Jammu & Kashmir High Court
Asha Singh And Another vs State Of J&K on 26 November, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CRA No. 30/2018 (O&M)
Reserved on: 29.09.2021
Pronounced on: 26.11.2021
Asha Singh and another .....Appellant/Petitioner(s)
Through :- Mr. K. S. Johal, Sr. Advocate with
Mr. Supreet Singh Johal, Advocate.
v/s
State of J&K .....Respondent(s)
Through :- Mr. Aseem Sawhney, AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The present appeal is arising out of judgment dated 11.07.2018 and order dated 12.07.2018 passed by the learned 1 st Additional Sessions Judge, Jammu (hereinafter to be referred as the trial Court) by virtue of which, the appellants have been convicted for commission of offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") and have been sentenced to undergo rigorous imprisonment for a period of ten years each with a fine of Rs. One lakh each and in default of payment of fine, the appellants have been further ordered to undergo rigorous imprisonment for a further period of six months each. Grounds:
2. The appellants have impugned the judgment dated 11.07.2018 and order dated 12.07.2018 on the grounds that the trial Court has not appreciated the evidence in its right perspective and further has not taken into 2 CRA No. 30/2018 consideration the contention of the appellants regarding non-production of material witness, namely, PW-Yasir Rashid, who carried the docket to the concerned Police Station for registration of FIR, particularly when after the closure of prosecution evidence, the said witness was summoned by the trial Court on the motion laid by the prosecution under Section 540 of Cr.P.C.; that there is material contradiction with regard to the commencement of the investigation by the investigating officer (IO) as IO in his cross examination, has stated that he reached the spot at about 10:30 p.m. and thereafter commenced investigation whereas all other witnesses have categorically stated that IO came on spot at 8:30 p.m. and took the accused along with seized material with him at about 9:00 p.m. that is altogether different so far as the contents of FIR is concerned; that IO, namely, Mukhtiar Ali in his cross examination had stated that when he reached the place of occurrence, a docket was given to him by ASI-PW-Akbar Hussain which is contrary to the prosecution story; that the learned trial court has not appreciated that both the independent witnesses i.e. PW-3 Mohd. Alam and PW-4 Mohd. Javed have not supported the prosecution case and have categorically stated in their statements before the trial Court that no contraband was recovered from the possession of the appellants in their presence; that as per the provisions of NDPS Act, it was imperative on the part of the investigating Agency to prove the re-sealing of the samples but in the instant case, Naib Tehsildar, namely Saif-ul-Maluk, who allegedly re-sealed the samples was not listed in the list as witness but was examined later on, on the motion of prosecution in terms of Section 540 of Cr.P.C., however, the original certificate pertaining to re- sealing of samples was neither in the court file nor with CD file which means 3 CRA No. 30/2018 that re-sealing of the samples was not at all proved by the prosecution; that the seal used for sealing the samples was kept on the Supardnama of PW- Constable Shahjahan, but the said witness never produced the seal before the Court as also the I.O did not bother to hand over the ring used for sealing to independent witnesses; that there was delay in forwarding the samples to FSL for chemical examination as the material was seized on 27.04.2016 and samples those were taken from the seized material were sent to Naib Tehsildar for re-sealing on 02.05.2016 and further that the samples were received in the laboratory on 03.05.2016; that there is delay of six days in sending the samples to the FSL for which the prosecution has offered no explanation; that the IO did not bother to annex copy of Malkhana Register by virtue of which it can be established that the samples were kept in the safe custody and the Mohrar Head Constable was not cited as a witness in the case which clearly shows that the prosecution miserably failed to prove the safe custody of the samples till they reached the FSL; that two witnesses, who were allowed to be re-examined by the trial Court by allowing application of the prosecution in terms of the Section 540 of Cr.P.C. i.e. PW-Shah Jahan and PW-Mukhtiar Ali could not identify the material showed to them in the Court by the Public Prosecutor and this fact has not been considered by the learned trial court and that it is not forthcoming from the charge sheet from where the seals of SDPO appeared on the samples which clearly shows that the samples were tempered by the investigating agency and that the provisions of Sections 52, 55 and 57 of the NDPS Act have not been complied with.
