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2023 DIGILAW 521 (JK)

Intelligence Office, NCB v. Ab. Hameed Rashi

2023-09-16

PUNEET GUPTA, SANJEEV KUMAR

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JUDGMENT : Sanjeev Kumar, J. 1. This appeal by Union of India is directed against the judgment of acquittal dated 23.09.2014, passed by the learned Principal Sessions Judge, Jammu [“the trial Court”] titled 'State through Intelligence Officer v. Abdul Hameed Rashi & Anr.', whereby the complaint filed by the Narcotics Control Bureau, Jammu, Zonal Unit against the respondents herein has been dismissed and the respondents acquitted of the charge under section 8/20/60 of NDPS Act. 2. Briefly put the prosecution story projected by the appellant in its complaint filed before the trial Court are that on 31.03.2012, a secret information was received by Mr. Naresh Kumar, Intelligence Officer of NCB, Jammu from a reliable source that the respondents would be transporting narcotic drugs from Kashmir valley to Akhnoor in a Tavera vehicle. This information was given by the Intelligence Officer to the Superintendent, NCB, Jammu, who upon receipt of this information, constituted a team under his supervision to lay a naka in Malpur area on 31.03.2012. On 01.04.2012, at about 4:20 a.m., two persons, namely Ram Pal Sharma and Ghanshyam Sharma, who were crossing the national highway, were informed by the Intelligence Officer Naresh Kumar that there was possibility of presence of narcotic drugs in a Tavera vehicle. They were requested to accompany NCB team to the place of naka to witness the entire proceedings of seizure, if any, effected from the vehicle. On the said persons agreeing to the request, a notice under section 53 of NDPS Act was issued to them by the Intelligence Officer. 3. At about 4:30 a.m., the Tavera vehicle bearing Registration No. JK03C-5687 which was coming from Jammu was intercepted. The vehicle was being driven by the respondent Javaid who was accompanied by the respondent Abdul Hameed sitting as a co-passenger. The vehicle was searched by PW Koushal Kumar and PW P.N. Thussoo and on search, a plastic bag from under the middle seat of the Tavera vehicle was recovered. The bag contained 16 packets. The Intelligence Officer Naresh Kumar opened four packets out of 16 packets and extracted some quantity of black coloured material from each of the four packets. He mixed them together thoroughly and tested with the help of drug detection kit. It was found that the material seized was “charas”. The weight of all the packets was found to be 7.248 kgs. 4. He mixed them together thoroughly and tested with the help of drug detection kit. It was found that the material seized was “charas”. The weight of all the packets was found to be 7.248 kgs. 4. The requisite formalities in respect of seizure were complied with. The seizure memo was signed by the respondents as well as two independent witnesses. The respondents were apprehended and they were taken along with the seized material to the NCB office. The seized packets were opened and it was found that each packet contained nine challies of charas and were 144 in number. As is averred in the complaint, all the challies were broken and mixed together thoroughly. They were found to contain 'charas'. The entire material was weighed again and was found to be 6.300 gms. The Intelligence Officer Naresh Kumar took two samples of 24 gms each from 6.300 gms and sealed the same. The said samples and the remaining charas were sealed separately. The remaining charas and packing material of the charas was put into separate packets and marked as Lot-A and Lot-P respectively and the same were sealed by PW Kuldeep Sharma, Superintendent. 5. After completing the requisite formalities, a notice under section 57 of NDPS Act was given to the respondents and both made voluntary statements admitting that the contraband weighing 6.300 gms was recovered from them. They were arrested and the samples picked up were sent to CFSL, Delhi for chemical analysis. As per the report of CFSL, the samples were found positive for charas. On the basis of the complaint and the evidence collected by the appellant, the respondents were charged for the commission of offences under sections 8/20/60 NDPS Act to which they pleaded not guilty and claimed trial. 6. With a view to bring home the charge against the respondents, NCB examined PWs Ram Pal, Hayat Singh, Ghan Shyam, P.N. Thusoo, Koushal Kumar, Kuldeep Sharma, Hardeep, Naresh Kumar and Bhuwan Ram as witnesses. 7. On the conclusion of evidence led by the appellant/NCB, the matter was considered by the trial Court who vide its judgment dated 23.09.2014 acquitted the respondents of the charge for offences under sections 8/20/60 NDPS Act. It is this judgment of acquittal which is called in question before us in this appeal by the appellant. 8. 7. On the conclusion of evidence led by the appellant/NCB, the matter was considered by the trial Court who vide its judgment dated 23.09.2014 acquitted the respondents of the charge for offences under sections 8/20/60 NDPS Act. It is this judgment of acquittal which is called in question before us in this appeal by the appellant. 8. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the view taken by the trial Court on the evidence on record, is correct and unexceptionable. 