Jammu & Kashmir High Court
State Of J&K vs Romesh Kumar on 10 March, 2021
Bench: Tashi Rabstan, Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
...
CRAA No. 45/2011
Reserved on: 04.03.2021
Pronounced on 10.03.2021
State of J&K
.....Appellant(s)
Through :- Mr. Vishal Bharti, Dy. AG
v/s
Romesh Kumar
.....Respondent(s)
Through :- None
CORAM: Hon'ble Mr Justice Tashi Rabstan, Judge
Hon'ble Mr. Justice Vinod Chatterji Koul, Judge
JUDGMENT
Koul-J.
1. This Appeal is directed against the judgment dated 13.08.2010, passed by learned Special Judge Udhampur (hereinafter to be referred as the "Trial court") in case FIR No.53/2008 registered with Police Station Udhampur, for commission of offence punishable under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short "the Act"), by virtue whereof the respondent-Romesh Kumar has been acquitted of the aforesaid charges.
2. Brief facts of the case are that on 21.03.2008 at about 12.30 PM, SHO Police Station Udhampur along with constables was on patrol duty at Mian Bhag near Industrial Estate Dhar Road Udhampur and during checking and frisking, he found a person coming from Mian Bhag side 2 CRAA No. 45/2011 towards Udhampur holding a plastic bag in his hand and on seeing them, he tried to flee from the spot. The police party apprehended him who disclosed his name as Romesh Kumar S/o Titroo. On search, 51 pieces of charas covered in maize cob leaves, weighing about 3.5 Kgs were recovered from his possession. A docket was forwarded by SHO to Police Station Udhampur for registration of case and, accordingly, FIR No. 53/2008 for offence punishable under section 8/20 NDPS Act was registered against the respondent.
3. Investigating Officer SI, Padam Dev Singh, reached the spot and prepared sketch-map of the place of recovery. He got seized charas weighed, which was found to be 04 Kgs and sealed the charas. He prepared the sample of charas, weighing 80 gms, sealed the sample and marked it as - „A‟. He separately sealed the main bulk of the charas weighing 3.920 Gms and marked as „A-1‟. He got the sample resealed from Executive Magistrate and forwarded it to FSL, Jammu, for chemical analysis and recorded the statements of the witnesses. On completion of other formalities of the investigation, the charges for the offences punishable under sections 8/20 of the Act were framed against the accused/respondent, who denied the charges and opted for trial.
4. To prove the charges, the prosecution produced the oral as well as documentary evidence before the Trial Court.
Oral Evidence:
PW Prem Chand PW Neelam Kumar 3 CRAA No. 45/2011 PW Parshotam Kumar PW Harnam Singh PW Swami Raj PW Yudhveer Singh PW Ashwani Kumar PW Pawan Abrol PW Padam Dev Singh Documentary evidence:
Seizure memo of the contraband (Ext-P-1) Sapurdnama of the seal (Ext-P1-I) Entry made in the malkhana register (Ext-P-5) Certificate of the Executive Magistrate (Ext-P-7) Specimen seal for resealing the packet (Ext-7-1) Certificate issued by the Scientific Officer (Ext-P-6) Site Plan (Ext-P-10) Sapurdnama (Ext-1)
5. The Trial Court, upon hearing counsel for parties and appreciating evidence so produced, came to conclusion that charges have not proved, thus, acquitted accused-respondent and dismissed the challan.
6. The order of acquittal is challenged in this Appeal by the State precisely on the ground that the Trial court has not properly appreciated the evidence even though there was sufficient evidence on record to prove the charges and that the accused had committed a heinous offence, no leniency could be given to him.
7. We have heard learned counsel for the appellant, Mr. Vishal Bharti, Dy.A.G. and have also gone through the record on the file.
8. Mr. Bharti, while making his submissions, reiterated the grounds taken in the appeal. He has also averred that the Trial Court has fallen in error in holding infraction of the provisions of the Act and also holding that the prosecution has failed to prove the charge. According to 4 CRAA No. 45/2011 him, infact heinous offence has been committed by accused/respondent and prosecution has established that charas concealed by him in maize cob leaves and the scientific report has established that the sample sent to FSL for chemical examination was a narcotic substance; thus, it had been proved that accused was in conscious possession of charas. The Trial court, in view of proof produced, ought to have convicted accused/respondent inasmuch as order of acquittal has caused miscarriage of justice.
9. We have given our thoughtful consideration to the material on record as well as arguments advanced by learned counsel for appellant. We deem it necessary to give brief resume of evidence in order to appreciate the same and consider the appreciation of the evidence as well as arguments so put forth by the State counsel as well as grounds taken in the appeal.
