Jammu & Kashmir High Court
State Of J&K vs Kewal Krishan on 16 July, 2022
Bench: Rajnesh Oswal, Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 06.07.2022
Pronounced on 16.07.2022
CRAA No. 58/2012
State of J&K .....Appellant(s)/Petitioner(s)
Q
Through: Mr. Ravinder Gupta, Advocate
vs
Kewal Krishan ..... Respondent(s)
Through: Mr. Dinkar Gupta, Advocate
Respondent present in person
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Per Oswal-J
1. This is an appeal against the judgment dated 21.02.2012 passed by the Sessions Judge Reasi (hereinafter to be referred as the trial court) in case tilted, "State vs Kewal Krishan" arising out of FIR bearing No. 125/2010 for commission of offences under sections 8 and 20 of the Narcotic Drugs and Psychotropic Substances, Act (for short the Act) registered with Police Station, Katra.
2. The judgment has been assailed primarily on the ground that the learned trial court acquitted the respondent despite the fact that the appellant had proved the charges against the respondent and further that the learned trial court has wrongly appreciated the evidence.
3. Mr. Ravinder Gupta, learned AAG has vehemently argued that the learned trial court has wrongly acquitted the appellant on the premise that there was violation of section 50 of the Act whereas the fact remains that the alleged contraband has not been recovered from the 2 CRAA No. 58/2012 personal search of the respondent but from the vehicle which was being driven by the respondent.
4. On the contrary, Mr. Dinkar Gupta, learned counsel for the respondent has vehemently argued that there are material contradictions with regard to the recovery of the contraband from the vehicle and further that the appellant did not examine the Forensic Expert to prove the FSL report.
5. Heard and perused the record.
6. The facts necessary for the consideration of the present appeal are that information was received in the Police Station, Katra from reliable source on 30.06.2010 that the respondent-Kewal Krishan, driver of a Tata Sumo bearing registration No. JK 02AK 2937 was involved in the illicit trade of Charas and was bringing Charas from Kashmir in a Tata Sumo for sale in Katra. On the basis of this information, FIR No.125/2010 for offences under sections 8 and 20 of the Act was registered. The SDPO laid a naka near Varun Hotel at Railway Chowk and the vehicle was stopped and during search, two blue coloured polythene bags were recovered from beneath the driver‟s seat. 46 corn cob leaves containing Charas like material were recovered from one of the bags and Poppy Straw was recovered from other polythene bag. The contraband was weighed on spot. The Charas with corn cob leaves was 1 Kg and 696 grams and 1 Kg and 492 grams without corn cob leaves. The Poppy Straw was weighed as 500 grams. Charas and Poppy Straw were separately brought under seizure on the spot. 40 grams of Charas was taken out as a sample for chemical examination and samples were prepared and marked as mark „A‟ and „A1‟ and likewise 30 grams of Poppy Straw was segregated for chemical analysis and packets were 3 CRAA No. 58/2012 marked as „B‟ and B1‟. The FSL report was also received and during investigation, offences under section 8, 15 and 20 of the Act were established against the respondent. The prosecution cited as many as 11 witnesses, out of which 8 were examined, i.e. PW-1, PW-2, PW-3, PW- 4, PW-7, PW-8, PW-9 and PW-10. PW-5 Rattan Singh, the Executive Magistrate 1st Class, Katra who had resealed samples of the contraband and PW-6 i.e. Pawan Abrol, Forensic Expert were not examined by the prosecution.
7. The charge sheet was filed against the accused on 02.09.2010 and the charges were framed against the respondent on 05.10.2010 for commission of offences under section 8, 15 and 20 of the Act and the prosecution was directed to lead evidence.
8. After the closure of the prosecution evidence on 04.07.2012, statement of the respondent was recorded under section 342 Cr. P.C. and thereafter the respondent did not choose to lead evidence and rather appellant filed an application under section 540 Cr.P.C. for examination of two witnesses i.e. PW-5 and 6, however, the said application was dismissed by the learned trial court vide order dated 17.12.2011.
9. After hearing both the parties, the learned trial court vide judgment dated 21.02.2012 acquitted the respondent and dismissed the charge sheet filed by the appellant.
