receipt of one of the samples by the Chemical Analyst, lesser in quantity than sent by the Executive Magistrate, discrepant testimonies of eye witnesses with respect to number of samples and weights of samples and placement of seal on Superdnama, is far from being satisfactory and inevitable effect of unsatisfactory link evidence is that prosecution has failed to rule out the possibility of samples being changed or tampered with, which prosecution is obliged to prove affirmatively. Be it also noted that the witnesses who have contradicted each other on these material aspects of the case are police personnels. These discrepancies could have been ignored if such witnesses were independent or laymen or rustic villagers. Unfortunately, the discrepancies noted above have come to the fore from the mouth of trained police officials, who are supposed to be aware of the consequences of their testimonies made in the Court. 14. In a similar fact situation, the High Court of Punjab and Haryana in Lala & Ors. v. State of Punjab reported as 2013 (2) Criminal Cases 598 has observed as below: "The other grounds of defence i.e. discrepancies in the statements official witnesses regarding the number of dockets prepared or as to who was driving the tractor are not material in a case where the witness is a layman. However, six out of seven prosecution witnesses, in the instant case are police officials who receive adequate training and know the implications of the statements made by them before the Court of Law. The discrepancies or contradictions in the statements become material in the instant case as the statements have come from the trained officials of the Police Force. However, six out of seven prosecution witnesses, in the instant case are police officials who receive adequate training and know the implications of the statements made by them before the Court of Law. The discrepancies or contradictions in the statements become material in the instant case as the statements have come from the trained officials of the Police Force. Therefore, in the opinion of this Court, a contradiction or defect in the statement of police witness takes the complexion of material deficiencies. This is more so because NDPS Act imposed strict liability on offenders. The guilt of anyone accused of a crime under NDPS Act thus, has to be established by scanning the prosecution evidence in the manner of a microscopic examination. Thus, the contradiction in the statements of PWs with regard to the mode of transportation and preparation of other records in the present case, are material." 15. We have also noticed that there is nothing in the prosecution case to indicate that sample of seal used for sealing of the contraband was sent to the Chemical Analyst along with the samples for the purpose of comparison of the seals on the packets of samples. This safeguard is provided to ensure that seals found on the samples were in fact the same seals and to rule out the possibility of the samples being changed or tampered with during the period they remained in the custody of the Investigating Officer or Malkhana. 16. The importance of forwarding of the sample seal along with samples for the purpose of comparison was discussed by Hon'ble Supreme Court in State of Rajasthan v. Gurmail Singh reported as AIR 2005 SC 1578 in which the Apex Court has ruled as below: ".......We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband..............." 17. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband..............." 17. The principle of law enunciated in the afore-quoted case law is applicable to the facts and circumstances of the present case on account of failure on the part of investigating agency to forward samples of the seal, along with samples, to the Chemical Analyst for the purpose of comparison that the said seals were in fact same seals which were put on the samples or not, and for this omission, the prosecution case is rendered highly doubtful. 18. Next, loophole in the prosecution case is that the sealed samples are required to be signed by the SHO of the concerned Police Station as well as by the accused. However, there is nothing in the prosecution evidence to suggest that said samples were signed by anyone of them. 19. Another aspect of the matter, which cannot be lost sight of is that it is also case of the prosecution that none except respondent was found in the vehicle at the time of occurrence. However, PWs-Dharminder Kumar and Raju Singh have contradicted the entire prosecution story by stating that there were two to three other persons travelling in the said vehicle at the relevant time. Hiding the genesis of the crime always creates a doubt on the veracity of the prosecution case. 20. We also find infraction of Section 57 of the NDPS which inter alia provides that whenever any person makes arrest and seizure, he shall make full report of all particulars of arrest and seizure to his superior officer within a period of 48 hours, however, there is nothing in the prosecution case or the evidence that Investigating Agency has complied with the said provision. 21. It is trite that in cases under the NDPS Act, keeping in view the gravity of offences and the severity of punishment attached thereto, prosecution is obliged to adduce cogent and trustworthy evidence as also to ensure that mandatory provisions of the Act are religiously complied to rule out any possibility of tampering and consequent false implication of accused. It is also settled law that more serious the offence, the stricter degree of proof is required to sustain conviction of an accused. It is also settled law that more serious the offence, the stricter degree of proof is required to sustain conviction of an accused. Needless to say that mandate of law enshrined under NDPS Act is required to be complied strictly in view of severity of punishment prescribed under the Act. Legislature in its wisdom has enacted various safeguards in various provisions of the Act to be strictly followed by an Investigating Agency at different stages of investigation to rule out the possibility of false implication. 22. What we have observed in the present case is that not only the prosecution evidence and that too of police officials is replete with contradictions and discrepancies on material aspects of the case including total numbers and weight of packets containing the sample of the contraband, the seal impression, recovery and seizure of the contraband and the receipt of the same by the Incharge Malkhana but mandatory provisions of the NDPS Act have been observed in breech. 23. Having regard to what has been observed and discussed above, we do not find any illegality much less impropriety in the well reasoned impugned judgment of acquittal. Viewed thus, we have not been persuaded to take a view different from the one taken by learned trial court. Hence present appeal is dismissed and the impugned judgment is upheld. Respondent is discharged of his bail bonds. Record of the trial court, if any, shall be returned.