Jammu & Kashmir High Court
State Of J&K vs Surinder Mohan And Another on 1 September, 2022
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU, KASHMIRAND LADAKH
ATJAMMU
Reserved on : 19.07.2022
Pronounced on: 01.09.2022
CRAA No. 206/2013
State of J&K
.....Appellant(s)
Through:- Mr. Dewakar Sharma Dy.AG, Advocate
v/s
Surinder Mohan and another .....Respondent(s)
Through:- Mr. Sunil Khajuria, Advocate
Coram:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
1. This appeal is directed against the judgment dated 24.07.2013 ( for short „impugned judgment‟) rendered by the learned Sessions Judge, Kathua ( for short „Trial Court‟) in case (File No. 39/ Spl. Challan) titled State vs, Surinder Mohan and others, acquitting the accused-respondents herein for offences punishable under Section 8/15 NDPS Act,
2. The factual matrix of the appeal are that on 31.10.2006 at about 8:00 hours a police patrol party of police station, Lakhanpur while checking the vehicles at Lakhanpur yard, spotted a car bearing registration No.CH03A/9512, the said car was intercepted and on checking three bags containing seventeen packets of Poppy Straw packed in small polythene bags, were recovered from the occupants of the car accused, respondents herein, Surinder Mohan was driving of the car. The Poppy Straw weighed 2 CRAA 206/2013 29.750 kgs. It was seized on the spot and seventeen samples weighing 50 gms each were taken out of the seized Poppy Straw. These were sealed on the spot for chemical analysis by the FSL. A case bearing FIR No. 92 of 2006, for offences under Section 8/15 NDPS Act was, accordingly, registered against the accused.
3. After completing the investigation charge sheet for the above mentioned offences was filed against the accused-respondents herein before the Trial Court on 30.12.2006. On 17.3.2007, the accused were charged with the commission of offences under Section 8/15 NDPS Act. The accused pleaded not guilty to the charge, therefore, prosecution was directed to lead evidence.
4. The Trial Court while appreciating the evidence on record found number of infirmities in the investigation and ultimately held that the prosecution has failed to prove the case and acquitted the accused- respondents herein.
5. The impugned judgment dated 24.07.2013, whereby the accused-respondents herein have been acquitted has been challenged in this appeal, precisely on the following grounds:
i) That the judgment is against the law and facts of the case, hence liable to be set aside.
ii) That the learned trial court has mis-appreciated the law and evidence on record and has not appreciated the statements of prosecution witnesses in their totality.
iii) That there is enough evidence on record which warrants the conviction and sentence of the 3 CRAA 206/2013 respondents/accused for the commission of offences under Sections 8/15 of NDPS Act.
6. Heard learned counsel for the parties and perused the material on record as well as impugned judgment.
7. The prosecution in order to prove the charges relied upon the statements of the following witnesses;
PW Sanjay Kumar, Selection grade constable has stated that on 31.10.2006 he was posted at Lakhanpur Yard. He spotted an Indica Car. The car was physically checked. It contained three bags. He took the car and the accused to Police Station, Lakhanpur where the proceedings against him were completed. Before this S.I Sh. Rakesh Mani reduced a docket into writing. It was handed over to constable Romesh Kumar for the registration of the case at the police station. The "Bhuki" weighed 29.750 kgs. He did not procure the weighing device. Some runner brought it to the spot. "Bhuki" was weighed in the Police Station. It was kept in one of the rooms of the Police Station situated adjacent to the room of "Munshi". PW Naresh Kumar, has stated that on 31.10.2006 he was running a vegetable shop at Lakhanpur, SHO Police Station, Lakhanpur, came to his shop. He took the weighing device and the series from him. The "Bhuki" was weighed in the shop. Two bags weighed ten and half kilograms each and the 3rd bag weighed 8.750 kgs. The "Bhuki" was seized vide a memo of seizure that bears his signature.
PW Salim Mohd. has stated that on 31.10.2006 he was posted at Police Station, Lakhanpur. They spotted a car-make Indica . It bore the number CH03/9512. It was loaded with three regzene bags. Two bags contained six packets each and five packets were found in the third bag. SHO reached on the spot. He took the accused with him. The total weight of the "Bhuki" was 29.750 Kgs. He further stated that the " Bhuki" was weighed on the arrival of the SHO. Each packet was weighed separately.
