Jammu & Kashmir High Court
State vs Rooshan Lal on 1 November, 2017
Author: Alok Aradhe
Bench: Alok Aradhe, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No.85/2017
Date of order: 01.11.2017
State V. Roshan Lal
Coram:
Hon'ble Mr Justice Alok Aradhe, Judge
Hon'ble Mr Justice Tashi Rabstan, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. L K Moza, AAG.
For respondent (s) : Mr. Mohd Arif, and Mr. Mehmood Rizvi, Advocates.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
Per Alok Aradhe,J:
Heard. This criminal acquittal appeal has been filed against the judgment dated 19.05.2016 passed by the Trial Court by which the respondent has been acquitted in respect of offences under Sections 8/21/22 of the NDPS Act.
2. The prosecution story in nutshell is that on 29.06.2011, officers of the police station Kathua had laid a naka near Maggar Khad Bridge on National Highway. At about 3.15 p.m, they intercepted a scooter bearing registration No.JK08-6628 which was coming from Lakhanpur towards Hiranagar. On search being made from the dickey of the scooter, 800 capsules of Parvon Spas were recovered. Thereupon, FIR was registered and the investigation commenced. The police after completion of the investigation filed charge sheet against the respondent. Learned AAG for the appellant submitted that it was a case of chance recovery and the contraband material was recovered from the dickey of the scooter. It is further submitted that contraband material was kept in the Malkhana and on 29.06.2011, recovery was made and on 01.07.2011, the sample was sent to FSL. It is further submitted that CRAA No.85/2017 Page 1 of 4 evidence of PW-6 has not been impeached by the respondent in which he has clearly stated that the contraband material was deposited in the Malkhana. It is also submitted that prosecution has followed all the procedural safeguards contained in the Act. The trial Court has failed to view the evidence on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. In support of his submission, learned AAG has placed reliance on the judgment passed by the Supreme Court in the case State of Punjab v. Lakhwinder Singh and Another, 2010 (4) SCC 402. On the other hand, learned counsels for the respondents have supported the judgment passed by the Trial Court.
3. We have considered the submissions made by learned counsel for the parties and have perused the record. From the perusal of the record, it is evident that the alleged contraband was seized on 29.06.2011 and was presented before the Executive Magistrate for re-sealing on 01.07.2011 and thereafter the same was forwarded to FSL on 02.07.2011. PW-9, Anayat Ali, the I. O., has stated that the sample was handed over by him to Munshi of the Police Post. He has stated in his cross examination that there is no mention of this fact in the case diary nor there is any mention of the serial number of the Malkhana Register. He has further admitted that there is no mention in the case diary regarding the withdrawal of the sample and redeposit of the sample in the Malkhana. PW-Varinder Kumar Sharma, the Malkhana incharge of police post has stated that on 29.06.2011, two packets and a scooter were handed over to him and he made entry in this regard in the register of Malkhana. However, it is pertinent to mention here that even though both the aforesaid witnesses have been cross examined by the defense yet the Malkhana Register was neither seized during the investigation nor was produced before the Court and even its relevant extract has not been made the part of the charge sheet. In other words, the prosecution has failed to establish the safe custody of the sample from the time of its seizure till the same was forwarded to the FSL for examination. There is no explanation with regard to custody of the sample from CRAA No.85/2017 Page 2 of 4 29.06.2011 till 02.07.2011 i.e. the date on which it was dispatched to FSL. The prosecution has failed to follow the requirement of Section 55 of the NDPS Act. The prosecution has also failed to place on record the Letter dated 01.07.2011 where-under Deputy Superintendent of Police, Kathua had allegedly forwarded the sealed samples of FSL. Therefore the factum of dispatch of the samples to FSL remained unsubstantiated.
5. It is also pertinent to mention here that the alleged contraband was seized on National Highway and there was availability of civil witnesses on the spot. However, no civil witness has been associated in search and seizure proceedings. It is also pertinent to mention here that there is a glaring contradiction in the prosecution witness with regard to search and seizure proceedings relating to contraband article. According to ASI Sher Ali, Bhusan Sharma, Abdul Rashid and SI Anayat Ali, the proceeding regarding search and seizure of the alleged contraband on spot were conducted by PW ASI Sher Ali. These witnesses have stated that documents like seizure memo of contraband drugs, seizure memo of Scooter and Superdnama of seal were prepared by PW-ASI Sher Ali. He is the person who sealed the sample on spot. However, PW-Rajesh Kumar who was also member of the naka party has stated that it is the investigating officer PW Anayat Ali who conducted all these proceedings prior to registration of FIR. There is also contradiction with regard to timing of the conclusion of the proceeding on the spot. PW-ASI Sher Ali has stated that the proceedings concluded and he along with IO came back from the place of occurrence at about 6 pm. However, according to the IO, SI Anayat Ali, the proceedings concluded at about 4.30 pm. So far as reliance placed by the learned AAG on the judgment passed by the Supreme Court in the case of Lakhwinder Singh (supra), the aforesaid decision is of no assistance to learned AAG as the same is authority for the proposition that mere delay of seven days in sending the sample is not fatal to the case of the prosecution.
5. The Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that CRAA No.85/2017 Page 3 of 4 this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the Trial Court is also 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 or perverse. (See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124.
6. From perusal of the judgment of the Trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.
(Tashi Rabstan) (Alok Aradhe)
Judge Judge
Jammu
01.11.2017
Raj Kumar
CRAA No.85/2017 Page 4 of 4