10. PW-Prem Chand has stated that on 21.3.2008, he along with other constables was accompanying SHO of police station, Udhampur for checking and frisking duty at Mian Bhag, Dhar Road, Udhampur. The accused, carrying a white plastic bag in his hand, was on his way towards Udhampur. On seeing police party, he tried to flee but was apprehended. On checking he was found carrying charas in maize cob leaves. Out of the recovered cob leaves one piece of maize cob leaf was separately seized and sealed by the I.O. as sample for chemical examination and rest of the cob leaves were separately sealed by him; the seal used for sealing the packets was kept on his Suprdnama. In cross-examination he has stated that on the day of occurrence they had started their patrolling duty by official jeep at about 10 AM and reached on spot via Dubber Chowk and Chabutra Bazaar 5 CRAA No. 45/2011 Udhampur. However, no checking was conducted on their way to Mian Bhag. Accused was apprehended by the police party and was brought at the Nakka post. The police check post is situated at a distance of about 60 meters from the police Naka. The accused was brought to the police Naka and not at the police post. On apprehending of the accused, the contents of bag were not counted or weighed. A number of shops are situated near the police Naka. The office of Industrial Department is also situated nearby. The shops were open and traffic was flowing. The Charas was weighed along with maize cob leaves. The sample was also weighed along with the maize cob leaves. The sample was sealed in white cloth. No effort was made by the I.O. to associate any independent witness in the recovery and seizure of the Charas from the accused.
11. PW-Neelam Kumar constable has stated that on 21.3.2008, he was on patrolling duty along with SHO police station Udhampur at Mian Bhag. Accused was found coming towards Udhampur on Dhar Road but immediately returned back on seeing the police party. SHO asked his bodyguard to apprehend the accused. The accused was caught and was found holding a plastic bag in his hand. On checking, charas was found in maize cob leaves in the bag. S.I. Padam Dev Singh came on spot for investigation and found 51 pieces of maize cob leaves containing charas. Out of the main bulk, one maize cob leaf containing the charas was separately seized as sample for chemical analysis. Rest of the charas was separately sealed. Both the packets were separately sealed. At the time of occurrence, the vehicles on road were being checked by the police patrolling 6 CRAA No. 45/2011 party. People walking on foot were also being checked and frisked. There are 4/5 shops and office of the Industrial Department situated near to the police post. Accused was seen coming at a distance of about 100 meters, when he turned back and tried to flee, he along with other constables caught him after chasing. When the accused was caught, he was still holding the bag in his hand. Before preparing the sample of Charas for chemical analysis, the cob leaves were removed by the I.O. The sample was wrapped in a paper and then sealed with a white-cloth. The maize cob leaves shown to him in the court are wrapped in such a way that its contents cannot be identified. Both the proceedings of seizure and seal were conducted by the I.O in his presence but he cannot say as to whether the signatures of the accused were taken on the packets.
12. PW-Parshotam Singh has stated that he along with police constables and SHO police station Udhampur was on patrol duty at Mian Bhag on the day of occurrence. Accused was found coming on foot towards Udhampur holding with a bag in his hand who tried to run away on seeing the police-party. On the direction of SHO, he along with other constables ran and caught hold of the accused. On checking, accused was found carrying Charas in his bag, which was wrapped in a maize cob leaves. A written docket was sent to police station by SHO Udhampur and after about 20 minutes S.I along with weighing-scale reached on spot. On weighing, whole of 51, pieces of maize cob leaves were found 4 kgs. Out of whole bulk, one piece of maize cob leave was separately sealed by the I.O for chemical examination. He along with Constable Neelam Kumar and Vishal Kumar 7 CRAA No. 45/2011 chased the accused about half kilometer and then caught hold of him near petrol pump. At that time accused had thrown the bag which was picked up by Constable Neelam Kumar. The signatures of the accused were taken on both the packets prepared by the I.O.
13. PW-Harnam Singh has also stated on the similar lines. However, he stated that he deposited the sample with FSL and obtained its receipt. His signatures were not obtained by the Crime Moharar while handing over him the sample and the letter.
14. PW-Swami Raj, Head Constable is a Crime Moharar posted in police station Udhampur. On 21.3.2008 two packets were handed over to him by the SHO and to this effect, an entry was made at Sr. No. 120 in register No. l9. He has proved the coby of the entry made in the concerned register (marked as Ext-P-5). One of the seized packets has been shown to him in the court. The time of depositing the packets in the Malkhana has not been recorded in the register. The sample mark "A" was sealed with the official seal of the police station. One of the packets was handed over to Head Constable Harnam Singh on 29.3.2008 for being taken to FSL, Jammu.
