Jammu & Kashmir High Court
State vs Joginder Singh & Anr on 31 March, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CONCR No. 18/2016
SLA No. 18/2016
Reserved on 22.03.2022.
Pronounced on 31 .03.2022.
State ..... appellant (s)
Through :- Mr. Amit Gupta AAG
V/s
Joginder Singh & Anr .....Respondent(s)
Through :- None
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE
JUDGMENT
Sanjeev Kumar, J 1 This is an application by the State (Now Union Territory of Jammu & Kashmir) seeking condonation of delay of 311 days in filing the application seeking leave to appeal to assail the judgment of acquittal dated 17.12.2014 passed by the learned Additional Sessions Judge, Jammu ["trial Court]" in case titled 'State vs. Joginder Singh & Anr, whereby the trial Court has acquitted the respondents-accused from the charge of offences under Sections 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["NDPS Act"], in FIR No.133/2009 of Police Station, Gangyal. 2 Before we advert to the explanation tendered by the applicant/appellant for inordinate delay in filing the leave application, it would 2 CONCR No. 18/2016 SLA No. 18/2016 be appropriate to refer to the merits of the appeal, proposed to be filed by the applicant against the judgment of acquittal.
3. The case of the prosecution as was put up before the trial Court is that on 26.10.2009, at about 4 pm, a Naka party of Police Station, Gangyal intercepted the respondents/accused at Kunjwani. On their search, 1600 capsules of „Parvon Spas‟ were recovered from the possession of respondent Joginder Singh, whereas 3500 capsules of „Parvon Spas‟ were recovered from the possession of respondent Yash Pal. PW Inspector Sunil Singh Jasrotia, SHO Police Station, Gangyal, who was present on spot, prepared a docket in this regard and sent it to the said Police Station for registration of FIR. Accordingly, FIR No. 133/2009 for offences under Sections 8/21 NDPS Act was registered in the Police Station, Gangyal and the investigation was entrusted to PW Rattan Singh, S.I (I.O). The I.O went on spot and after spot inspection, prepared the site plan, seized and sealed the recovered capsules after taking out samples. The parcels of samples were got resealed by the Executive Magistrate and sent to FSL, Jammu for chemical analysis. Statements of witnesses were recorded. Upon conclusion of the investigation, the charge-sheet was laid before the Court of learned Principal Sessions Judge, Jammu on 17.12.2009 who transferred the same to the trial Court for disposal under law. The respondents/accused were charged for offence under Section 8/21 NDPS Act by the trial Court vide its order dated 24.04.2010. The charge was read over and explained to them to which the respondents/accused did not plead guilty and claimed to be tried.
4. With a view to sustain the charge against the respondents/accused, the prosecution adduced the evidence of PWs Shamsher Kumar, Parveen 3 CONCR No. 18/2016 SLA No. 18/2016 Kumar, Joginder Singh, Sudesh Kumar, Satinder Sharma, Sunil Jasrotia, Pawan Abrol, Shailo Ram and Rattan Singh as witnesses. The incriminating circumstances appearing in the prosecution evidence were put to the respondents/accused, who denied the allegation and chose not to lead any evidence in defence.
5 The trial Court, after appreciating the evidence on record and having heard the arguments addressed by the prosecution and the defence, came to the conclusion that the prosecution has failed to prove its case beyond shadow of doubt. Consequently, vide judgment impugned, the trial Court acquitted the respondents/accused of the charge framed against them. It is this judgment, which is sought to be assailed by the applicant/appellant.
6. The appeal, besides being highly belated, also lacks merit. It has come on record that though, a number of civilians were present on spot, yet none of them was associated as witness with the investigation. Therefore, non association of civilians with the investigation makes the prosecution story doubtful. That apart, as per evidence adduced by the prosecution, the seized capsules were packed in a parcel after taking out sample. The sample was packed, however, in a separate parcel. Both the parcels were sealed and a ring was used as a mark of identification on the seals affixed on the parcels. The said ring was, however, kept by the I.O with himself after marking seals Instead of preparing spurdnama of ring and entrusting it to independent person, the same was kept by the I.O with himself. The capsules seized were produced in the trial Court unpacked, whereas as per evidence on record, the same were packed in a parcel and sealed. Therefore, there are serious discrepancies in the 4 CONCR No. 18/2016 SLA No. 18/2016 evidence of the prosecution. The said discrepancies, in our view, make the prosecution story doubtful.
7 The recovery of contraband in the instant case was effected on 26.10.2009 and the sample was lifted on the same day on spot. There was no evidence as to where the sealed packet of sample was kept after it was brought to the Police Station concerned from the spot. There is no evidence led to prove that seized contraband and sample were kept in Malkhana of Police Station concerned. The prosecution, therefore, has failed to prove the safe custody of the sample after it was sealed till it was delivered in FSL.
8. Apart from the aforesaid flaws, we also find that the provisions of Section 52A (2) of NDPS Act which provide for preparation of an inventory of Narcotic Drugs and Psychotropic Substances containing details like description, quality, quantity, mode of packing, marks, numbers and such other identifying particulars etc. and forwarding the same to the officer of the nearest police station or to the officer empowered under Section 53 of NDPS Act and making an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared; taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying photographs as true, have not been complied with, as in the instant case no such inventory was prepared, nor any application was made to the Magistrate as required.
09. Otherwise also, the explanation tendered by the applicant that delay in filing the leave application has occasioned on account of the fact that the applicant/State, after obtaining a copy of the judgment of acquittal, referred the same to the Law Department seeking permission to file Criminal Acquittal 5 CONCR No. 18/2016 SLA No. 18/2016 Appeal and it was only after the Law Department granted sanction, the same along with applications seeking leave to file appeal and condonation of delay was filed before this Court, cannot, by any stretch of reasoning, be held to be a sufficient cause which has prevented the applicant to file the application seeking leave to file appeal in time. That apart, having regard to the nature of evidence led by the prosecution to prove its case before the trial Court, we are not inclined to grant leave to file acquittal appeal against the impugned judgment.
15. Accordingly, the application for condonation of delay as also application seeking leave to appeal against the impugned judgment of acquittal are dismissed.
(M.A.CHOWDHARY ) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
31 .03.2022
Sanjeev
Whether order is speaking:Yes
Whether order is reportable:Yes/No