Prosecution's Case:
4 CRA No. 30/2018
3. The facts emanating from the charge sheet are that a docket was sent by ASI-Akbar Hussain through Constable Yasir Rashid for the purpose of registration of FIR on 27.04.2016, pursuant to which, FIR bearing No. 73 of 2016 for commission of offences under Section 8/20 of NDPS Act was registered by the Police Station Bahu Fort, Jammu. In the docket, it was stated that on 27.04.2016, ASI-Akbar Hussain along with HC-Shahjahan, Constable- Abdul Qayoom, SGCT-Ghulam Mohd., Constable-Mohd. Irshad and Constable-Yasir Rashid was performing naka duty at Sunjwan Morh and during checking at 8:00 p.m., one truck bearing Registration No. JK02AL- 5781 going from Narwal towards Kunjwani, loaded with two tractors, was stopped for checking. The driver disclosed his name as Kali Dass S/o Som Nath and the owner of the truck revealed his name as Asha Singh S/o Babu Ram. When the truck was checked, one bag was found beneath the seat of the driver that was having six packets containing charas like material. On receipt of this docket, FIR was registered by the concerned Police Station and investigation of the case was handed over to Sub Inspector, Mukhtiar Ali. IO, namely, Mukhtiar Ali reached on spot and seized the six packets and they were weighed on spot. The weight of contraband was found to be 12 kg 480 grams. From each packet 30-30 grams of charas was taken for the purpose of samples for its examination by the FSL Jammu. Samples were sealed on spot with a ring having the impression "N". The seizure memos of the truck and the contraband were prepared on spot. During the course of investigation, the IO recorded the statements of the witnesses and got the samples re-sealed from the Magistrate and sent to FSL for its examination. The report was received from FSL and after the conclusion of the investigation, the charge 5 CRA No. 30/2018 Sheet for commission of offences under Sections 8/20 of NDPS was filed on 11.06.2016 against the appellants in the Court of learned Principal Sessions Judge, Jammu and the same was transferred to trial Court. The trial Court framed the charges for commission of offence under Section 8/20 of NDPS Act against both the accused. The prosecution examined 12 witnesses and the statement of one witness PW No.7 Javed Ahmed was admitted by the appellants. After conclusion of the prosecution evidence, statements of the appellants were recorded under Section 342 of Cr.P.C. and vide judgment and order impugned, the accused were convicted and sentenced to undergo rigorous imprisonment for a period of ten years each along with a fine of Rs. one lakh each and in default of payment of fine, they have been further ordered to undergo rigorous imprisonment of six months each. SUBMISSIONS:
4. Mr. K. S. Johal, learned Sr. Counsel assisted by Mr. Supreet Singh Johal, Advocate vehemently argued that independent witnesses have not supported the prosecution story, as such, the prosecution has miserably failed to prove its case beyond any doubt. He further urged that there is no evidence on record to demonstrate that the samples were kept in a safe custody from the date when they were seized and prepared on spot till the same reached FSL. He further stated that the prosecution has miserably failed to prove the recovery of the contraband from the appellants.
5. Per contra, Mr. Aseem Sawhney argued that prosecution has successfully proved its case beyond any shadow of doubt as it hardly matters if the independent witnesses do not support the prosecution case particularly, when the police witnesses have proved the case beyond any shadow of doubt.6 CRA No. 30/2018
6. Heard learned counsel for the parties and perused the record.
Evidence of Prosecution
7. In order to appreciate the contention of the respective parties, it is necessary to have brief resume of the evidence led by the prosecution. PW-1 Akbar Hussain (ASI) stated that he knows the accused. On 16.04.2016, he along with others i.e. Head Constable-Shahjahan, Constable-Mohd. Irshad, Constable-Yasir Rashid was performing Naka duty at Wave Mall. At around 8:00 p.m., one truck bearing No. JK02AL-5781 (having ten tyres) was going from Narwal towards Kunjwani. The truck was loaded with scrap of tractors. They stopped and checked the truck and during checking, driver got nervous and while searching the truck, one white plastic bag having six packets was found beneath the seat of the driver. One of the packets was opened and charas like material was found from it. Weight was about 12 and ½ kg. He prepared the docket and sent the same to the Police Station, Bahu Fort through Constable-Yasir Rashid and also informed the Police Station on telephone. Thereafter, Dy.S.P and SHO came on spot. He proved the docket as EXTP-1.