15. PW-Yudhveer Singh SGC has stated that on 21.3.2008, he was accompanying the SHO at Mian Bhag, Udhampur. The police party was conducting a checking of the vehicles and frisking the pedestrians. Accused tried to flee on spotting the police party who was caught after being chased by the police party. Accused was found holding a bag in his hand containing charas. A written docket was sent by SHO through Prem Chand to police station, Udhampur for registration of case. I.O. Padam Dev Singh came on 8 CRAA No. 45/2011 spot and seized 51 pieces of maize cob leaves containing Charas, which were found weighing 4 Kgs. Out of the total bulk, one maize cob containing Charas was separately seized as sample for chemical analysis. Accused was apprehended near the petrol pump, which is situated at a distance of about six hundred meters from the police-Naka. The place of recovery is surrounded by shops. The I.O reached at petrol pump at about 2 PM. The accused was made to sit in the police Gypsy and his bag was also kept in it. Neither any shopkeeper nor any person from the petrol pump was called on spot by the I.O. The Charas was weighed along with maize cob leaves. The proceedings of seizure and sealing were going on when he had to leave for some urgent work. He has identified the seized packet in the court from its maize cob leaves.
16. PW- Ashwani Kumar is the Executive Magistrate and has stated that a seal packet marked as 'A' was brought to him by S.I Padam Dev Singh on 22.3.2008 for resealing. The packet was accordingly resealed by him and a certificate Ext-P-7 was issued by him. The packet which was resealed by him was already sealed by the police. The packet was not opened by him before resealing to examine its contents.
17. PW-Pawan Abrol is the Scientific Officer, who has subjected the seized sample of Charas to various chemical/ microscopical, and chromatographic examinations and has identified it as charas. He has issued the certificate exhibited as Ext-P-6. Packet for examination was received by him on 29.03.2008 through PW Harnam Singh.
9CRAA No. 45/2011
18. PW-Padam Dev Singh conducted the investigation of the case and has stated that during the investigation of the case, he registered a case FIR No.53/08 for the commission the commission of offence u/s 8/20 NDPS Act. He recovered 51 pieces of Charas wrapped in maize cob leaves kept in a plastic bag by the accused which weighed 4 Kgs. Out of the total lot, one piece of Charas wrapped in maize cob leaves was seized as sample for chemical analysis and remaining 50 pieces of maize cob leaves of Charas were separately seized in the packet marked as A-1 and sealed them with a seal, which was kept on the Sapurdnama of Prem Chand constable. The commission of offence u/s 8/20 NDPS Act was found established against the accused. In cross-examination he has stated that he reached on spot at 2 PM for investigation of the case. The police patrolling party was found standing nearby check-post Mian Bhag and accused was also standing on the road side. Police personnel posted at check post were not associated in the investigation of the case. Place of recovery is situated at Omarha Morh and on both sides of the road there are a number of shops. There is also a heavy flow of traffic on the road. None of the adjoining shopkeeper was called to be the witness of the seizure-memo of the Charas. The Charas was weighed along with maize cob leaves. The leaves were not separately weighed. The sample was weighed after removing the cob leaves. The sample was wrapped in a newspaper and then sealed in a white cloth. The sample after chemical analysis was not taken back from the FSL Jammu. No civilian has been associated in the recovery and seizure of the Charas from the accused. The signatures of the accused were taken on the sample of Charas. The 10 CRAA No. 45/2011 sample of Charas remained with moharar of police station from 21.3.2008 to 29.3.2008.
19. On perusal of the judgment rendered by the learned Trial court impugned in this appeal, it is evident and clear that the Trial court had while passing the impugned judgment considered whole of the evidence produced by the prosecution as stated hereinabove. As per the statement of PW Yudhveer Singh, the accused/respondent was apprehended by the police near the petrol pump at Dhar Road and contraband was recovered from him, however, as per the statement of PW Parshotam Kumar, police chased the accused, who threw the bag alongside the road and tried to run away from the spot but was apprehended after he was chased for a distance of about half kilometer and was brought near to the petrol pump. PW Neelam Kumar brought the bag containing the contraband from the road side. The place of recovery again disputed by PW Prem Chand, who has said that the accused was brought to Police Naka where he was searched and contraband was found in his possession, so all the three witnesses have given different version with regard to the place where the recovery was effected. Had they been present on the spot and had the recovery been effected from the possession of accused, the contrary statements as regards place of recovery would have not arisen. The Investigating Officer has stated that when he reached the spot, he found SHO and accused standing on the road side near the check post and contraband was recovered and seized from accused at the police check post only. So far as the place of recovery is concerned, there is material contradiction in the statements of the prosecution witnesses. It has 11 CRAA No. 45/2011 come in the evidence of the prosecution witnesses that some shops were situated there, where the recovery was effected and accused was apprehended, but no effort has been made by Investigating Officer to associate anyone among those shopkeepers in the investigation. It has nowhere been stated that Investigating Officer has approached said witnesses but they refused to associate with the investigation. It is true that independent witnesses ordinarily do not associate with the investigation but an effort is required to be made by Investigating Officer for association in the investigation but no such effort has been made in this case. There is material contradiction with regard to recovery of contraband from possession of accused and the place wherefrom accused was apprehended and recovery effected.
