Jammu & Kashmir High Court
State Of J&K; vs Balvinder Singh And Anr on 7 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 14
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SLAA No.88/2016
CONCR No.80/2016
Date of Judgment: 07.11.2017
State of J&K vs Balvinder Singh and anr
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Appellant (s) : Mr L. K. Moza, AAG.
For the Respondent(s) :
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Badar Durrez Ahmed, CJ (Oral)
1. Despite several opportunities the learned counsel for the State has not taken steps to ensure that respondent No.2 is served with the notice in both these applications. He also requested for a final opportunity to take steps. However, we think, in view of the circumstances to be indicated herein below, that the same would not be necessary.
2. The State seeks leave to file an appeal against an acquittal order dated 08.12.2015 in File No. 21/ Special Challan before by the Principal Sessions Judge, Kathua, arising out of FIR No. 329/2011, registered at Police Station Kathua, under Sections 8, 21 and 22 of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").
3. The case of the prosecution was that on 12.09.2011 at about 4.30 P.M, while a team of Police Officers/ officials were busy in routine checking, a Naka had been laid at Jarai chowk. At that point of time, a motor cycle, which did not bear any registration number, approached from the road leading to Punjab. Two persons were found riding the said motor cycle and, it is alleged that on spotting SLAA No. 88/2016, CONCR 80/2016 Page 1 of 3 the police party, they tried to leave the scene. The police party allegedly chased the motor cycle and caught hold of the motor cyclists. One person identified himself as Balvinder Singh alias Makhan while the other identified himself as Bhopinder Singh alias Pinka alias Nishi. It is alleged that both these persons were subjected to personal search and from the possession of the accused Balvinder Singh, 460 intoxicating capsules of „Parvon Spas‟ were recovered whereas 60 similar capsules were allegedly recovered from the possession of accused Bhopinder Singh. Thereafter the FIR No. 329/2011 for offences under Sections 8,21 and 22 of the NDPS Act was registered at Police Station Kathua and the investigation of the case was set into motion. The sealed capsules were allegedly sent for chemical examination.
4. The prosecution examined seven witnesses in support of the case. However, the learned Sessions Judge acquitted the respondents/ accused primarily on the ground that there was no evidence as to whether the substance, which was allegedly recovered, was a narcotic drug or psychotropic substance. The relevant portion of the judgment of the learned Sessions Judge, dealing with this aspect of the matter, reads as under:-
"Another lacuna in the prosecution case which strikes at its very root is the non-examination of chemical analyst who has examined the samples in question. PW Shakil Ahmed Wani the chemical analyst who has rendered report dated 24.3.2012 has not been examined as a witness by the prosecution and as such, his report is not proved. Although Section 510 of Cr.PC makes the report of a chemical examiner admissible in evidence, yet from the report itself it is not clear as to what is the designation and qualification of the author of the report. Unless it is shown that report in question has been rendered by a chemical examiner or an assistant chemical examiner of Government, the said report does not become admissible in evidence on its mere production. In these circumstances the report in question, in the absence of its proof, cannot be read in evidence against the accused. The prosecution has, therefore, failed to establish that the material allegedly recovered from the possession of the accused contained the contraband dextropropoxyphene hydrochloride. It knocks down the very basis of the prosecution case."SLAA No. 88/2016, CONCR 80/2016 Page 2 of 3
5. From the above, it is evident that the prosecution has been unable to establish that the alleged substance, which was allegedly recovered from the possession of the respondents, was dextropropoxyphene hydrochloride. The only supporting material, which was sought to be introduced by way of evidence by the prosecution, was the report of Shakeel Ahmad Wani, the Chemical analyst. The report was dated 24.03.2012. Unfortunately for the prosecution, the said Shakeel Ahmad Wani has not been examined as a witness and, therefore, the report dated 24.03.2012 cannot be taken by way of evidence in view of Section 510 of the Code of Criminal Procedure, Samvat 1989, unless and until the person making the report is the Chemical Examiner or an Assistant Chemical Examiner to the Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an Officer of the Mint. The prosecution has been unable to establish that Shakeel Ahmad Wani held any of the above positions. Consequently, the report has not been taken in evidence by the learned Sessions Judge, and rightly so. The result of this would be that the prosecution has failed to establish that the allegedly recovered substance was a narcotic drug or a psychotropic substance.
6. Consequently, as held by the learned Sessions Judge, the entire prosecution case falls to the ground.
7. In this backdrop, we see no reason as to why we should grant leave to file an appeal against the order of acquittal dated 08.12.2015. Consequently, the same is dismissed. It is for this reason, that we do not find it necessary to grant any further opportunity to the learned counsel for the State to serve the un- served respondent.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
07.11.2017
Anil Raina, Secy
SLAA No. 88/2016, CONCR 80/2016 Page 3 of 3