8. In cross examination, he stated that they proceeded from the Police Post at around 5:30 p.m. and he had made entry in the Roznamcha and Gypsy was driven by Ashok Kumar. It was mentioned in the Roznamcha that they were going for laying Naka at Wave Mall. Prior to stopping of the truck, they checked around 10 to 20 vehicles. Vehicle in question was stopped by the Constable-Irshad. He has not mentioned in the EXTP-1 that the scrap of the tractors was loaded in the truck. When the driver got nervous, he got suspicious that there was some material in the truck. He had neither taken the accused before any Magistrate nor any Gazatted officer was brought on spot. 7 CRA No. 30/2018 Constable-Abdul Qayoom recovered the contraband from the truck. Out of six packets, one packet was opened and he came to know that it was charas and the packet was having only one round of charas. He cannot say about the contents of other five packets and he had not weighed the same. He has not mentioned the weight of charas as 12 ½ kgs in his docket. The docket is in his hand writing and bears his signatures. Officer Incharge reached the spot after 25 to 30 minutes. Constable-Yasir Rashid went to the Police Station on his motor cycle. He along with Police came at Police Post at around 8:45 p.m. He had not prepared the seizure memo on spot. His statement was not recorded by the IO.
9. PW-2-Head Constable-Shahjahan stated that he knows the accused. On 27.04.2016, he along with other police officials had laid a Naka in front of Wave Mall and around 8:00 p.m., one truck bearing registration No. JK02AL-5781 going from Narwal to Kunjwani, was stopped and checked. The truck was driven by Kali Dass and owner of the truck Asha Singh was also in the truck. When the truck was checked, one plastic bag was found beneath the seat of the driver that was containing six packets wrapped in polythene and the charas weighing 12 kg and 480 grams was found in it. The charas was got weighed by Incharge Police Post through shop keeper Javed S/o Faker Din. 30-30 grams of charas was extracted from each of the packets and samples were prepared and marked as A and A-1. Ring was kept on his supardnama. Seizure memo was prepared in his presence and was signed by him as well as Sarpanch, namely, Noor Alam. The contents of seizure memo are true and they are marked as EXTP-2 and EXTP-2/1. The scrap of tractors was loaded in the truck. In cross examination, he stated that 8 CRA No. 30/2018 he did not accompany the investigating officer on spot but he was already there. Prior to the checking of the truck, 30-40 vehicles were also checked. This is correct that place of occurrence was a road. When the truck was stopped, vehicles were plying on the road. The truck was stopped by ASI- Akbar Hussain. ASI had gone inside the truck. A bag was recovered by ASI from the truck and he told that it was having charas. Time was 8:30 p.m. Incharge Police Post had come on spot after 10 to 15 minutes. During checking, no civilian was called on spot. Incharge Police Post had brought the weighing machine with him and the machine was electronic. He did not know the weight of each packet. 30-30 grams was extracted from each packet and the samples were wrapped in a cloth. Ring was with him and it was used for the purpose of sealing. Six ring impressions were affixed upon the packets. There were six packets and they were sealed separately. It took about 1 and ½ hour for completion of proceedings and thereafter they along with ASI came back at Police Post at around 9:30 p.m. There was darkness at that point of time but there was a flood light. EXTP-2 and EXTP-2/1 were prepared by Sub Inspector himself and his statement was also recorded by Sub Inspector. Sarpanch of Narwal was present on spot. Ring was given to him and not to Sarpanch. He had kept the ring in Police Post. He has not produced ring in the court but can produce the same, if ordered by the court. His statement was recorded on spot. The photographs were also taken. This witness was re- examined by the trial court pursuant to the motion laid by the prosecution in terms of Section 540 of Cr.P.C. In his chief examination, he stated that seizure memo was prepared in his presence and he had signed the same. He identified the six packets those were recovered from appellants. In cross examination, he 9 CRA No. 30/2018 stated that his earlier statement was correct. Seized material that was shown to him in the court today was laying in a bag which was wrapped in cloth bag. The bag was having eleven seals and inside it six packets were found those were not sealed. He had given a statement that each packet was sealed with six seals but the packets those have been seen by him are not sealed. Seized packets were not sealed by him but were sealed by IO. The material shown to him today is in the shape of strips.
10. PW-3 Mohammad Alam stated that he does not know the accused present in the court and also does not know anything about the occurrence. He does not know about the matter in which the accused are in custody. The said witness was declared hostile and was cross-examined by APP. In cross-examination, he stated that he had not signed any paper and the seizure memo did not carry his signatures. He had gone to the Police Post two months ago and his signatures were not obtained on any paper. In the year 2016, Mukhtar Ali was Incharge Police Post, Bathindi and he knew his name.
