Jammu & Kashmir High Court
State Of J&K; vs Vishal Kumar And Anr on 15 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 03
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. 40/2015
Date of judgment: 15.11.2017
State of J&K vs. Vishal Kumar and anr
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice,
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Appellant (s) : Mr Ehsan Mirza, Dy. A. G.
For the Respondent(s) : Mr Sachin Sharma, Advocate for R-1.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Badar Durrez Ahmed, CJ (Oral)
1. The present acquittal appeal filed by the State is against the decision of the learned Principal Sessions Judge, Samba, dated 30.09.2014 in File No. 10/Special Challan, which was instituted on 11.10.2010. The said case arises out of FIR No. 167/2010 registered at Police Station Samba on 01.08.2010 under Sections 8, 21 and 22 of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as "the said Act").
2. The case of the prosecution was that, on 01.08.2010, Anil Kumar (Probationary Sub Inspector) along with other police personnel were on patrolling and checking duty at Palan Morh and were checking vehicles. In the course of checking vehicles, three persons were said to have disembarked from one of the vehicles and on seeing the police party they tried to flee from the spot. The police party became suspicious and chased and apprehended them. On CRAA No. 40/2015 Page 1 of 6 enquiry, the three persons disclosed their names as Vishal Kumar, Surjeet Kumar ( the respondent nos. 1 and 2 herein) and Ravi Kumar, who died after the presentation of the challan. It is alleged that upon personal search of Vishal Kumar, 5000 Pyremol Spasm capsules were allegedly recovered, and from the search of Surjeet Kumar, 250 Paravon Spas capsules were allegedly recovered from his possession. 52 Diazepam injections were said to have been recovered from the possession of Ravi Kumar, who has since died. The said capsules and injections were allegedly seized on the spot and samples of ten capsules each and three injections were taken for chemical examination and were said to have been sealed on the spot. It is the case of the prosecution that the samples were taken by Anil Kumar, PSI. The latter also sent a docket to the Police Station, Samba where upon FIR No. 167/2010 for commission of offences falling under Sections 8, 21 and 22 of the said Act was registered. The Investigation Officer - Samir Singh, ASI, came to the spot and started investigation. It is stated by the prosecution that statements of the witnesses under Section 161 Cr. P. C were recorded and the seized documents were presented by PSI, Anil Kumar. The alleged contraband was allegedly sealed in packets, marked as „A‟, „B‟ and „C‟. It is also alleged that the same were also re-sealed on the next day by the Executive Magistrate, Samba, and thereafter sent to the Forensic Science Laboratory, Jammu, for chemical examination. Eventually, after completion of the investigation, the challan was presented.
3. As mentioned above, after the presentation of the said challan, the accused Ravi Kumar died and as such, proceedings against him abated. The charge was framed by the trial Court on 16.04.2012 against the two respondents in respect of offences under Section 8, 21 and 22 of the said Act. Since they pleaded not guilty, trial ensued.
4. On the part of the prosecution, six witnesses were produced. PW-1, Sat Paul, the Executive Magistrate, who is said to have re-sealed the packets in CRAA No. 40/2015 Page 2 of 6 which the samples had allegedly been placed. However, in examination-in- chief, he stated that, on 02.08.2010 he had re-sealed two packets whereas in cross-examination he stated that three packets bearing mark „A‟, „B‟ and „C‟ were presented to him, which were already sealed and upon which he affixed his own seal.
5. PW-2, Neelam Kumar in his cross-examination, however, stated that instead of 250 Paravon Spas capsules, 200 such capsules were seized from Surjeet Kumar. He also stated that, there was no civilian or by-passer on the spot.
6. PW-3, Pawan Abrol, the Scientific Officer from Forensic Science Laboratory, Jammu, stated that, he received three packets on 07.08.2010, marked as „A‟, „B‟ and „C‟. It may be pertinent to point out that the alleged seizure was made on 01.08.2010. The results of the examination were submitted in his report, marked as exhibit-PA. The report was dated 24.08.2012. The said witness reiterated the contents of the chemical tests and chromatographic examination as under:-
"1. Dextropropoxyphene Hydrochloride, Dicyclomine hydrochloride and Paracetamol were found present in the Exhibit Nos. P-1582/2010 and P-1584/2010 .
