Jammu & Kashmir High Court
Kali Dass vs State And Ors. on 1 February, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRA No.50/2016
Date of Decision: 01.02.2019
Kali Dass vs. State of J&K and others.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the appellant(s) : Mr. Parimoksh Seth, Advocate.
For the respondent(s) : None.
(i) Whether to be reported in
Press, Journal/Media : Yes/No
(ii) Whether to be reported in
Journal/Digest : Yes/No
1. This Criminal Appeal is preferred by the appellant-Kali Dass against the impugned judgment passed by the Court of learned 1st Additional Sessions Judge, Jammu (Special Court under NDPS Act) dated 27.09.2016 in Special Case No. 39/2009, titled, State of J&K vs. Kali Dass, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of four years and a fine of Rs.40,000/- under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'. In default of payment of fine, he shall undergo further imprisonment for a period of one-fourth of the substantive sentence of imprisonment.
2. The case set up by the prosecution is that on 02.02.2009 at about 3:45 p.m. a Police party of Police Post Canal Road, Jammu during patrolling spotted one person with a bag in his hand. He was moving from canal head to Bhagwati Nagar, and on being frisked and checking of bag, a polythene CRA No.50/2016 Page 1 of 13 white bag containing one black and one white coloured bags, 500 parvon spas capsules contained in strips from white bag and 295 capsules of pravon spas were recovered from black bag. Accordingly, an FIR No. 18/2009 was registered under section 08/20/21 of NDPS Act by the Police Station, Nowabad, Jammu.
3. After conclusion of the investigation by the Police, challan for commission of offence under section 08/20/21 of NDPS Act was presented against the appellant before the Court of learned 1st Additional Sessions Judge, Jammu. The appellant denied the charges framed against him and claimed to be tried.
4. Prosecution in order to prove its case to bring home the charge against the appellant examined PW1-SI Kuldeep Raj, PW3-SGCT Rajinder Singh, PW 7-Rohit Koul and PW 8-Inspector Arun Jamwal as prosecution witnesses. On the other hand, the appellant has not led any evidence in support of his case.
5. Learned counsel for the appellant has challenged the impugned judgment stating that Section 50 of NDPS Act, which is mandatory in nature, has not been complied with. It is further stated that prosecution case also suffered from the infirmity that it has not been proved by the prosecution that Forensic Laboratory form was deposited with the malkhana and was given along with the sample to the Constable for taking it to Forensic Laboratory. It is stated that prosecution has not proved the link evidence between the taking of the sample and its subsequent dispatch to the FSL and the safe custody of the sample till the report was received and that the trial court has not appreciated the fact that the independent witnesses have not supported the case of the prosecution. The prosecution witnesses, who were produced to prove the seizure of the contraband articles, have not supported the prosecution and the seizure have not been proved and it was wrong on the CRA No.50/2016 Page 2 of 13 part of the learned trial court to still presume the involvement of the appellant in the alleged occurrence. It is stated that the impugned judgment has been passed by the trial court on conjecture and surmises without there being any clinching evidence against the appellant and has failed to appreciate the evidence in its correct perspective. On the basis of aforementioned submissions, learned counsel for the appellant has prayed that the instant appeal be allowed and the impugned judgment be set aside.
