State Of J&K vs < on 14 September, 2022

[Cites 8, Cited by 0]

Jammu & Kashmir High Court

State Of J&K vs < on 14 September, 2022

1. This criminal acquittal appeal arises out of the judgment dated 16.02.2012 passed by the court of Principal Sessions Judge, Rajouri (hereinafter to be referred as the trial court) in file No. 21/Sessions, titled, State vs. Mohd. Naseer and others, arising out of FIR No. 357/2010 of Police Station, Rajouri, whereby the respondents have been acquitted of the charges for commission of offence under sections 8, 21 and 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the Act).

2. The judgment has been assailed on the ground that the learned trial court has failed to appreciate the prosecution evidence in its true and correct perspective and the conclusion drawn by the learned trial court is against the weight of the evidence brought on record by the prosecution.

3. Mr. R. S. Jamwal, learned AAG appearing for the appellant vehemently argued that the prosecution had proved the recovery of contraband from the respondents by leading cogent evidence and the opinion of the expert also 2 CRAA No. 46/2012 substantiated that the recovered material is narcotics substance, therefore, the judgment impugned is not sustainable in the eyes of law.

4. Heard and perused the record.

5. The case projected by the prosecution is that a source information was received by In-charge Police Station, Rajouri on 25.09.2010 that one bus bearing registration No. JK02H 3869 is coming from Jammu to Rajouri and the intoxicant drugs are being brought in the said bus to Rajouri. After receipt of this information, In-charge Police Station, Rajouri along with other police officials laid a naka at Panja Chowk Rajouri. At around 1.00 AM, the said bus reached the barricade but it crossed the barricade in spite of fact that the driver was asked to stop the bus. The police party chased the bus and it was intercepted at some distance. The persons travelling in the bus were informed that they are required to be searched along with the bus. The driver and the passengers in the vehicle stated that they wanted to be searched in presence of Gazetted Police Officer. Dy.SP was summoned on spot and persons sitting in the bus were enquired about their whereabouts. The driver of the bus disclosed his name as Mohd. Naseer, respondent No. 1 herein and brought out 600 Paravon Spas capsules from the tool box of the vehicle. The other accused in the bus produced three bags before the Police party and from each bag 100 bottles of 100ml each Corex were recovered. The capsules and Corex were seized on spot and a docket was sent to Police Station for registration of the FIR and on receipt of the docket, FIR bearing No. 357/2010 for commission of offence under sections 8, 21 and 22 of the Act was registered against the respondents. Investigation of the case was handed over to ASI, Tasaduq Hussain. During the course of investigation, samples were extracted from seized drugs and were sent to FSL for 3 CRAA No. 46/2012 examination. After receipt of the FSL report and completion of the investigation, charge sheet was filed before the trial court. Vide order dated 07.02.2011, the respondents were charged for commission of offence under sections 8, 21 and 22 of the Act. The prosecution had cited as many as 13 witnesses out of which 11 witnesses were examined. The accused- respondents did not lead any evidence in their defence and the learned trial court after hearing both the parties, vide judgment impugned acquitted the respondents.

6. In an appeal against acquittal, this Court has to examine as to whether the view taken by the learned trial court, while acquitting the respondents, is plausible/possible one and if it is so, then no interference with the judgment of acquittal is warranted. In order to examine the validity of the judgment impugned, it is imperative to have a brief resume of relevant portion of the prosecution evidence.

7. PW-1 Jan Mohd stated that on 25.09.2010, he was posted as In-charge Police Station, Rajouri. During patrol duty, he received information that a bus was on its way from Jammu to Rajouri, in which some narcotic substances were being transported. At about 1.00 AM, the bus reached the barricade at Panja Chowk. The driver was asked to stop the bus he did not stop the bus and thereafter, the vehicle was chased and intercepted. The passengers sitting in the vehicle were informed that they were to be searched. They stated that their search may be conducted in presence of a Gazetted Police Officer. Dy.SP was summoned on spot. 600 capsules were produced by respondent No. 1 before the Police Party, same were seized. Similarly, accused 2 to 4 also produced 100 bottles of Corex each before the Police Party and they were also seized. Paper work was completed and 4 CRAA No. 46/2012 thereafter investigation was handed over to ASI Tasaduq Hussain. He proved the notice regarding the search (ExtPW JM), seizure memo of capsules (ExtPW JM/1), seizure memo of Corex (ExtPW JM2), ExtPW JM3 and ExtPW JM4. He also proved the seizure memo of Bus (ExtPW JM5) and docket (ExtPW JM6) for registration of FIR. In cross examination, he stated that information that was received by him was neither recorded by him nor was the same passed on to the immediate officers. The seized contraband was not shown to him in the court. There were three bags in the possession of the accused. Hundred bottles of Corex were recovered from each bag. He had prepared the seizure memos before Investigating Officer, who reached on spot. He had kept the vacant space for mentioning the number of FIR and after Investigating Officer arrived, he mentioned the number of FIR in the same.