10. In order to appreciate the controversy, it would be appropriate to have a brief resume of the relevant part of prosecution evidence and the same is as under:
11. PW-1 P. N. Tikku, Dy. S. P. stated that on 30.06.2010, he was posted as SDPO Katra. On the day of occurrence, they have received an 4 CRAA No. 58/2012 information from reliable source that someone was bringing Charas in a vehicle. He received telephonic information from naka party that was already on spot. Thereafter, he went to the spot near Varun Hotel at Panthal road Katra at about 3.30 PM. They stopped the vehicle. He did not remember the registration number of the said vehicle. The driver of the vehicle disclosed that he was coming from Udhampur and was going to Katra. During personal search, no incriminating material was found from the respondent and after obtaining consent from the respondent, the vehicle was searched. S. I. Bhupinder Singh searched the vehicle in his presence. During search, he recovered Charas wrapped in maize cob leaves in a polythene bag under the seat of the driver and Poppy Straw was also recovered from another polythene bag. There were 46 maize cob leaves. The Charas weighed approximately 1 Kg 492 gms and Poppy Straw weighed 500 grams. He admitted the signatures on the seizure memo that was attested by him already marked as ExPW-3/AK. He also identified the seized Charas and Poppy Straw in the court.
During cross examination, he stated that he had received telephone call from S. I. Bhupinder Singh at about 3.15 PM when he was on spot. The place of recovery was about 150 feet from the Police Station. The vehicle was stopped by S. I. Bhupinder Singh and he recovered the polythene bag containing Charas. The polythene bag was opened and after being satisfied that it contained Charas only, the same was weighed and brought to the Police Station and rest of the proceedings were conducted in the Police Station. Statements were also recorded in the Police Station.
5 CRAA No. 58/2012
12. PW-2 Ashok Kumar stated that on 30th June at about 4:10 PM, a Tata Sumo bearing registration No. JK 02AK 2937 was stopped near Varun Hotel. The vehicle was searched and two blue coloured polythene bags were recovered from beneath the seat. One of the polythene bags contained 46 corn cob leaves containing Charas and from another polythene bag, 500 grams of Poppy Straw was recovered. The Investigating Officer seized them on spot and they were weighed and sealed and thereafter, sent to the FSL. He proved the seizure memo of Charas and Poppy Straw and identified his signatures. It was marked as ExPW-AK. He also admitted the contents of seizure memo of the vehicle, memo of supurdnama, memo of personal search and memo of arrest and identified his signatures and they were marked as ExPW- 3/1AK, ExPW-3/2AK, ExPW-3/3AK and ExPW-3/4AK respectively. During cross examination, he stated that he had gone for search at about 3 PM from Police Station along with ASI Bhupinder Singh, Constable Roshan Singh and Rajinder Singh. Constable Roshan Lal stopped the vehicle and also searched the vehicle. Accused was also searched after search of the vehicle. Poppy Straw and Charas were also weighed by the Investigating Officer with the help of weighting scale from IO kit. Weight of the Charas along with corn cob leaves was 1Kg 696 grams and without corn cob leaves 1KG 492 grams. The corn cob leaves were also seized on spot but he does not know whether seizure memo was prepared or not. Both the packets were sealed by the Investigating Officer. There were passers-by and people also had gathered on the spot. His signatures and that of the respondent were also obtained at the time of sealing of the packet. The packets marked as A and B were 6 CRAA No. 58/2012 shown to him, however, both the packets did not contain signatures of the accused or the witness. His statement was recorded by the Investigating Officer in the Police Station and seal marked as A and B was kept on supurdnama of Rajinder Singh. 40 grams of Charas and 30 grams of Poppy Straw were segregated for chemical analysis.
13. PW-4 Ravinder Singh proved the supurdnama of ring that was used for sealing the samples. He proved the memo that was already marked as Ex-PW 3/2AK. He stated that the Charas and Poppy Straw were seized in his presence. During cross examination, he stated that he saw the accused at the time of supurdnama of ring. He expressed ignorance as to how many seals were put on the packet. His statement was recorded by the Police on spot. He stated that Charas was recovered from the accused after he and Dy. SP reached on spot. The Investigating Officer told that the Charas was recovered from Sumo. The ring remained with him since occurrence till date.
14. PW-2 Roshan Singh, Constable stated that on 30.06.2010, he along with constable Ashok Kumar and S. I. Bhupinder Singh had gone for investigation and they laid a naka near Varun Hotel at Railway Chowk for checking the vehicles. They stopped a Tata Sumo bearing registration No. JK 02 AK 2397 and they recovered two polythene bags from beneath the driver‟s seat. One polythene bag containied 47 corn cob leaves of Charas and half kg of Poppy Straw was in other bag. By that time, Dy. SP also arrived on spot. Investigating Officer weighed the recovered contraband and it weighed 1 Kg 696 grams of Charas and weight of the Charas without corn cob leaves was found to be 1 Kg 492 grams. 40 grams of Charas was taken as sample for chemical 7 CRAA No. 58/2012 examination and was marked as A and A1. The same was sealed and seal was kept on the supurdnama of Devinder Kumar SGC. 30 grams sample of Poppy Straw was also extracted and marked as B and B1. He admitted the seizure memo of the Charas and Poppy Straw and also admitted the supurdnama of seal, memo of personal search and memo of arrest of the respondent. These documents were already marked as ExPW AK to ExPW-3/4 A/K and he identified the seized material shown to him in the court.