PW Subash Chander stated that on 2.11.2006 he was posted as Naib Tehsildar, Kathua. On the said day the police authorities produced before him 17 sealed packets for resealing. He sealed them. He issued a certificate. It bears his signature. He did not 4 CRAA 206/2013 open the packets. The police authorities stated that the packets contain Poppy Straw. He affixed one seal on each packet. PW Dhrub Singh, has stated that on 31.10.2006 he was posted at Police Station, Lakhanpur, a car bearing No.CH03A/9512 came from Jammu. It was physically checked. Three regzine bags were found inside the car. Six packets each were found in the two bags and five packets were found in the third bag. These packets contained Poppy Straw. Two bags weighed ten and a half kilograms each and the third bag weighed 8.730 Kgs. The SHO came on the spot. The samples were taken from each packet. He stated that no civilian was associated with the search of the car. The "Bhuki" was handed over to the' Munshi"
after its seizure.
PW Anuroop Sharma has stated that on 7.11.2006 he was posted as SHO, Lakhanpur. The investigation of the case was in progress. His predecessor in office was investigating the case. The investigation was entrusted to him on 7.11.2006. During his investigation he obtained the FSL report. In his cross examination he has stated that during his investigation he did not inspect the seized contraband. The samples had been taken out of the seized contraband before he took over as the SHO, of Police Station, Lakhanpur. The memos were prepared before the registration of the case against the accused. In the case diary he did not make a mention of the presence of the the seized "Bhuki" in the "Malkhana". It is correct that each day's proceedings have to be entered in the case diary.
PW Pavvan Kumar Abrol, Scientific Officer has that on 3.11.2006 he received seventeen sealed packets forwarded to him by the S.S.P Headquarter Kathua through SGCT Yog Raj in case FIR No.92/2006 under section 8/15 NDPS Act of Police Station, Lakhanpur. These packets wrapped with cloth marked by him as AI to A6 B1 to B6 and CI to. C5 were further given the exhibit Nos. P-407/06 to P-423/06 by him. The exhibits on opening was found to contain some straw coloured powdered material which was subjected to various chemical tests, microscopical and chromatographic examination Traces of Morphine were found present in all the exhibits. The exhibits also revealed the presence of the characteristic features of Poppy plant. He has seen the original report No. 1610/FSL dated 20.12.2006 in the court file. It bears his signature. The contents of the same are true and correct. It is exhibited as EXT
-P/8 On cross examination by the defence counsel the witness has deposed that the certificate is not in his hand writing. However, it bears his signature. He has not seen/brought the record of the examination of the exhibits mentioned above. He 5 CRAA 206/2013 has mentioned that traces of Morphine were found present in exhibits marked P-407/2006 to P-423/2006 and these cannot be quantified. He has not conducted the dilution test to ascertain the quantity and weight of the morphine. He does not remember the specimen of the seal affixed on the exhibits. FSL form was not snit along with the forwarding letter of the sealed packet. No specimen of the seal was sent to him for comparison. Only facsimile seal impression was forwarded to him. The actual specimen of the seal was not forwarded. The packets were of different weight. He has not seen the remnants today in the court. He has only mentioned that these packets reveal the presence of the characteristic features of Poppy plant. "Characteristic features" means that definite features of Poppy plant were found present. He has not mentioned in the certificate that he separated Morphine grain from the chaff. Except for the tests mentioned in the certificate there is no other test prescribed anywhere in the literature. Before the tests he went through literature (Clarkes Book on Isolation of Narcotic Drugs). For him it is not essential to mention the details of the literature and the various chemical tests. The exhibits were subjected to various chemical tests, and chromatographic examination mentioned in the literature. He has not mentioned in the certificate that the exhibited were subject to chemical tests by him in person. He has not mentioned the age of the morphine.
PW Mohan Lai stated that on 31.10.2006 he was posted as a head constable at Police Station, Lakahnpur. On the said day they spotted an Indica car bearing No. CH03A/9512. On checking three polythene bags were recovered. Seven packets each were found in the two bags. These contained "Bhuki". Each bag weighed ten and a half kilograms. The third bag contained 'Bhuki" weighing 8.250 Kgs. SHO reached on the spot. The samples were taken from the seized "Bhuki". Although a number of civilians were present on the spot, yet the SHO did not cite them as witnesses in the case.
PW Romesh Kumar has stated that in the year 2006 he was posted as a constable at Police Station, Lakhanpur. At about 8 a.m they spotted a car-make Indica. On checking the car three bags were recovered. Two bags contained "Bhuki" weighing ten and half kilograms each and the third one contained 8.250 Kgs of "Bhuki". The SI Rakesh Mani handed over a docket to him for taking to the police station for the registration of a case. The SHO reached on the spot.