20. The provisions of the Act provide for stringent punishment on the proof of charge and in view of this, stringent nature of punishment has been provided under the Act. A transparent investigation is required to be conducted in such a manner so that there is no room for any apprehension of false implication. The procedure, such as, seizure, sealing, sampling and keeping the material in safe custody are required to be strictly followed. There is no apprehension of any chance of tampering with the sample or with the contraband, every such steps should be taken to remove such apprehensions. In this case, the Investigating Officer has failed to observe the rules which have been framed for recovery and seizure of contraband under the provisions of the Act. In the present case, Constable, Prem Chand, is subordinate of the Investigating Officer. The sample is shown to have 12 CRAA No. 45/2011 been sealed and the sealed sample was kept on the sapurdnama of said constable Prem Chand, who not only being the subordinate of the Investigating Officer, was also serving under him in the same Police Station so when such a sealing of the sample is kept with a subordinate, who is under the control of Investigating Officer, the possession of the seal by such constable is as good as possession with the Investigating Officer, so in a situation where the seal is in possession of an officer under the control of Investigating Officer, one cannot say that there is chance of the sample or the seal being tampered with. Even there should be no apprehension of such possibility. The Investigating Officer after having sealed the sample should have kept the said seal on the sapurdnama of an independent person or a person other than his subordinate, who was not posted in the said Police Station or was not under his command or control. This infraction itself is a ground for the defence to demonstrate that there was every possibility of the sample being tampered with, therefore, the accused has been rightly acquitted. The Investigating Officer, as is evident from the record as well as statement of the witnesses including that of PW Pawan Abrol, has violated the safeguards, which were available to accused with regard to preparation of sample for chemical analysis. PW Neelam Kumar and Investigating Officer have stated that the cob leaves covering charas was removed before it was sealed for chemical examination. Investigating Officer has stated that before the sample was sealed in white cloth, it was wrapped in a piece of newspaper, but PW Prem Chand and Parshotam Kumar say that the sample was sealed along with the maize cob leaves. PW Pawan Abrol has also stated that one twisted flat piece of some greenish black colour material 13 CRAA No. 45/2011 wrapped in cob leaves was found in the packet, which contradicts the statement of Investigating Officer, so having regard to statement of Investigating Officer as regards sample prepared, and sample received by Chemical Analyst, a doubt is created whether the sample, examined by the Chemical Analyst was the same sealed on the spot by Investigating Officer. Therefore, on the discussion made hereinabove, it is clear that the prosecution has not properly investigated the case and investigation has been conducted in violation of the provisions of the Act and safeguards provided to the accused.
21. The law on the subject is well settled. The scope of interference as regards acquittals recorded by the Trial court has been discussed and decided by the Apex Court in the case of "Sambhaji Hindurao Deshmukh v. State of Maharashtra," reported in (2008) 11 SCC 186. It was held:
"13. The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt (vide Ganesh Bhavan Patel v. State of Maharashtra[(1978) 4 SCC 371 : 1979 SCC (Cri) 1], Babu v. State of U.P. [(1983) 2 SCC 21: 1983 SCC (Cri) 332], Awadhesh v. State of M.P. [(1988) 2 SCC 557: 1988 SCC (Cri) 361], Thanedar Singh v. State of M.P. [(2002) 1 SCC 487: 2002 SCC (Cri) 153] and State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965]."
22. From the above it is derivable that while the High Court can review entire evidence and reach its own conclusions, it will not interfere 14 CRAA No. 45/2011 with the acquittal by the Trial Court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the Trial court, which were the basis for acquittal and that the High Court has to give due importance to the conclusions of the Trial Court, if they had been arrived at after proper appreciation of the evidence. It also emerges that the High Court will interfere in appeals against acquittals, only where the Trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly.
23. For the reasons stated above, we do not find any merit in this appeal to interfere with the judgment, whereby challan filed against the respondent has been dismissed, as such, this appeal is dismissed.
24. Copy be sent down along with Trial Court record.
(Vinod Chatterji Koul) (Tashi Rabstan)
Judge Judge
Jammu:
10.03.2021
Rakesh
Whether approved for reporting? Yes/No