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2023 DIGILAW 544 (JK)

State of Jammu & Kashmir v. Krishan Ji Raina

2023-09-21

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : 1. This acquittal appeal by the State of Jammu and Kashmir (now Union Territory of Jammu & Kashmir) is directed against judgment dated 20th August, 2010 passed by the learned Special Judge (NDPS Act), Jammu [“the trial Court”] in file No. 282-A/Challan in case titled State v. Krishan Ji Raina, whereby the trial Court has acquitted the respondent- accused of the charge under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”]. 2. Before we advert to the grounds of challenge urged by Mr. Amit Gupta, learned AAG appearing for the appellant, we deem it appropriate to take note of the prosecution case. 3. On 24th January, 1998, during routine checking of vehicles at Canal Road, Jammu, Incharge Police Post, Canal Road, Jammu intercepted a Scooter bearing Registration No. JK02E-7443, which was being driven by the respondent-accused. During search of the Scooter, charas weighing one kilogram wrapped in plastic bag was recovered, from which the Investigating officer took 50 gms as sample. The packets of the seized charas and sample were prepared on spot. The respondent-accused was arrested and interrogated in Police Station, Nowabad. The respondent-accused made a disclosure statement that he had also concealed another half kilogram of charas in his residential house in Gujjar Nagar, Jammu. On this statement of disclosure, said half kilogram of charas was also recovered and 20 gms out of the seized charas was also taken out as sample and sealed on spot. The stamp used for sealing of the packets was placed on the supurdnama of PW-Roshan Lal and samples taken out of the seized material were SENT to Director, FSL, Jammu for chemical examination by Dy. SP City West, Jammu vide his communication dated 31.01.1998. 4. After completion of all the requisite formalities, challan against the respondent-accused was presented in the trial Court. The trial Court, after hearing the prosecution and the respondent-accused, framed charge on 23.05.1998 under section 20 of NDPS Act. The respondent-accused pleaded not guilty and claimed trial. 5. In order to prove the guilt of the respondent-accused, the prosecution cited eleven witnesses but examined PW-Sham Lal, PW-Hari Chand, PW- Taranjit Singh, PW-A.R. Shakoor, PW-Sanjay Kumar, PW-Inderjeet Bhagat and Dy. S.P. Mohd. Hussain Malik as prosecution witnesses. The report prepared by PW-6 A.G. Bhat and countersigned by Dr. Jagdish Singh of FSL was also tendered. 5. In order to prove the guilt of the respondent-accused, the prosecution cited eleven witnesses but examined PW-Sham Lal, PW-Hari Chand, PW- Taranjit Singh, PW-A.R. Shakoor, PW-Sanjay Kumar, PW-Inderjeet Bhagat and Dy. S.P. Mohd. Hussain Malik as prosecution witnesses. The report prepared by PW-6 A.G. Bhat and countersigned by Dr. Jagdish Singh of FSL was also tendered. On conclusion of the prosecution evidence, incriminating material/evidence was put to the respondent-accused and his statement under section 342 Cr.P.C was recorded. The respondent-accused pleaded innocence and denied his involvement in the crime. He, however, chose not to examine any witness in defence. 6. The trial Court after hearing the prosecution and counsel for the defence, came to the conclusion that the prosecution had miserably failed to prove the guilt of the respondent-accused beyond reasonable shadow of doubt. The trial Court found two major discrepancies fatal to the prosecution case. The trial Court found that the FSL report, which was relied upon by the prosecution to demonstrate that the seized contraband was charas, was not admissible in evidence in the absence of examination of its author. The trial Court also found variation in the weight of the samples sealed by the Investigating Officer and the samples which were received in the FSL. Since there was no explanation tendered by any of the prosecution witnesses including the I.O., as such, the trial Court came to the conclusion that possibly samples taken out from the seized material were not sent to the FSL for examination. Having doubted the entire prosecution case, the trial Court acquitted the respondent-accused of the charge and dismissed the challan in terms of the judgment impugned in this appeal. 7. Mr. Amit Gupta, learned AAG assails the impugned judgment on the ground that the trial Court has not appreciated the correct position of law, in that, in terms of Section 510 of the State Cr.P.C. (Section 293 of the Central Cr.P.C.), FSL report is admissible in evidence even in absence of examination of its author provided it is tendered in evidence by one or more prosecution witnesses. He further submits that the trial Court could not appreciate that the charas is a commodity having water content and, therefore, there is nothing surprising, if 2 to 3 gms per 10 gms of charas is water content subject to evaporation due to weather conditions. 8. He further submits that the trial Court could not appreciate that the charas is a commodity having water content and, therefore, there is nothing surprising, if 2 to 3 gms per 10 gms of charas is water content subject to evaporation due to weather conditions. 8. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the trial Court is correct in law and on facts and, therefore, unchallengeable. We, however, agree with Mr. Amit Gupta, learned AAG, that in terms of Section 510 of State Cr.P.C., which is in pari materia with Section 293 of Central Cr.P.C., report of the chemical examiner or any other designated officer mentioned therein tendered in evidence during trial is admissible in evidence even in absence of examination of the author thereof. This, however, is subject to the condition that same is properly tendered in evidence by one or more prosecution witnesses. 9. In the instant case, we do not find any evidence on record which would demonstrate that the person who delivered the samples to the FSL or the person who received the same after its examination have been examined and have tendered the report of the FSL in evidence. Position of law in this regard is well settled. 10. So far as variations in the weight of samples sent to the FSL and the weight of samples received at FSL is concerned, the same puts the entire prosecution case in the realm of doubt. Indisputably, samples which were taken out from the seized contraband were weighed 50 gms and 20 gms respectively. However, when these were received in FSL they were found weighing 40 gms and 14 gms respectively. This variation has not been explained by the Investigating Officer during his testimony before the trial Court. We are, therefore, in agreement with the trial Court that the prosecution in this case has miserably failed to prove its case against the respondent-accused beyond any reasonable doubt. 11. For all these reasons, we find no merit in this appeal and the same is, accordingly, dismissed.