Jammu & Kashmir High Court
State Of J&K vs Sat Paul And Another on 9 June, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar, Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CrlA (AD) No. 30/2022
Reserved on 07.06.2023.
Pronounced on 09 .06.2023.
State of J&K ..... appellant (s)
Through :- Mr. Dewakar Sharma Dy.AG
V/s
Sat Paul and another .....Respondent(s)
Through :- None
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGEMENT
Sanjeev Kumar, J.
1 The erstwhile State of Jammu and Kashmir (Now UT of Jammu and Kashmir) is in appeal against the judgment of acquittal dated 15.09.2017 passed by the learned Principal Sessions Judge, Udhampur (hereinafter referred to as the 'trial Court') in file No. 23/Spl. Challan titled 'State vs. Sat Paul and another, whereby the trial Court has acquitted respondent No.2 Mohd Dilshad of the charges under Sections 8/15 of Narcotic Drugs and Psychotropic Substances Act 1985, ["NDPS Act"]. Regarding respondent No.1, he had absconded during trial and, therefore, proceeded under Section 512 Cr.PC. 2 With a view to appreciate the grounds of challenge urged by the learned counsel appearing for the appellant to assail the judgment of acquittal in this appeal, it would be necessary to first briefly notice the case of prosecution, as was put up before the trial Court.
23 On 11.01.2015, Head Constable Mohd Muzaffar along with other police officials, namely SPO Vijay Kumar, Kailasho Devi and CRPF Personnel of 84 Bn. were on checking and frisking duty at SCP Karal Nallah, Kud and during checking at around 1700 hours, the CRPF officials halted JKSRTC Bus bearing registration No. JK01Y-0554 at the naka point. The passengers were asked to come down from the Bus along with their luggage for checking. The passengers alighted from the Bus and during frisking and checking, the respondents/accused persons were found carrying three covers of the quilt which were tied with a rope. When the said covers were checked, Bhuki, wrapped in polythene bags, was found in them and on enquiry, the respondents/ accused persons disclosed their names. They were questioned about the recovered contraband, but they disowned it. Accordingly, a docket was sent to the Police Station, Kud for registration of FIR, pursuant to which, FIR No. 04/2015 for commission of offences under Sections 8/15 of NDPS Act was registered at Police Station Kud.
4 The Investigating Officer, after completion of the investigation and on the basis of evidence collected by him, found the commission of offences under sections 8/15 NDPS Act made out against the accused persons and, accordingly, the In-charge Police Station Kud, after recording his satisfaction with the investigation conducted by the concerned Investigating Officer, presented the challan before the trial Court.
5. In terms of order dated 04.03.2015 of the learned trial Court, the respondents/accused were charged for offences under Sections 8/15 NDPS Act to which they pleaded not guilty. Accordingly, the prosecution was directed to lead evidence in support of the charge. The prosecution examined PWs Mohd 3 Ismail Bhat, HC Mohd Muzaffar, SPO Vijay Kumar, Romesh Kumar Bhat, Yash Paul Singh, Pawan Abrol, FSL Expert, Sukanta Kumar Barik, Sanjay Dogra and PSI Ravi Kumar, in support of its case. After closure of prosecution evidence, the statements of the accused under Section 342 Cr.PC were recorded and the incriminating material appearing in the prosecution evidence was put to them. The accused denied their complicity in the commission of alleged crime. It is pertinent to mention here that during trial, accused No.1 Sat Paul had absconded and proceedings under Section 512 CrPC have been initiated and a general warrant of arrest has been issued against him which till date has remained unexecuted. Thereafter, respondent No.2 was directed to lead evidence in defence, however, no evidence was led in defence. 6 The learned trial Court, after analyzing the prosecution evidence and after hearing the parties, passed the impugned judgment thereby acquitting respondent No.2 of the charges.
7. The judgment of acquittal passed by the trial Court has been assailed by the appellant-State on the grounds that the trial Court has failed to appreciate the prosecution evidence; that there was sufficient material on record to convict respondent No.2, but the trial Court has not appreciated the law and facts of the case in proper perspective; that the prosecution had established the case against respondent No.2 by adducing documentary as well as oral evidence and that the trial Court has failed to appreciate the prosecution evidence correctly. It is submitted that important pieces of evidence have been ignored by the trial Court. It is further submitted that the learned trial Court has taken a hyper-technical approach while acquitting the respondent/accused 4 by giving too much importance to minor contradictions appearing in the evidence.
8. We have heard learned counsel for the appellant and perused the impugned judgment, the grounds of appeal and the evidence on record.
9. It has been argued by learned counsel for the appellant that the prosecution has succeeded in proving the charge against the respondent/accused by leading cogent and convincing evidence. It has been contended that the trial Court has failed to appreciate the prosecution evidence in its true and correct perspective.
