Jammu & Kashmir High Court - Srinagar Bench
Mohammad Afzal Dar And Another vs < on 24 December, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on 07.12.2020
Pronounced on 24.12.2020
CRMC No. 08/2020
CrlM No. 12/2020
Mohammad Afzal Dar and another ...Petitioner/Applicant(s)
Through :- Mr. Ahmad Javid, Advocate
V/s
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Senior Superintendent of Police .....Respondent (s)
Bandipora and another
Through :- Mr. Sheikh Feroz, Dy. A. G.
Bail App No.107/2019
CrlM No. 574/2020
CrlM No. 580/2020
Nazir Ahmad Dar and another ...Petitioner/Applicant(s)
Through :- Mr. Ahmad Javid, Advocate
V/s
<
State of J&K .....Respondent (s)
Through :- Mr. Sheikh Feroz, Dy. A. G.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(through Video Conference from residence in Jammu)
d
JUDGMENT
rR
1. The present petition has been filed for quashing of FIR bearing No. 38/2019 under sections 8, 21 and 29 of Narcotics Drugs Psychotropic Substances Act, 1985 (for short the Act) registered with Police Station, Sumbal as well as proceedings conducted pursuant thereto by the trial court. 2 CRM(M) No. 08/2020 & Bail App No. 107/2019
2. Learned counsel for the petitioner submits that after the conclusion of the investigation, challan/charge-sheet has been filed in the court of Principal Sessions Judge, Bandipora (hereinafter to be referred as the trial court) and also charges have been framed against the petitioners on 15.07.2019 for commission of offence under sections 8, 21 and 29 NDPS Act. It is further stated that the FSL report dated 24.04.2019 relied upon by the prosecution clearly reveals that the material allegedly recovered from the petitioners is not the brown sugar as alleged in the charge sheet. The application for grant of bail filed by the petitioners was also dismissed by the learned trial court vide order dated 21.09.2019. The petitioners have also challenged the order dated 15.07.2019, whereby the charges were framed by the learned trial court, primarily on the ground that the FSL report clearly negates the story of the prosecution regarding alleged recovery of brown sugar from the petitioners and on the basis of said FSL report, no offence under the Act is made out and the charges framed by the learned trial court for commission offences under section 8, 21 and 29 of the Act are bad in law and as such, required to be quashed.
3. Alongside the present petition for quashing the aforesaid FIR, the petitioners have also filed an application for grant of bail in the above mentioned FIR. Respondent has filed objections to both the petitions for quashing of FIR and grant of bail. The Respondent has virtually supported the orders passed by the trial court on the basis of same reasons those have been furnished by the trial court in both the orders of framing of charge as well as for refusing of bail.
4. Learned counsel for the petitioners have vehemently argued that once the FSL report does not establish that the material sent for chemical 3 CRM(M) No. 08/2020 & Bail App No. 107/2019 examination is brown sugar, possession of which has been made punishable under the Act, the petitioners cannot be prosecuted under the Act and the charges framed by the learned trial court are also bad in law and merely on the basis of the observation that the nature of the substance that was recovered from the petitioners is to be ascertained during trial, the petitioners cannot be put to trial.
5. Mr. Sheikh Feroz, learned Dy. A. G. appearing for the respondents, on the contrary, submitted that the FSL report does not conclusively determine that no substance as prohibited under the Act has not been recovered from the petitioners. Mr. Feroz has vehemently argued that the material allegedly recovered from the petitioners be sent for further chemical examination.
6. Heard, considered and perused the record meticulously.
7. Before appreciating the rival contention of the parties, it would be appropriate to have brief resume of the prosecution story. On 15.03.2019, FIR bearing No.38/2019 u/s 8, 21 and 29 of the NDPS Act was registered at Police Station, Sumbal at 19.10 hours pursuant to the docket brought by the constable, Irshad Ahmad. It was stated that on 15.03.2019 at 18.45 hours when the Police party was discharging naka duty at Markundal General Road, they intercepted a motorcycle bearing registration No. JK-15-9067 that was coming from Hajim towards Bandipora. Two persons were riding the said bike and they disclosed their names as Nazir Ahmad Dar and Mohammad Afzal Dar. On their personal search, one polythene bag containing about 570 grams Brown Sugar in the form of powder was recovered from the possession of Nazir Ahmad Dar and another polythene bag containing about 360 grams Brown Sugar was recovered from the possession of the Mohammad Afzal Dar.