During cross examination, he stated that they went for investigation at about 3.15 PM with respect to some land dispute along with SI Bhupinder Singh. They stopped the vehicle at about 3.45 PM. First they conducted the personal search of the driver and thereafter that of the vehicle. The vehicle was searched by constable Ashok Kumar. Consent of the accused was not obtained before personal search. Search of the vehicle was done by him. He told the Investigating Officer that there is Charas and Poppy Straw in the polythene bags and thereafter the Investigating Officer took the weighing scale to weigh the recovered material. The ring used in the resealing was also taken out by the Investigating Officer from his Kit. The Investigating Officer did not seize the corn cob leaves after the weight and they were thrown away on spot. The entire proceedings were conducted on spot and thereafter they went to Police Station. His statement was recorded by the Investigating Officer only and his signatures were obtained on all the seizure memos and no other witness had put the signatures. Signatures of the accused were also not obtained. SHO did not put his seal on the seized material in the Police Station and seized articles were lying with 8 CRAA No. 58/2012 the Investigating Officer. The Dy.SP was on spot and he attested the seizure memo and did not conduct any proceedings.
15. PW-7 Madan Lal stated that he was witness to the supurdnama of the vehicle and he proved the supurdnama marked as ExPW 7/ML and also ExPW-7/1ML
16. PW-8 Raj Bhardwaj stated that he is also witness to the supurdnama of the vehicle as well as the documents and proved the supurdnamas marked as ExPW-7/ML and ExPW-7/1ML.
17. PW-9 Vikas Aggarwal stated that he was the owner of the vehicle and on supurdnama, the vehicle was released. During cross examination, he stated that the accused was plying the vehicle for the last 8 to 9 years and he was never involved in a case of such a nature.
18. PW-10 S. I. Bhupinder Singh Bhati stated that FIR was registered on 30.06.2010 after the information was received from reliable source and he along with police officials went near Varun Hotel at Railway Road Katra and laid a naka. DySP also reached on spot within 10 to 15 minutes. They stopped the vehicle bearing registration No. JK 02AK 2937 and the respondent disclosed his name as Kewal Krishan. The Dy.SP told the accused that he was carrying some intoxicant and gave him an option to be searched in presence of a Magistrate. The accused replied that he could be searched by any officer. The SDPO personally searched him. Thereafter, he searched the accused and he recovered polythene bags from beneath the seat of driver. There was Poppy Straw in one of the bags and Charas in the other. The Charas was wrapped in 46 maize cob leaves. The weight of the charas along maize leaves was 01 Kg 696 grams and weight of the Charas was 01 Kg 492 grams and 9 CRAA No. 58/2012 weight of the Poppy Straw was 500 grams. He prepared two separate packets. He took out a total sample of 40 grams of Charas and a sample of 30 grams of Poppy Straw. The packets were prepared and sealed on the spot. The Charas was marked as A and A1 and Poppy Straw was marked as B and B1. The ring with which the packets were sealed was kept on the supurdnama of Sgct. Ravinder Singh. An amount of Rs. 2945/-, a Philips Watch and a Nokia mobile were also recovered from the personal search of the accused and seizure memo was prepared and he deposited the four packets in the malkhana. The packets were taken to Naib Tehsildar, Katra on 03.07.2010 for resealing and again deposited in the malkhana. The sample were deposited with FSL on 06.07.2010 and the report was received on 14.09.2010 and thereafter, the charge sheet was compiled and presented in the court. He proved the site plan that was marked as ExPW-10/BS. He also admitted the seizure memo with respect to Charas and Poppy Straw, seizure memo of vehicle, supurdnama of ring, seizure memo of personal search, memo of arrest of the accused, supurdnama of the vehicle.
During cross examination, he stated that SHO received the information from reliable source at about 3.30 PM who instructed him to proceed on spot along with IO Kit. He informed the Dy.SP on telephone. He had gone to railway road for investigation of some land dispute and he laid a naka on return. Some pilgrims were also on spot but they were not ready to appear as witnesses. The site plan has been signed by him but the same has not been prepared by him. The same was prepared by Roshan Choudhary. The seizure memo of Charas and Poppy Straw was prepared by Roshan Choudhary but the same was 10 CRAA No. 58/2012 signed by him. Similarly, the seizure memo of the vehicle, seizure memo of the seal, seizure memo of the personal search of the accused and the statements of the witnesses were prepared by SI Roshan Choudhary but all these documents were signed by him. It has not been mentioned on all these documents that they were prepared by Roshan Chowdhary on his instructions. He dispatched he sealed material to FSL vide his letter dated 06.07.2010. The seized material since its recovery till its depositing in the malkhana was lying under his custody and seal on supurdnama was lying with SGC Ravinder Singh. He himself weighed the seized material and got them sealed under his instructions through constables Roshan Singh and Ashok Kumar. Total weight of the Charas was taken but separate weight of maize cob leaves was not taken. He did not forward separate samples of 46 maize cob leaves to FSL, but he sent a single sample only. Roshan Choudhary, SI was not cited as witness in the case.