10. From a perusal of the record, it transpires that, in order to prove the presence of witnesses, who are allegedly the members of the police naka party and CRPF at the scene of occurrence, the prosecution have annexed with the challan a copy of the Roznamcha report No. 10 dated 11.01.2005. However, during trial, the prosecution has not made any effort to prove the genuineness of the copy of Roznamcha report so that presence of aforesaid witnesses at the place of occurrence at the relevant time could be established. Non production of original record has definitely weakened the prosecution case.
11 PW-6 was the conductor and PW 4 was the driver of the vehicle in question which was intercepted by the naka party on the date of occurrence. The accused were allegedly travelling in the said vehicle. PW-4, the driver of the vehicle has not been examined by the prosecution. PW 6, the conductor of the Bus in question, has been examined. The vehicle was JKSRTC bus and the driver of the Bus was required to maintain a log book and must have been 5 issued a challan at the time of departure by the concerned SRTC official showing the journey carried out by the said vehicle on a particular day and the names of driver and conductor of the Bus. No documentary evidence relating to deployment of the said Bus has been brought on record. The driver of the bus could have thrown some light in this regard and at least proved that PW 6, in fact, was the conductor of the bus with him. But, neither any documentary evidence, nor the driver of the bus has been produced and examined in order to bring any reliable evidence on record to prove that PW 6, in fact, was travelling in the bus as conductor on the date of occurrence.
12 Another glaring infirmity in the prosecution case is that the samples of 250 gms each were taken from the recovered contraband and as per the seizure memo, three packets. A, B & C were the samples taken from the recovered contraband. These packets were allegedly deposited in the Malkhana of Police Station concerned vide report No. 14 Roznamcha dated 11.01.2015. PW-5 has been cited as witness to prove that these packets remained in safe custody in Malkhana till the time they were deposisted in the FSL. Interestingly, PW-5 has not been examined by the prosecution and, therefore, the safe custody of the samples is also rendered highly doubtful and the same would be fatal to the prosecution case. PW 10, the Executive Magistrate who has allegedly resealed the packets has also not been examined by the prosecution and, thus, the resealing process has remained unsubstantiated and unproved. Prosecution witness namely Sukant Kumar Barik in his testimony in the Court has stated that when the the bedcovers were brought down from roof of the bus, none of the passengers owned them and thereafter CRPF sniffer dogs were called. It is not understandable, if the contraband was recovered from the covers being carried by accused persons in their hands, then why the 6 sniffer dogs were pressed into service for identifying the persons carrying the alleged contraband .
13 As per statement of Ravi Kumar, I.O, he received docket at 5.15 pm on 11.01.2015 and immediately left for SCP Karal Nallah. The passengers were asked to alight from the Bus. The accused brought their bed covers from the roof of the Bus, but later, disowned them. Dog squad was pressed into service too. He claims that all this was done before him. This statement of I.O is in direct conflict with the statements of other witnesses who have very categorically and, in unison, stated that the docket was sent to police station only after the recovery of contraband. It is, thus, clear that the I.O has made an effort to cover up his inefficiency in conducting the investigation. This attempt of the I.O has only dented the prosecution case which was already without any legs to stand.
14 It also transpires from the record that during the course of defence evidence, an application was filed by learned defence counsel regarding production of CCTV footage of the occurrence in the Court and the trial Court vide order dated 14.05.2015 directed the Commandant of 84 Bn CRPF to produce the CCTV footage of the occurrence in the Court, but the trial Court was informed by the Commandant that the footage of the date of occurrence was available up to 2.40 pm and the footage of the occurrence was not available as the occurrence took place at 5 pm. The said version of the Commandant was belied by the evidence of prosecution witnesses. The prosecution witnesses have stated that there were CCTV cameras installed at the naka point and the same were working when frisking of the passengers was being conducted. The non-production of CCTV footage being an important 7 piece of evidence casts a serious doubt on the veracity of the prosecution case and is fatal to the prosecution case.
15 In view of afore-stated evidence on record, the trial Court had no option other than recording acquittal of the respondent. 16 On the conspectus of evidence and material on record, we are of the firm opinion that the judgment of acquittal recorded by the trial Court is perfectly legal and valid and, therefore, does not call for any interference. Otherwise also, the jurisdiction of the Appellate Court, hearing the acquittal appeal, is well circumscribed where, on evaluation of evidence and the material on record, two views are possible, the view which favours the accused is to be preferred. Bearing that in mind, we hold that the appellant has failed to make out a case for interference in the well reasoned judgment of acquittal recorded by the trial Court. This appeal is, therefore, found to be without merit and the same is, accordingly dismissed.
(JAVED IQBAL WANI) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
09 .06.2023
Sanjeev
Whether order is speaking:Yes
Whether order is reportable:Yes