9. The evidence on record led by the appellant before the trial Court is fraught with major contradictions. As is rightly concluded by the trial Court, the appellant has miserably failed to prove the recovery of any contraband from the possession of the respondents. Admittedly, the entire recovery proceedings, leading to seizure and sealing of the recovered material, are stated to have been witnessed by two independent witnesses, namely PWs Ram Pal and Ghanshyam. Both the witnesses have not supported the case of the appellant. 10. It has come in the testimony of PW Ram Pal that he along with PW Ghansyam was asked by the NCB officials to stop when they were crossing through the naka laid by them. The NCB did not tell them anything and took them to their office. The witness also admits that in their presence the NCB officials stopped one Tavera vehicle from where the respondents/accused came out. He also does not deny that the vehicle was searched in their presence. He, however, states that some articles were taken out from the vehicle, but does not know what articles were taken out. He states that the seizure memo was prepared by the NCB officials, but, what was written in the seizure memo, was not made known to him. Anyway, the witness, in view of his testimony not supporting the case of the appellant, was declared hostile and subjected to cross-examination. Nothing fruitful and to the benefit of the appellant came out in his cross examination. To the similar extent is the testimony of PW Ghanshyam, who is another independent witness to the seizure of contraband. 11. That apart, we find another glaring discrepancy in the matter of effecting seizure of the contraband. Nothing fruitful and to the benefit of the appellant came out in his cross examination. To the similar extent is the testimony of PW Ghanshyam, who is another independent witness to the seizure of contraband. 11. That apart, we find another glaring discrepancy in the matter of effecting seizure of the contraband. As is stated by the complainant's witnesses, the material was put into two different packets marked as Lot-A and Lot-P and seal was provided by the Superintendent, Kuldeep Sharma. It has nowhere come in the evidence that the samples which were picked up from the seized material or for that matter, the rest of the seized material, was resealed by the Executive Magistrate. It has also come on record that the samples were taken out of the seized material on 01.04.2012, one of which handed over to PW-2 Hayat Singh on 02.04.2012 and received in CFSL on 03.04.2012. However, it has not come in the evidence as to where was the sample kept on 01.04.2012, when it was taken out from the seized material. There is nothing in the evidence of the appellant that the seal which was put at the time of seizure, tallied with the specimen seal and was found intact by the CFSL. In the absence of resealing by the Executive Magistrate, the possibility of tampering with the sample which was sealed only with the seal of Superintendent of NCB by the officials of NCB themselves cannot be ruled out. In the absence of any material on record, we have no other option than to assume that on 01.04.2012, the sample sealed under the seal of Superintendent NCB remained with the NCB officials without having been deposited in the Malkhana or in other safe custody. 12. There is another contradiction which has remained without clarification from the complainant's witnesses, particularly the Intelligence Officer who conducted the entire proceedings. The sample which was taken from the seized material was found weighing 24 gms and the sample that was received by the CFSL was found weighing 21.1 gm and interestingly, the Intelligence Officer has not explained this variation. In the absence of any explanation in respect of this variation, the trial Court rightly doubted the complainant's version that it was the same sample that was taken on spot and sealed by the Intelligence Officer was sent to CFSL for examination. In the absence of any explanation in respect of this variation, the trial Court rightly doubted the complainant's version that it was the same sample that was taken on spot and sealed by the Intelligence Officer was sent to CFSL for examination. That apart, the manner in which the sample was taken out of the seized material leaves much to be desired. 13. Indisputably, the material seized consisted of 144 challies. The NCB broke all the challies and mixed them thoroughly and it was from this entire mixture weighing 6.300 gms, two samples of 25 gms each were taken and sealed. The manner in which the samples were collected by the NCB would make it highly doubtful as to whether the material in all the 144 challies was charas or only a few of them contained charas. This would raise another question as to whether the seizure of the contraband charas would fall in the 'small', 'intermediate' or 'commercial' quantity. 14. Viewed from any angle, we find that the manner in which the investigation has been conducted by the NCB and a sort of mess is created would leave one with no option but to give benefit of doubt to the respondents. 15. For the foregoing reasons as also the reasons given by the trial Court in support of the judgment impugned, we find no merit in this appeal and the same is, accordingly, dismissed. Trial Court record be sent back along with a copy of this judgment.