6CRAA 206/2013
PW Rakesh Mani Sub Inspector, has stated that in the year 2006 he was posted as an investigating officer at police Station, Lalhanpur. On 31.10.2006 he along with the other police personnel proceeded towards Lakhanpur yard for checking the vehicles. At the moment an Indica Car bearing No. CH03A/9312 was stopped. The accused were in the car. The car was physically checked. Three bags were recovered from the car. Two bags had six packets each inside them and the third bag had live packets inside it. On opening these packets were found to contain Poppy Straw. He reduced a docket into writing. It was sent to SHO Police Station, Lakhanpur for information. He did not reduce docket into writing. It is because he is not versed with reading and writing Urdu. The seized property was weighed by the SHO. The seized 'Bhuki" is open. It does not bear the number of the FIR or the offence on which it has been seized.
PW Sunder Choudhary, has stated that in the year 2006 he was posted as SHO Police Station. Lakhanpur. On 31.10.2006 at about 9 to 9.15 a.m constable Romesh Kumar produced a docket before him at the police station. A case for offences under Section 8/15NDPS Act bearing FIR No. 92/2006 was registered on this docket. He investigated the case. He seized the "Bhuki". He recorded the statements of the witnesses. The samples weighing 50 grams were taken out of each packet for chemical analysis by the FSL. The samples were resealed Thereafter he was placed under transfer. During his investigation he handed over the seal and the weighing scales on "Superdnama". He has further stated that it is not mentioned in the case diary that he in writing infirmed his officers about the seizure. The seized "Bhuki" was lying with Rakesh Mani from 8 a.m till such time that he reached the spot. However, this is not stated in the case diary. No civilian was present at the place of occurrence when he reached the spot, he tried to associate the civilians with the investigation of the case but they refused. He further stated that the seized property can be identified by the FIR number only, the packets do not bear any seal. After the seizure the seized property was kept in the "Malkhana" of the police station. No receipt of the "Malkhana" is attached to the tile. The case diary also does not state so.
8. The contraband poppy which is alleged to have been recovered from the accused-respondents herein was seized on the spot and as per the prosecution story the samples were taken to the FSL and report of FSL was 7 CRAA 206/2013 received on the basis of said report and the evidence recorded during the investigation, offences punishable under Section 8/15 NDPS Act were established.
9. The Trial Court has observed that the report submitted by the chemical examiner does not prove that the contents of the samples tested were that of Poppy husk within the meaning of the Act, while observing so, the Trial Court had relied upon the judgment of a Division Bench of High Court of Himachal Pardesh in case titled Rajiv Kumar alias Guglu versus State of H.P, Latest HLJ 2008 (HP) 247, paras 8 and 9 of the said judgment are reproduced as under:-
"8. From the definition of poppy straw, as reproduced hereinabove. it is ''clear that to understand the meaning of poppy straw, it is essential to refer to the meaning of opium poppy. Poppy straw, when read along with the definition of opium poppy, means (a) all parts (excepts seeds) of the plant of the species of papaver somniferum-
L and all parts {except seeds) of the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can he' extracted and which the Central Government may by notification in the official gazette declare to the opium poppy for the purpose of Narcotics Drugs and Psychotrophic Substances Act. 1985.
9. In the present case, as is c. ear from the statement to the Chemical Examiner, recorded by us, the two tests conducted by him to ascertain whether the stuff contained meconic acid and morphine, do not indicate that the stuff examined consisted of the partsof either the plant of the species of papaver somniferum-L or a 8 CRAA 206/2013 plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted and which the Central Government may have notified to be the opium poppy for the purposes of the Narcotics Drugs and Psychotropic Substances Act, 1985. If it is so, the report of the Chemical Examiner, Ex. PW-IO/L, that the stuff contains contents of puppy husk, which term is similar to the term "poppy straw" cannot be used as enough evidence to hold that the stuff recovered from the appellant, the sample of which was analyzed by the Chemical Examiner, was poppy straw."
10. The said Division Bench while coming to the aforesaid view relied upon the judgment of the Apex Court in Amarsingh Ramjibhai Barot Versus State of Gujarat, 2005 Drugs Cases (Narcotics) 426: (2005) 7 SCC
550.
11. The Trial Court while applying the ratio of the aforesaid judgments held that the chemical examiner only found exhibit belonged to Poppy plant and morphine was detected. The report of the chemical examiner Pawan Kumar Abrol is reproduced as under:-
(a) test for meconic acid: Positive
(b) test for morphine : positive
(c) General observation of the chemist: I am of the opinion that, all eight exhibits marked here as 206/1 206/2, 206/3. 206/4, 206/5, 206/6, 206/7 and 206/8 contain the contents of poppy Husk."9 CRAA 206/2013
12. According to the report of the chemical examiner the exhibits (samples) were subjected to various chemical, microscopical and chromatographic examinations and the result arrived was "Traces of Morphine" were found present in exhibit (samples), exhibit also revealed the presence of characteristics features of "Poppy Plant".