6. No one is present for respondents despite service.
7. I have heard learned counsel for the appellant and perused the record.
Before re-appreciating the evidence on record, in order to come to conclusion as to whether trial court was correct in convicting the appellant/accused, the brief resume of statements of prosecution witnesses produced before court below reads as under:-
PW-1 SI Kuldeep Raj in his evidence has stated that in the year 2009, he was incharge Police Post, Canal Road Jammu, and on 2nd of February 2009 he along with CTs Bittu Lal, Rajinder Singh and Sham Lal was on Patrolling to Bhagwati Nagar and while they were returning to police post at about 3:45 P.M. and on reaching near Irrigation Store, accused came from Canal Road to Bhagwati Nagar holding a bag in his hand. He was stopped and on being searched two polythene bags, one white and one black, were recovered from him, containing 500 capsules in strips and 295 open parvon spas capsules in each of the polythene bag and the accused could not produce any permission for possession of the capsules. He recorded a docket (Ext. P-1) and sent the same through Ct. Bittu Lal to SHO, Police Station Nowabad for registration of the case. On his cross- examination, he stated that Bhagwati Nagar falls within the jurisdiction of Police Post Canal Road. The accused had not tried to escape on seeing the police party. He had no prior information before occurrence with regard to CRA No.50/2016 Page 3 of 13 the fact that the accused was dealing in sale of capsules. Nothing more than two polythene bags had been recovered from the bags of accused. He admitted that at the time of personal search, no civilian had been called. Neither option of search had been sought from the accused. Both bags containing capsules had been seized vide a single seizure memo. The sealed material had not been sealed by him. He also denied to remember as to how many capsules had been taken out for sample.
PW3 Sgct Rajinder Singh has stated that on 02.02.2009, while being posted at Police Post, Canal Road, Jammu, he had accompanied Incharge Police Post for patrolling and at 3:45 P.M. when their party was returning from Bhagwati Nagar to Canal Road, accused was found near irrigation Store holding a leather bag on his shoulder, who was stopped by the Incharge team and searched. The bag was found containing two polythene bags, white and black, containing parvon spas capsules which were seized vide seizure memo (Ext.P-3).
On his cross examination he has stated that the capsules had not been sealed in his presence. They had been patrolling near Canal Road and many people were moving on that road. Many civilians were present; however, none of them was called by SHO or P/P Incharge.
PW7 Rohit Koul, Assistant Scientific Officer FSL has stated that he received two sealed packets vide letter No.1421-22/SDPO dated 04.02.2009 through Ct. Bittu Lal No.3021/J in connection with case FIR No.18/2009 under sections 8/21/22 NDPS Act of Police Station, Nowabad.
The exhibits were found sealed and re-sealed with 09 and 06 seals intact. The sealed packets were marked as Packets A-1 and B-1.
Exhibit A-1: One sealed packet enclosed within cloth bearing 9 seals out of which 3 seals tallied with the specimen seal impression forwarded by the CRA No.50/2016 Page 4 of 13 Naib-Tehsildar, Executive Magistrate Ist Class Jammu, and 6 seals tallied with the specimen seal impression forwarded by the SDPO City West Jammu. On opening it was found to contain two blister packets labeled as Parvon Spas besides other details. Each blister packets containing ten cherry read coloured Gelatin capsules. The blister packets were given exhibit Nos. K-113/09 and K-114/09 respectively.
Exhibit B-1: One sealed packet enclosed within cloth bearing 6 seals out of which two seals tallied with the specimen seal impression forwarded by the Naib Tehsildar Executive Magistrate Ist Class, Jammu and 4 seals tallied with the specimen seal impression forwarded by the SDPO City West Jammu. On opening it was found to contain twenty number of cherry red coloured Gelatin capsules labelled as Parvon Spas on both halve of Gelatin capsules in a paper packet. Keeping in view the texture of the material five randomly selected capsules from the exhibit Nos.K-113/09, K-114/09 and K-115/09 were found to contain some white colour powdered material which was subjected to various chemical tests and chromatographic examination and the result arrived at was as under:
Dextropropoxyphene hydrochloride, Dicyclomine hydrochloride and Paracetamol were found present in the exhibit Nos. K-113/09, K-114/09 and K-115/09.
As per literature Dextropropoxyphene is a narcotic analgesic; Dicyclomine is anti Cholinergic and Paracetamol is analgesic and antipyretic. On cross examination by defence counsel, he stated that he has not seen the receipt of the sample in the Court. He examined the sample 5/6 days before the date of submission of opinion i.e. 18.03.2009.