11. PW-4 Mohammed Javed stated that he did not remember the date when the Police called him to the Police Post, Bhatindi. Police had taken his weighing machine and they had stated that his machine did not switch on. He had gone to the Police Post between the at 4-5 PM. Police had told him that Charas was to be weighed on the weighing machine. Police had taken the weighing machine 2-3 hours ago. In cross-examination, he stated that SPO Somnath had taken weighing machine from him at 2 PM. He did not have any personal knowledge about the charas. The Police had told him that charas was to be weighed and for that reason weighing machine was taken. He switched on the weighing machine in the Police Post and thereafter returned. 10 CRA No. 30/2018
12. PW-5 Constable Irshad Ahmed stated that in the year 2016, he was posted at Police Post Bathindi. He knows the accused present in the court. On 27-4-2016, he was deputed along with others for Naka duty at Sunjwan Morh. ASI Akbar was In-charge of Naka. At around 8 PM, one truck bearing number JK02AL/5781 was going from Narwal towards Kunjwani. Vehicle was checked. One white bag was recovered from beneath the seat of driver and it was containing 6 packets. The bag was opened by ASI Akbar and charas was recovered from the bag. It was 12 kg 480 gms. The accused Kalidas was the driver of the truck and accused Assa Singh, who was owner of the truck, was also in the truck. ASI Akbar prepared the docket for registration of a FIR and sent the same to police station Bagh-e-Bahu. After registration of a FIR, SHO, SD PO reached the place of occurrence after 10- 15 minutes and conducted the further proceedings. He proceeded for his duty and his statement was recorded by the investigating officer. His signatures were obtained only on his statement and not on any other paper. Seizure memo marked Ext - P2 bears his signatures. In cross-examination, he stated that they proceeded from police Post between at 8 PM in a Gypsy along with 5-6 police personnel. The vehicles in question arrived after 10-15 minutes of laying Naka. A number of vehicles were stopped there for checking when the vehicle in question was stopped. ASI Akbar had gone inside the vehicle and rest all the personnel were checking the other vehicles. Then ASI had opened the bag, he was checking the other vehicles. He had called and told him that it was recovered. He had not seen as to what was lying in the bag. The bag was weighed on electronic weighing machine. He did not know about the weight of each packet. ASI Akbar told that 12 KG 840 gms. of charas was recovered 11 CRA No. 30/2018 from the accused. No civilian was called on spot in his presence. He did not know about the proceedings, those were conducted on spot. He did not know the contents of Ext-P2.
13. PW-6 Constable-Abdul Qayoom stated that he knows accused. On 27.04.2016, he was posted at Police Post Bathindi. On that day, he along with ASI-Akbar Hussain, Head Constable-Shahjahan, SGCT Ghulam Mohd., Constable Mohd. Irshad and Constable Yasir Rashid was performing a naka duty at Sunjawan Morh. The naka was laid at 8:00 p.m. and the vehicles were being checked. One truck bearing No. JK02AL-5781 coming from Narwal towards Kunjwani was stopped and checked. During checking, it was found that the tractors were loaded in the truck and beneath the seat of the driver one white bag was found that was having six polythene bags containing charas. ASI prepared docket for the purpose of registration of FIR and sent through Constable-Yasir Rashid. ASI had also informed the Police Station on phone. Name of the driver was Kali Dass and the name of the other person was Asha Singh. I/C Police Station came on spot and also brought weighing machine. One shopkeeper was also accompanying him. SHO/SDPO also came on spot. Charas was weighed and weight of the charas was found as 12 kg 480 grams. 30-30 grams of charas was extracted from the packets for FSL and samples were prepared and sealed. Ring was kept on Superdnama of Shahjanan The contents of Superdnama EXTP2/1 are true and bears his signatures. His statement was recorded by IO. In cross examination, he stated that they had made entry with regard to their departure in the Roznamcha. They had proceeded for Naka in the Gypsy of SHO. He does not remember the name of the driver of the Gypsy. It took ten minutes for reaching on spot. After 5/6 12 CRA No. 30/2018 minutes of laying naka vehicle in question came on spot. The vehicle was stopped by Constable Shahjahan. This is correct that place of naka is a public road and in front there was Wave Mall. Shops were open. Constable Shahjahan had not called any civilian on spot before checking. He does not remember who mounted on the vehicle for the purpose of checking. Contraband was recovered by Head Constable-Shahjahan and was handed over to ASI. Bag was opened by ASI. Six packets were not wrapped with the tape but they were polythene bags. He does not remember the colour of the polythene bag containing the six packets. He does not know as to how many balls of charas were in each packet. Docket was taken by Yasir Rashid. Incharge Police Post had reached on spot after 4/5 minutes and he was called by ASI on phone. SHO and SDPO had come after 10 to 15 minutes on spot. Charas was weighed in his presence. EXTP-2/1 was prepared by ASI in his presence. His statement was recorded on the same day by ASI.