4 CRM(M) No. 08/2020 &Bail App No. 107/2019
8. The seized contraband was sent to the Forensic Science Laboratory (FSL) Srinagar for chemical examination to ascertain the identity of the contraband as brown sugar and the FSL Srinagar vide its report dated 24.04.2019 opined as under:
"THE EXHIBIT NO. S-193/19 AND S-194/19 WERE TESTED FOR PRESENCE OF (ALKALOIDS, BARBITURATES, AND AMPHETAMINES), METHAMPHE'I'AMINES, METHAQUALONE BENZODIAZEPINES, PSILOCYBIN. AND PSILOCIN. NONE OF THESE NARCOTJC/PSYCHOTROPIC SUBSTANCES WERE DETECTED)"
9. The learned trial court after taking into consideration the FSL report, framed the charges for commission of offences under sections 8, 21 and 29 of the Act against the petitioners and observed that the FSL report does not demonstrate the identity of the seized material and whether any narcotic or psychotropic substance other than mentioned in FSL report was present or not, it is necessary to examine the FSL expert and other witnesses and that can be only be possible after the framing of formal charge against the petitioners. It is the positive case of the prosecution that the Brown Sugar was recovered from the petitioners but the FSL report did not substantiate the said contention of the prosecution and rather negated that any Brown Sugar was recovered from the petitioners as the seized material tested negative for presence of alkaloid in it. Needless to mention here that the brown sugar is alkaloid.
10. The offences under the Narcotics Drugs Psychotropic Substances Act are not the ordinary offences those can be proved by way of ocular evidence and in such type of matters, the opinion of the Chemical Analyst/Scientific Expert is very material and simply on the basis of oral testimony and without there being any report from the Chemical Analyst/Scientific Expert that the particular 5 CRM(M) No. 08/2020 & Bail App No. 107/2019 substance is either a narcotic drug or psychotropic substance under the Act, no person can be tried or convicted for commission of any offence under the Act. To prosecute and also to convict a person for commission of offence under the Act, it is necessary that there must be opinion from the Chemical Analyst/Scientific Expert that substance recovered from the alleged accused is either a narcotic or psychotropic substance, the possession of which has been made punishable under the Act.
11. From the perusal of the FSL report relied upon by the prosecution, it is revealed that the substance allegedly recovered from the petitioners was subjected to certain limited tests only those were mentioned in the FSL report and to ascertain this aspect, this Court issued notice to the FSL Expert, who at the relevant point of time was the Head of the Division, Chemistry and Toxicology (Now Retired) and had conducted the chemical examination of the recovered material and was the author of the said report. He appeared before this Court on 17.11.2020 through virtual mode and stated that only those tests were performed to determine the identity of the substance sent for the examination, the facility of which was available in the FSL Srinagar and categorically stated that certain other tests were not performed as the facilities were not available in Srinagar. It is strange that FSL Expert had not said so in his report which he otherwise being an expert was expected to do so. The offences under NDPS Act are serious offences, having the potential of causing damage to the society and playing havoc with the economy of a country and due to these reasons, harsh punishments have been provided under the Act. The role of Chemical Analyst/Scientific Expert particularly under the Act is to ensure that the reports 6 CRM(M) No. 08/2020 & Bail App No. 107/2019 submitted by them are not vague as the fate of investigation/ trial is dependent upon the said report. The vague report may lead to escape of an offender, who could have been convicted but for the vague and incomplete report. Be that as it may, even the prosecution did not bother to lay any motion before the trial court for retesting of the seized substance particularly when the FSL report was incomplete and not conclusive in nature as to the identity of the recovered material. The prosecution too has failed in its duty to request the trial court for retesting the recovered substance.