PW8-Inspector Arun Jamwal stated that on 02.02.2009 while being posted at Police Station, Nowabad, he had received a docket from ASI CRA No.50/2016 Page 5 of 13 Kuldeep Raj Incharge Police Post, Canal Road and a case FIR No.18/2009 was registered for commission of offences under sections 8/20/21 of NDPS Act and he investigated the matter himself. He went on spot, prepared the site plan, seizure memos, supurdnama and recorded statements of witnesses in terms of Section 161 Cr.P.C. The packets were sealed and as per his investigation, the accused had been found to have committed offences under section 08/20/21 of NDPS Act and the charge sheet was laid in the Court after obtaining FSL report.
On his cross-examination, he denied having knowledge as to when Incharge Police Post Canal Road had left for patrolling on the day of occurrence and who comprised patrolling party. He had proceeded on spot accompanied by Ct. Karamat Hussain, Ct. Nishant Sharma and Ct. Ajit Singh. ASI Kuldeep Raj, Ct. Rajinder Singh and SPO Sham Lal of P/P Canal Road were present at Bhagwati Nagar Road and he had prepared seizure memo of the seizure Memo prepared by Incharge Police Post, which had been drafted by his Reader. He had not produced the packet before any Executive Magistrate before sealing. The seized bag was of brown colour leather. Before sending the samples to FSL, the same had been re-sealed through Executive Magistrate. The statements of witnesses had been recorded by his Reader under his supervision. Site plan had been prepared as narrated by ASI Kuldeep Raj. The packets had been deposited on 2nd of February and sample was sent to FSL on 04 th February. It is stated that he cannot say as to whether option of search from the accused was taken or not. He denied that accused had been arrested by ASI from his house and that he had not seen the accused on spot. He denied that the accused had not been apprehended in his presence.CRA No.50/2016 Page 6 of 13
The appellant was examined under section 342 Cr.P.C. and he denied the incriminating materials produced by prosecution; but did not produce any evidence in defence.
8. Learned trial Court after appreciating the evidence on file has observed that the prosecution has succeeded to prove by leading cogent and credible evidence that the accused had kept in his possession 795 capsules of Parvon Spas and had contravened section 8 of NDPS Act, punishable under section 21 (b) of the Act and there is no evidence for the commission of offence punishable under section 20 was found and, accordingly, awarded a sentence of rigorous imprisonment of four years and fine of Rs. 40,000/- It has been further observed that in default of payment of fine, the convict shall undergo further imprisonment for a period of one-fourth of the substantive sentence of imprisonment.
9. I have given my thoughtful consideration to whole aspects of the matter and gone through the law on the subject.
10. If only oral statements are to be appreciated for convicting the accused, then one can say that there are enough materials against the accused persons, but in NDPS Act certain cardinal principles of law and mandatory safe guards provided in NDPS Act, have also to be considered.
11. In NDPS Act, it is not recovery of contraband effected is enough, the manner of conducting investigation is also relevant. In all NDPS Act cases investigation gets completed approximately at spot except to reseal the sample and obtaining of FSL report. All offences under NDPS are heinous in nature and provide severe punishment and so certain safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow. The legislatures while enacting NDPS Act have incorporated several provisions in Chapter-V of the NDPS Act governing the arrest, search and seizure to afford safeguards so that innocent CRA No.50/2016 Page 7 of 13 persons are not harassed and these mandatory provisions are complied with. The NDPS Act prescribes stringent punishment. Hence a balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizens from oppression and injustice on the other. This would mean that a balance must be struck in. The provisions contained in Chapter V, intended for providing certain checks on exercise of powers of the authority concerned, are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. In Mousam Singha Roy v. State of W.B. (2003) 12 SCC 377 : 2004 SCC (Cri) Supp 429, (SCC p. 394, para 28), it is held ;-
"28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused."
12. Now let us see whether the police have complied with the mandatory provisions during the investigation in the instant case or not.
