Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs Ghulam Mohammad Dar And Another on 24 December, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on : 15.12.2020
Pronounced on: 24.12.2020
CRAA No. 04/2012
IA No. 1/2018[12/2012]
State of J&K
.....Appellant (s)
Through :- Ms. Saba Gulzar, Advocate vice
Mr. B. A. Dar, Sr. AAG
V/s
Ghulam Mohammad Dar and another
.....Respondent(s)
Through :- None
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The present acquittal appeal has been preferred by the erstwhile State of J&K, now Union Territory of J&K against the judgment dated 25.02.2011 in case FIR bearing No. 07/2002 registered with Police Station, Sumbal for commission of offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short the Act), passed by the learned Principal Sessions Judge, Bandipora(hereinafter to be referred as the trial 2 CRAA No. 04/2012 court), by virtue of which respondent-Ghulam Mohammad Dar (now dead) and Abdul Hamid Bhat were acquitted.
2. The facts, which are necessary for the disposal of the present appeal are that on 11.01.2002 Police Station, Sumbal received an information from reliable sources that at Ganastan one Ghulam Mohammad Dar S/o Rahim Dar and Abdul Hamid Bhat S/o Gh. Mohd. Bhat both residents of Ganastan were selling charas. On receipt of information, the police registered FIR bearing No. 07/2002 under section 20 of the Act and the police raided the house along with Executive Magistrate on 11.01.2002 and recovered three kilograms of charas. After investigation, charge sheet for commission of commission under section 20 of the Act was laid against both the accused persons(respondents). Respondents were charge sheeted for commission of aforementioned offence on 13.03.2002 by learned Sessions Judge, Baramulla. As the respondents denied the charges, the prosecution was directed to lead the evidence. Thereafter, a separate District, namely, Bandipora was created by the erstwhile Government of the State of J&K , which was carved out from the area of Baramulla and the case was transferred to that court.
3. The prosecution during the span of nine years could produce only one witness, PW-Ali Mohammad Qadiri. His testimony is very necessary for evaluating the prosecution story. He has stated that he was working as Naib Tehsildar at Sumbal and police took him to Ganastan where the seized charas was recovered and seizure memo was prepared. On cross examination, stated that it was in the month of January 2002 and at about 12 noon, police party comprising of 5-6 police personnel went on spot. The contraband was recovered on the second story of the house. He has seen and smelt the charas 3 CRAA No. 04/2012 which was lying in two bags and it weighed 3 Kg. The accused were also sitting in the room. After the closure of the evidence, the accused examined Mohd. Afzal Beigh as defence witness. He has stated that in his opinion, the police have framed the false and baseless case and no such incident had taken place in his village. As being head of the village, he would have the knowledge of such incident, had such incident taken place. In cross-examination, stated that no incident had taken place in the month of February, 2002.
4. The learned trial court after hearing both the parties, dismissed the challan and acquitted the accused persons-respondents.
5. The appellant has assailed the judgment on the ground that the learned trial court has not rightly appreciated the evidence as the Executive Magistrate was an independent witness who had proved the recovery of charas from the house of the respondents and had also proved that the accused were sitting in the room at the time of recovery.
6. Ms. Saba Gulzar, learned counsel for the appellant has vehemently argued that the respondents can be convicted solely on the testimony of the independent witness, Ali Mohammad Qadiri.
7. Heard learned counsel for the appellant and perused the impugned judgment.
8. Except PW-Ali Mohammad Qadiri, no other witness has been produced by the prosecution during the span of nine years. The prosecution has also not examined the Forensic Science Laboratory Expert-Mr. Bashir Ahmad Yesbi and also the Investigating Officer. More so, it is not proved as to where 4 CRAA No. 04/2012 the alleged contraband was kept after its recovery was made. Simply on the basis of recovery without there being any evidence on record, that the recovered material was a narcotic drug/psychotropic substance, the accused persons cannot be convicted. The Investigating Officer is a very material witness in the Narcotic Drugs Psychotropic Substances cases as he is required to prove that after the recovery was effected and the samples were drawn they were kept in safe custody so as to negate any chance of tampering with the same. Non examination of the material witnesses have caused a dent to the prosecution story.
9. Learned counsel for the appellant has not been able to convince this Court that the opinion formed by the learned trial court is perverse and contrary to the facts led by the prosecution. No doubt the powers of the appellate court in appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusion there from the appellate court can interfere with the order of acquittal.
10. For all what has been discussed above, the trial court has rightly acquitted the respondents. The learned trial court while appreciating the evidence, has rightly come to the conclusion that the respondents are required to be acquitted. I have also perused the judgment passed by the trial court and I find that the finding recorded by the trial court can neither be termed as 5 CRAA No. 04/2012 perverse, contrary to the evidence nor erroneous, therefore no case is made out. In the result, this appeal is without any merit and is hereby dismissed.
(RAJNESH OSWAL) JUDGE Jammu 24.12.2020 Rakesh Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No RAKESH KUMAR 2020.12.24 17:10 I attest to the accuracy and integrity of this document