2. Dextropropoxyphene Hydrochloride is a Narcotic Analgesic.
3. Dicyclomine hydrochloride is Anticholinergic.
4. Paracetamol is Analgesic and Antipyretic.
5. Bupre Norphine Hydrochloride was detected in the Exhibit No. P- 1583/2010.
6. Bupre Norphine Hydrochloride is a Narcotic Analgesic.
7. Promethazine Hydrochloride was detected in the Exhibit No. P-1583- a/2010..
8. Promthazine Hydrochloride is Anti histamine."
7. PW-4, Ram Lal was produced as an independent witness to the recovery. However, the said witness turned hostile as he pleaded ignorance about the occurrence. In cross examination by the prosecution he further stated CRAA No. 40/2015 Page 3 of 6 that the police had not recorded his statement and, that the alleged recovery from the possession of the accused was not made in his presence and, that the police had taken his signatures on a blank paper. Apart from this witness, no other independent witness has been examined.
8. PW-5, Dalbir Singh ( Head Constable), in his cross examination stated that they were not checking the vehicles. He contradicts the statement made in examination-in-chief. Furthermore, in cross examination the said witness has also stated that, at the time the accused were caught hold of, they were empty handed. He also, however, stated that there were one or two civilians present. In cross examination he further revealed that he did not know the name of the seized capsules. This witness also pleaded ignorance with regard to the proceedings said to have been conducted by the Investigating Officer on the spot. He also stated that although he did not know the name of the seized capsules, „his Sahib‟ told him that the capsules were intoxicants.
9. PW-6, Balbir Singh (Constable) in his cross examination stated that he does not remember from which vehicle the accused had disembarked. He also stated that the capsules were not opened in his presence so that he could see as to what the capsules were.
10. The defence did not lead any evidence and the accused pleaded innocence when the prosecution evidence was put to them in the course of statements recorded under Section 342 Cr.P.C.
11. The learned trial Court, after examining the evidence on record and hearing the counsel for the parties on both sides, thought it fit to pass an order of acquittal. The trial Court held that the prosecution had miserably failed to prove its case against the accused persons beyond reasonable doubt. Consequently, the trial Court acquitted them of the charges framed against them and directed that their bail bonds and personal bonds be discharged.
CRAA No. 40/2015 Page 4 of 612. Primarily, the trial Court took note of the fact that the samples, were allegedly taken and sealed by Anil Kumar, PSI, yet the said Anil Kumar was not produced by the prosecution. Furthermore, the Investigating Officer, Mr. Samir Singh (ASI), was also not produced. The trial Court, in our view, correctly was of the opinion that a number of questions could have been answered and light could have been thrown on the case, if Anil Kumar, PSI, and Samir Singh (ASI), had been produced by the prosecution. Their non-production has left gaping holes in the prosecution case.
13. Apart from this, the trial Court also noted that the FSL form, which is required to be filled at the spot when the samples are taken and the alleged packets marked as „A‟, „B‟ and „C‟ were seized, has also not been proved. Importantly, there is no record produced by the prosecution to establish that the seized items were kept in the Mal Khana. In fact the Mal Khana register was not produced and nor is there any witness testifying to the fact that the seized items were, after the alleged seizure on 01.08.2010, kept in the Mal Khana.
14. According to the prosecution, there were independent witnesses present at the scene but, apart from PW-4, Ram Lal, there is no other independent witness who has been produced by the prosecution and, even PW-4, Ram Lal, has pleaded ignorance with regard to the occurrence and was ultimately declared hostile.
15. There is also no evidence as to where the samples, in the alleged packets marked „A‟, „B‟ and „C‟, were kept between 02.08.2010 ( when the Executive Magistrate is said to have placed his seals on them) and 07.08.2010 ( when the FSL is said to have received them).
16. What is, of course, also important is that the quantity of the alleged narcotics has also not been established.
17. Considering all these factors, the trial Court has acquitted the respondents. We do not find any perversity in the said decision. Consequently, CRAA No. 40/2015 Page 5 of 6 the appeal is dismissed. The order passed by the trial Court is up held. The bail bonds furnished by the respondents, if any, stand cancelled and sureties, if any, stand discharged.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
15.11.2017
Anil Raina, Secy
CRAA No. 40/2015 Page 6 of 6