13. First draw back in this case is that no FSL form on spot has been prepared and filled, which was very much necessary in order to rule out tampering of seals affixed on sample taken on spot. Law of investigation in criminal case especially in NDPS case, is clear that wherever incriminating articles are seized during investigation which are required to be sent to FSL, they are immediately sealed and deposited in Malkhana at police station till they are taken out there from to be sent to FSL for examination. Contemporaneously, with seizure and sealing of such article, impression of seal used on sealed articles, is put on the form commonly known as FSL Form. This is so done because at the time of analysis of sealed packet in laboratory, analyst concerned may be able to tally seal impression on the sealed packet with those appearing on FSL Form in order to rule out any possibility of tampering CRA No.50/2016 Page 8 of 13 of seals on sealed packet after seizure anywhere or in transit till receipt in laboratory. The importance of FSL Form thus, cannot be overemphasized, because, the document provides a valuable safeguard to an accused to ensure that no tampering has been done during the intervening period. The prosecution is required to rule out even a possibility of any such tampering and it is not required of an accused to prove that actual tampering did take place. This is based on fundamental and cardinal principle of Criminal Jurisprudence and that wherever there is a possibility of doubt, benefit thereof must accrue to an accused. FSL Form is a forwarding note accompanying a sample sent by police to Forensic Laboratory. Such a form contains the nature of crime, list of samples being sent for examination, nature of examination required and specimen of the seal affixed on the sample, besides, particulars of case. Although, FSL form is not a requirement under provisions of NDPS Act or Code of Criminal Procedure but it is rule of prudence having ripened into a Rule of Law lending assurance to the fact that sealed sample packet has not been tampered with by anybody. In present case contraband has been seized on 02.02.2009; contraband and sample were sealed on spot; but there is no evidence as to whether these were got resealed from Executive Magistrate 1st Class or not, as there is nether certificate of EMIC in file nor the said EMIC has been cited as witness in challan. There is also no evidence that from 2.2.2009 till sample was sent to FSL for examination, whether these articles were deposited in Malkhna of police or it remained in possession of I/O. Neither Mohrar/ I/C Malkhana of police station nor receipt of Malkhana register in this regard has been attached. Even during trial no effort was made to produce these material witnesses. So investigation in the case has not been conducted properly and according to law.
CRA No.50/2016 Page 9 of 1314. In AIR 2005 SC 1578 in case titled State of Rajasthan v. Gurmail Singh, it is held that, if Malkhana Register is not produced then prosecution case can be viewed doubtful. Relevant Para reads as under;-
"We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. 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. These loopholes in the Prosecution case have led the High Court to acquit the respondent.
We find no error in the judgment of the High Court. This appeal is, therefore, dismissed."
15. In 2011 (1) JKJ 751 in case titled Sudershan Bakaya and Anr. V. State, it has been held as under:-
"Filling of F.S.L. form at the spot is a very valuable safe-guard to ensure that the seal sample is not tampered with till its analysis by the F.S.L. The FSL form in all respect should not only be prepared by the officer making seizure at the place where the case property is seized from the accused, it should also be kept in safe custody by the SHO to whom the sample and the case property is handed over and then the same should accompany the sample to Chemical Examiner for tallying the seals. The idea behind taking such a precaution is to complete the material link in the prosecution case by eliminating the possibility of the sample being tampered with at any stage. One should not forget that the stringent provision is provided under the Act where the sentence is very severe. It cannot be less than 10 years R.I. and a fine of Rupees one lac. Therefore, it is CRA No.50/2016 Page 10 of 13 the duty of the Court to insist for the standard of proof beyond shadow of all reasonable doubt against the accused and to see that the investigation is not faulty at any stage. As observed hereinabove, the investigation in this case is very weak on vital issues."