13. The chemical examiner has not given any opinion whether such part of the plant belongs to the papaver somniforum or not. He has not reported as to whether he conducted any test to determine the species of the plant and percentage of morphine. He simply stated that morphine was found in the seized contraband and without giving out the contents of morphine will not fastened any criminal liability on the accused. Such omission in the report of chemical examiner is fatal to the prosecution case.
14. The specimen seal with which samples were seized has also not been sent to the chemical analyst to compare the specimen seal with the seal used for re-seal. The seal was also not kept in a safe custody, it was given on superdnama to a member of the patrolling party, namely, Saleem Ahmed. The seal used for re-sealing of the samples was required to be kept in safe custody and on the superdnama of such a person who was not a member of the patrolling party. It should have been kept on the superdnama of an independent person. The safe custody of the seal was of vital importance in order to support the prosecution case. Failure in keeping the seal used for sealing or re-sealing in safe custody and on the superdnama of an independent person is fatal and the investigating officer while dealing with this important type of link evidence has dealt with in a most casual manner. 10 CRAA 206/2013 The seal used was also not kept in safe custody which ought to have been kept in Malkhana after the samples were sealed. There is also no evidence to show that the samples and residue was deposited in Malkhana. It is shown that the samples had been taken on 31.10.2006 and after having been taken were resealed on 02.11.2006, there is no explanation to this effect as to why the samples were not immediately resealed. The custody of the seal used to resealing and its safe custody becomes relevant at this point of time and there arises an apprehension that since the seal was with the member of the patrolling party, it was not kept in Malkhana, therefore, there was every likelihood of tampering with the seal/samples. No explanation is forthcoming from the prosecution evidence as to where these samples remained after sealing and then resealing before samples were sent to the FSL for chemical analyzer. The link evidence is, thus, missing in this case. It was the duty of the prosecution to have produced evidence before the Trial Court to establish that the samples and residue as well as the seal was immediately kept in a safe custody and there was no apprehension chance of tempering with the seal of the samples so taken. The investigating officer in this case has not taken any such step and, as such, this fault in the investigation is also fatal to the prosecution case.
15. The Apex Court in a case titled State of Rajsthan vs Gurmail Singh reported in 2005 (1) acquittal 438 SC, has laid down 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 11 CRAA 206/2013 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."
16. The prosecution in this case has also not placed on record the communication by virtue of which samples are alleged to have been sent for chemical analysis by the SSP. The statement of the SSP and Yog Raj SGC who is stated to have delivered the samples in the Laboratory have also not been recorded.
17. The High Court of Jammu and Kashmir in case titled as Sher Singh alias Shera Vs State of J & K, reported in 2007 (1) SLJ assumes has observed and held as under:-
"There is yet another aspect of the matter which needs notice. The seized powder appears to have been sent by the SDPO, Akhnoo rto the Director, FSL. Jammu vide his communication dated17.01.1996 for chemical analysis. This communication has not been proved by the prosecution during the trial of the case. Jagdish Lai 12 CRAA 206/2013 Sharma. SDPO Akhnoor, while appearing as prosecution witness too had not said anything about this document in his statement. Sending of samples to the Director FSL, Jammu, therefore, has not been proved by the prosecution."
18. There is also variation in the weight of the samples which were taken by the investigating officer at the time of resealing and that weight of the samples which were received in the FSL. The weight does not correspond to the weight of the samples sent for chemical analysis. This fact is also fatal to the prosecution case. Since there are material infirmities in the investigation of the prosecution case, therefore the Trial Court has rightly after discussing the evidence and applying the law on the issues which were raised rightly held that the prosecution has failed to prove the case against the accused-respondents herein.
19. In view of the aforesaid discussion, I am of the opinion that the impugned judgment of acquittal dated 24.07.2013, passed by the learned Sessions Judge, Kathua calls for no interference by this Court in this appeal. The acquittal of the accused-respondents herein of the offence with which they were charged deserves to be affirmed.
20. In the result, this appeal fails. It is hereby dismissed.
(VINOD CHATTERJI KOUL) JUDGE Jammu 01.09.2022 Bir Whether approved for reporting? Yes/No 13 CRAA 206/2013