8. PW-2 Nanak Chand stated that on 25.09.2010, a barricade was laid at Panja Chowk, Rajouri that was headed by SHO Jan Mohd. At about 1.00 AM, a bus bearing registration No. JK02H 3869 came from Jammu. The driver of the bus rushed across the naka, but after a chase, the vehicle was stopped at Gujjar Mandi Rajouri. Dy. S. P was summoned on spot. On search of the bus, three bags were recovered from the tool box. 100 bottles of Corex was recovered from each of the bag. There was one more box, in which 600 intoxicant capsules were found. The recovered material was seized through different seizure memos. He also proved the seizure memos ExtPW JM1, ExtPW JM2, ExtPW JM3, ExtPW JM4 and ExtPW JM5. During cross examination, he stated that the vehicle was coming from Kala Kote. The drugs were recovered from tool box of the roof of the vehicle. 5 CRAA No. 46/2012

9. PW-3 Yash Paul stated that on 24.09.2010 he was on naka duty at Panja Chowk, Rajouri along with other police officials. Bus No. 3869 reached at the naka point at 1 AM. Besides accused, some other persons were also inside the bus. Accused No. 1 wanted his search to be conducted in presence of a senior officer. Dy.SP was called on spot. The bus was searched. Three boxes were recovered from the possession of accused No. 1. They were containing 600 capsules. Three bags were recovered from other accused from which 20-20 bottles of Corex from each bag were recovered. Seizures were prepared on spot. He proved seizure memos ExtPW JM, ExtPW JM1, ExtPW JM2, Ext PW JM3 and ExtPW JM4 and. In cross examination, he stated that whole of the material was recovered from inside the bus. Besides him, other police officials i.e. Nanak Chand, Vinod Kumar, Satish also signed those documents.

10. PW-5 Ghulam Rasool stated that on 24.09.2010 he was part of naka police party that had laid a naka at Panja Chowk under the supervision of SHO, Jan Mohd. A bus bearing registration No. JK02H 3869 crossed the naka point but was intercepted at Gujjar Mandi. Dy.SP was called on spot and the search of the vehicle was conducted. Three bags were recovered from the tool box of the vehicle in which 600 paravon spas capsules were recovered from accused No. 1, whereas 300 bottles of Corex were recovered from rest of the accused. In cross examination, he stated that bus was intercepted at 1 AM and naka was laid in front of police lines. He had recovered the three bags from the roof top of the vehicle. It is not mentioned in his statement recorded under section 161 Cr.P.C. that three bags were recovered from the roof of the bus.

6 CRAA No. 46/2012

11. PW-6 Shafiq Ahmed stated that on 24.09.2010 he was on patrol duty along with SHO Kewal Gupta, Ghulam Rasool and Nanak Chand. SHO received information from some reliable source that a bus was on its way from Jammu to Rajouri in which narcotic drugs were being transported. On receiving this information, barricade was laid at Panja Chowk, Rajouri. At about 1200 in the mid night, the bus came but crossed the naka and after a chase, it was intercepted at Gujjar Mandi. There were three persons alongwith the driver in the said vehicle. They were given the option of search and they exercised the option of being searched in presence of a Gazetted Police officer. So Dy.SP, Headquarter was called on spot and accused were searched. 600 Paravon Spas capsules were recovered from accused No. 1 and 100 bottles of Corex were recovered from each of the other accused. During cross examination, he stated that that the vehicle came from Kalakote and entire proceedings on spot were conducted by Kewal Gupta, SHO of Police Station Rajouri. PW Ghulam Rasool brought out the bag from the rooftop of the bus and the narcotic substances were recovered from the said bag.

12. PW-7 Mohd Saddiq proved the seizure memo of ring handed over to ASI Harbhajan Singh, In-charge Malkhana. Supurdnama (ExTP 7) was prepared.

13. PW-8 Mohd. Sayeed stated that he is witness to the supurdnama of the bus (ExTP-8/1).

14. PW-9 Raj Kumar Koul proved the certificate issued by the Assistant Controller Drugs that no drug license has been issued in favour of the accused persons in terms of Drugs and Cosmetics Act (ExtP-9). 7 CRAA No. 46/2012

15. PW-10 Abdul Qayoom stated that he is witness to the resealing of the packets and he issued the authority letter in the name of Director FSL, Jammu vide dated 04.10.2010.

16. PW-11 Rohit Koul stated that four sealed packets were received in FSL, Jammu for examination of the contents. The packets were marked as A to D. On examination of the contents of packets, the capsules were found to contain Dextroproproxyphene hydrochloride etc while as the sample of Corex were found to be Chlorpheniramine maleate and Codeine phosphate, Narcotic substances were present. He proved the FSL report (Ext.PW RK).