12. Once the learned trial court was of view that the identity of the recovered substance was required to be determined, then this Court fails to understand as to how the trial court could have determined the identity of the substance recovered from the petitioners during trial in absence of any retesting. Even in absence of any motion on the part of the prosecution for retesting of the recovered substance, as the accused was not expected to lay a motion for retesting because FSL report was running contrary to the prosecution story, the trial court could have directed the Investigating Officer for retesting the recovered material.
13. This Court is of the considered view that the learned trial court has fallen in grave error of law by charging the accused for commission of offences under sections 8, 21 and 29 of the Act in absence of the report of the Chemical Analyst that the substance for which the petitioners are being charged fell within the mischief of the Act. The law is well settled that the trial court is not supposed to act as a post office even at the time of framing of charge and charges are not to be framed merely because the challan for commission of a particular offence has 7 CRM(M) No. 08/2020 & Bail App No. 107/2019 been filed against the accused persons. In Dipakbhai Jagdishchandra Patel v. State of Gujarat, reported in (2019) 16 SCC 547, Apex Court has held as under:
"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
14. It is also relevant to take note of the judgment of Apex Court in Thana Singh v. Central Bureau of Narcotics, reported in (2013) 2 SCC 590, the relevant paras, 24 and 27, the same are reproduced as under:
" 24. The NDPS Act itself does not permit re-sampling or re- testing of samples. Yet, there has been a trend to the contrary; NDPS Courts have been consistently obliging to applications for re-testing and re-sampling. These applications add to delays as 8 CRM(M) No. 08/2020 & Bail App No. 107/2019 they are often received at advanced stages of trials after significant elapse of time. NDPS Courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [see State of Kerala v. Deepak P. Shah [2001 Cri LJ 2690 (Ker)] and Nihal Khan v. State (Govt. of NCT of Delhi) [2007 Cri LJ 2074 (Del)] ] or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-
testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re-testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re-testing.
27. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re- testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any 9 CRM(M) No. 08/2020 & Bail App No. 107/2019 compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act.
15. Thus, the re-sampling/retesting can be resorted to in exceptional cases and though the Hon'ble Apex Court has fixed the time limit for laying any motion for retesting but the time limit was prescribed taking in to consideration the manner in which the applications for retesting were being filed in routine and haphazard manner. So far as instant case is concerned, there is lapse on the part of both FSL expert and the prosecution and this Court cannot ignore the lapses on the part of the Investigating Officer as well as the FSL Expert and the present case can be termed as an exceptional case.
16. In view of what has been discussed above, this Court is of the considered opinion that the order dated 15.07.2019 passed by the trial court, by virtue of which the charges were framed against the petitioners is not sustainable and as such the same is set aside. However, this Court cannot ignore the lapses on the part of the Investigating Officer, prosecution as well as the FSL Expert and as such, this Court deems it proper to direct the Investigating Officer to further investigate the matter and get the seized material retested from the approved Government laboratory having all the facilities of conducting the tests so as to determine whether the seized material recovered from the petitioners falls within the mischief of the NDPS Act or not and the Investigating Officer shall complete the further investigation within a period of 60 days from the date copy of this order is supplied to him and thereafter, he shall file supplementary report before the trial court.
10 CRM(M) No. 08/2020 &Bail App No. 107/2019
17. As there is nothing on record that any prohibited substance/material under the Act has been recovered from the petitioners, the petitioners cannot be kept in custody, as such, this Court deems it proper to enlarge the petitioners on interim bail till the supplementary report is filed before the trial court on the following terms and conditions:
(i) subject to furnishing of two local sureties to the tune of Rs. 50,000/-
each to the satisfaction of the trial court.
(ii) they shall furnish an undertaking that they shall cooperate with the Investigating Officer as and when required.
(iii) they shall not contact with any of the prosecution witnesses during the investigation/trial.
18. In the event of violation of any of the conditions mentioned above, the respondents can lay a motion for cancellation of bail of the petitioners before this Court.
19. Registry is directed to furnish the copy of the order to Mr Sheikh Feroz, Dy. AG for compliance.
20. Copy of this order be placed on the record of each file. rR (RAJNESH OSWAL) JUDGE JAMMU 24.12.2020 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes RAKESH KUMAR 2020.12.24 17:10 I attest to the accuracy and integrity of this document