19. This is the whole prosecution evidence and admittedly neither Naib Tehsildar, who resealed the samples, nor the Forensic Expert has been examined. While scanning the evidence, we find that there are material contradictions with regard to the search of the vehicle as PW Ashok Kumar stated that the vehicle was searched by Roshan Singh and contraband was recovered. PW constable Roshan Singh has also deposed in similar fashion that he searched the vehicle though it was initially stated that it was Ashok Kumar who searched the vehicle.
20. PW P. N. Tikku, Dy.SP has stated that the vehicle was searched by Bhopinder Singh and the Charas and Poppy Straw were recovered by him. PW Bhupinder Singh Bhati, SI also stated that it was he who 11 CRAA No. 58/2012 searched the vehicle and recovered the Charas and Poppy Straw, thus, it becomes very difficult to believe the prosecution story with regard to the recovery of the contraband from the vehicle as two different stories emerge with regard to the search of the vehicle and recovery of the contraband and it is not possible to rely upon the contradictory statements of these witnesses, who are police officials in absence of any independent witness. More so, we find that PW Ashok Kumar and PW Roshan Singh have stated that entire proceedings were conducted on spot whereas PW P. N. Tikku Dy SP who was the senior officer, has stated that the polythene bags were opened and after being satisfied that they contained Charas only, were sealed and brought to the Police Station and rest of the proceedings were conducted in the Police Station and statements of the witnesses were recorded in the Police Station. More so, from the perusal of the statement of the Investigating Officer, this court finds that Investigating Officer has specifically stated that all the documents were prepared by S. I. Roshan Choudhary and he also stated that all the statements of the witnesses were recorded by SI Roshan Choudhary where as all the witnesses have stated that the statements were recorded by the Investigating Officer. It also casts doubt upon the prosecution story. More so, a perusal of the statement of the Investigating Officer Bhupinder Singh Bhati reveals that the recovery was effected on 30.06.2010 and though he has stated that the packets were kept in malkhana and were taken to the Naib Tehsildar for resealing but there is nothing on record either in the form of extract from malkhana Register or the statement of the malkhana incharge that 12 CRAA No. 58/2012 the samples were kept in safe custody after they were brought in the Police Station.
21. More so, there is nothing on record that the same samples were deposited back in malkhana after getting them resealed from Naib Tehsildar and also that samples were taken on 06.07.2010 from malkhana for depositing with the FSL on 06.07.2010. As the punishments provided by the Act are hard, therefore, the burden is also high upon the prosecution to prove its case beyond any shadow of doubt.
22. The prosecution is not only required to prove that the contraband was recovered from the accused but it is also obligatory on the part of the Investigating Officer to bring the material on record that after the recovery was made and samples were extracted, the samples were kept in safe custody so as to avoid any chance of fiddling with the samples. It is because of this reason that samples are resealed by the Executive Magistrate so as to ensure that the samples are not fiddled. In the instant case there is no material on record that the samples were kept in safe custody after they were brought in Police Station till the time they were deposited with FSL. The link evidence is absolutely missing in the present case. The non examination of the Executive Magistrate and Forensic Expert has further caused dent in the prosecution case.
23. It is well settled that while hearing an acquittal appeal, the Court can re-
appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the learned trial court is a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record 13 CRAA No. 58/2012 or perverse. Reliance is placed upon the judgments of the Apex Court in Upendra Pradhan vs State of Orissa, 2015(11) SCC 124 and Vijay Kumar v State th Inspector General, 2009(12) SCC 629.
24. We have perused the judgment. Though we do not agree with one of the reasoning of the learned trial court that there was violation of section 50 of the Act as recovery was not made from the personal search of the respondent but from the vehicle. Section 50 of the Act is not applicable when the recovery is not made from the personal search of the accused.
25. Be that as it may, the learned trial court has rightly acquitted the respondent on the other grounds as well and we do not find any reason whatsoever particularly in view of the all what has been discussed above, to take any view contrary to that of the learned trial court, as such, we do not find any reason to interfere with the judgment of the trial court, the same is upheld. The appeal is dismissed.
26. The bail bonds of the respondent-accused are discharged.
(MOHAN LAL) (RAJNESH OSWAL)
JUDGE JUDGE
Jammu
16.07.2022
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No