17. PW-12 Tasaduq Hussain stated that on 24 th/25th September, 2010 investigation of the instant case was handed over to him. He went on spot, recorded the statements of witnesses. The vehicle bearing registration No. JK02H 3869 was seized. Samples were extracted from the recovered contraband and dispatched to FSL for chemical examination. A certificate was also obtained from Assistant Drug Controller. The FSL report was obtained and the accused were found involved in commission of offence under sections 8, 21 and 22 of the Act. In cross examination, he stated that search of the accused was conducted before he reached on spot. The recovered contraband was handed over to him. The contraband was recovered on 25.09.2010 and was sent to FSL on 05.10.2010 for chemical examination through ASI, Som Dutt. The contraband remained in Malkhana during the intervening period. He admitted that In-charge Malkhana is not a witness in the case nor has any record of Malkhana been produced. He cannot say as to why the samples were not delivered to FSL from 05.10.2010 to 12.10.2010.

8 CRAA No. 46/2012

18. The prosecution version is that the respondent No. 1 produced 600 paravon spas capsules which he brought out from the tool box of the bus and 100 bottles of 100 ml. each were recovered from the possession of other respondents. There is different version of different witnesses with regard to the recovery of the contraband. PW Shafiq Ahmed stated that 600 capsules were recovered from respondent No. 1 and 100 bottles of Corex each were recovered from other respondents. In cross examination, he stated that PW Ghulam Rasool brought the bags from the roof top of the bus and narcotic substances were recovered in the same. PW Ghulam Rasool has stated that three bags were recovered from tool box of the bus in which 600 Paravon Spas capsules and 300 bottles of Corex were found. He further stated that 600 capsules were recovered from respondent No. 1 and Corex bottles were recovered from rest of the respondents. PW Nanak Chand states that three boxes were recovered from tool box of the bus in which 100 bottles were recovered from each of the box. He further stated that there was also one bag which was having 600 paravon spas capsules. PW Jan Mohd stated that 600 capsules were brought by accused No. 1 from the tool box and bottles of Corex were produced by rest of the accused. He is silent as to whether the bottles were recovered inside the vehicle or they were lying with the respondent Nos. 2 to 4. PW Yash Pal further says that three bags were recovered from accused No. 1 and three bags were recovered from other accused. Thus, we find there are different versions of different witnesses with regard to the recovery of the contraband. There is no consistency in the statement of the witnesses with regard to the recovery. As the punishment provided by NDPS is harsh, so the prosecution is under legal obligation to prove the recovery beyond any shadow of reasonable doubt. In view of the 9 CRAA No. 46/2012 wavering evidence led by prosecution it would not be safe to place reliance upon the witnesses examined by the prosecution to prove recovery.

19. The prosecution has not been able to prove by cogent evidence as to whether the narcotic drugs allegedly recovered from the bus was kept by the respondents inside or on roof top of the vehicle. Needless to say that the vehicle in question is a commercial bus and before presumption under section 54 of NDPS is attracted, the prosecution is under obligation to prove the conscious possession of the contraband by the accused but the prosecution has miserably failed to do so. There are different versions also with regard to the place from where the bus was coming to Rajouri. PW Mohd. Shafiq stated that the bus was coming from Rajouri side and PW Nanak Chand says that the vehicle was coming from Jammu and again stated that it came from Kalakote side. PW Jan Mohd. says that the vehicle came from Nowshera side and this also casts a doubt in the prosecution story. Also, there is absolutely non-compliance of section 42 of the Act that made obligatory on the part of the Police Officer or other officers empowered in this behalf by the Government to take down the information received from any source in writing in respect of any narcotic drug, psychotropic substance or controlled substance and after recording the information, he has to send a copy to his superior officer within 72 hours. PW Jan Mohd has categorically stated that he neither recorded any information nor conveyed to the superior officer.

20. More so, we find that there is no evidence on record with regard to the safe custody of samples after they were extracted from the drugs recovered on 25.09.2010. PW Tasaduq Hussain has categorically admitted that he has not cited In-charge Malakhana as witness and has also not produced the 10 CRAA No. 46/2012 malakhana record. The samples were delivered to ASI on 05.10.2010 who delivered the same in FSL on 12.10.2010. It was obligatory on the part of the Investigating Officer to establish by cogent evidence that after the recovery was effected and the samples were extracted, they were kept in safe custody so as to establish that the samples extracted from seized material only were sent to FSL for chemical examination.

21. We have gone through the judgment passed by the learned trial court. The trial court has meticulously considered all the aspects of the case and in view of the evidence led by the prosecution, the learned trial court had no other option but to acquit the accused/respondents.

22. In view of all what has been discussed above, we do not find any reason whatsoever to interfere with the well reasoned judgment of acquittal recorded by the learned trial court, as such, the present appeal is found to be misconceived and is accordingly, dismissed.

23. Record of the learned trial court be sent back along with a copy of this judgment.

                                 (RAJESH SEKHRI)                  (RAJNESH OSWAL)
                                     JUDGE                             JUDGE
JAMMU
14.09.2022
Rakesh
                                   Whether the order is speaking:     Yes/No
                                   Whether the order is reportable:   Yes/No

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Jammu & Kashmir High Court