16. From the perusal of initial docket Ext.P-1 on the basis of which FIR was lodged, it is evident that, on spot beside SI Kuldeep Raj, Cts Rajinder Singh, Sham Lal and Bittu Lal were also present. Even SHO/ I/O has stated that he had proceeded on spot accompanied by Ct. Karamat Hussain, Ct. Nishant Sharma and Ct. Ajit Singh. But out of these persons who were on spot, only PWs ASI Kuldeep Raj and Rajinder Singh have been produced. PWs Sham Lal and Bittu Lal have not been produced. Similarly persons who accompanied the SHO have not been cited as witnesses No reason has been given, as to why these witnesses were not produced or cited.
17. Illustration (g) appended to Section 114 of the Evidence Act reads thus:
"The Court may presume-
(a)-(f) ----
(g) that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it."
18. Further from the facts of the case, it is evident that ASI Kuldeep Raj who was patrolling on 02.02.2009 at about 3:45 p.m. along with other constables; he spotted one accused with a bag in his hand at canal head to Bhagwati Nagar, and on being frisked and checking of bag, a polythene white bag containing one black & one white colour bags, 500 parvon spas capsules contained in strips from white bag and 295 capsules of pravon spas were recovered from black bag. ASI then prepared seizure memo EXT-P-3 and send docket EXT-P -1 to police station for registration of FIR; on the basis of this docket FIR was lodged and I/O SHO Inspector Arun Jamwal came and CRA No.50/2016 Page 11 of 13 investigated the matter. He prepared seizure of seizure memo ( EXT-P-3) and sealed the contraband and sample; on this seizure memo PWs ASI Kuldeep Raj and Ct. Rajinder Singh have been shown as witnesses.
19. But during trial this seizure memo was neither put to PWs ASI Kuldeep Raj, Ct. Rajinder Singh and SHO the I/O; It has remained un-exhibited. Even site map has not been put to SHO for authentication; it has also not been exhibited. The prosecution has been conducted in most casual and unmindful manner. Seal-ring with which alleged contraband and sample sealed was not produced before court during trial; even superdar PW Chuni Parkash though cited as witness has not been produced during trial.
20. It has come in the statement of PW Rajinder Singh that they had been patrolling near Canal Road and many people were moving on that road. Many civilians were present; however, none of them was called by SHO or P/P Incharge; there was, thus, ample of opportunity for the police to associate independent witnesses in the seizure of the contraband but the police did not do so. Withholding of independent witnesses though available also makes the prosecution story doubtful.
21. In State of Punjab Vs Bhupinder Singh, 2001 (1) RCR (Crl) 356 (P&H), a Division Bench of Hon'ble High Court of Punjab and Haryana, held the case of prosecution doubtful on account of non-joining of an independent witness though the recovery was effected from a busy locality. In State of Punjab Vs Ram Chand 2001 (1) RCR (Crl) 817 (P&H), a Division Bench of Hon'ble High Court of Punjab and Haryana, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non- joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and CRA No.50/2016 Page 12 of 13 seizure, the case of the prosecution became highly doubtful. The trial court failed to take into consideration, this aspect of the matter, as a result whereof miscarriage of justice occasioned.
22. The courts while appreciating the evidence in criminal cases have to see the degree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there comes the slightest doubts regarding the involvement of accused then court should not go on convicting the accused.
23. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shifts, it is always on prosecution. The evidence collected during investigation that has been collected by I/O without following cardinal principles of investigation. Investigation has been conducted by I.O in unmindful manner, I/O was unaware of basic and cardinal principles for conducting the investigation in NDPS cases.
24. In view of what has been discussed above, I am of the considered opinion that prosecution has not proved its case beyond reasonable doubts. Hence, appellant
-accused person is entitled to benefit of doubts. Appeal is accordingly allowed and judgment of conviction/sentences passed against appellant is set aside. Appellant is discharged from his bail bond.
( Sanjay Kumar Gupta ) Judge Jammu:
01.02.2019 Karam Chand CRA No.50/2016 Page 13 of 13