14. PW-7 Javed Ahmed, whose statement was admitted by the appellants in terms of section 272(1) Cr.P.C is a witness regarding the ownership of scrap of tractors and loading of the same in truck. The scrap was further released on his supurdnama by the trial court.
15. PW-8 Sgct. Mohammed Sharif stated that he knows the accused. On 27-4-2016, ASI Akbar was checking at Sunjwan Morh. At 6:00 PM, ASI Akbar called In-charge Police Post on phone and stated that he had seized one truck bearing number JK02AL 5781 and recovered 12 kg 480 g charas from the same. 12 kg 480 g of charas was presented before him and 30/30 g of charas in 6 packets was extracted and rest of the 12 kg and 300 gms. of charas was deposited with him in the Malkhana. The charas was 13 CRA No. 30/2018 deposited in the Malkhana of the Police Post between the on 08-06-2016. In cross-examination, he stated that ASI Akbar along with his team proceeded for Naka duty at 4:30 PM. They went in a Gypsy and Ashok Kumar was its driver. When ASI called on phone at 6 PM, he was along with In-charge police Post. In-charge police Post had proceeded on spot at 6 PM. In-charge police Post had extracted 30-30 gms. of charas from each packet in the police Post. He had seen the charas in the form of round balls. He did not know about the number of balls. Incharge Police Post had deposited 12 kg 300 g of charas with him on 08-06-2016 in the Malkhana and the samples were sent on the said date for examination by FSL. When In-charge police Post deposited the charas on 08-06-2016 in the Malkhana, no entry was made in the register. In-charge police Post had produced the charas before him after 2-2 ½ hours of the occurrence. In-charge police Post had got his statement recorded on 08- 06-2016 through Constable Shahjahan. The weighing machine was brought from shopkeeper Javaid Ahmad for weighing the contraband in the police Post.
16. PW-9 Swaran Singh stated that Truck was lying in Police Post Bathindi and he had got the same released on supurdanama. The Truck was under hire purchase with Sudershan Hire Purchase ltd. He did not know Kali Das and also as to who was the driver. He identified the signatures on Supurdnama(Ext-P9). In cross-examination stated that he did not know as to in which occurrence truck was seized.
17. PW-10 Pawan Abrol-Scientific Officer, stated that on 03.05.2017, he received one sealed packet, forwarded by Dy.SP SDPO City East Jammu, vide his letter No. 7921-23/SDCE dated 02.05.2016, through S.I. 14 CRA No. 30/2018 Mukhtar No. 109578/Exj of Police Post Bathindi. The exhibit was found sealed with 07 seals intact, out of which only three seals tallied with the specimen seal impression forwarded by the Tehsildar Executive Magistrate 1 st class Jammu, vide Letter No. NTRB/95 dated 02.05.2016 and four seals tallied with the specimen seal impression, forwarded by ASP (IPS) SDPO City East Jammu. On opening, it was found to contain six sealed packets sealed with four seals intact in each, which were given the Exhibit No. P- 656/2016 to P-661/2016 by him respectively and each sample weighed 30 grams. The above seals were opened and the contents of the exhibits were duly examined by him remained under his immediate custody until the examination was completed. The exhibits were subjected to various chemical test, microscopical and chromatographic and the result arrived at is as under:
"1.Charas was detected in the Exhibit No. P-656/2016 to P-661/2016.
The report No. 429/C&T/FSL dated 20.05.2016 bears his seal and signature and is exhibited as Ext.P-10."
On cross examination, the witness stated that it will take half an hour to reach in their office from Police Post Bathindi. It is true that letter was sent by SDPO for examination of the exhibit on 2 nd of May 2016. The same has been received in their office on 03.05.2016. The exhibit marked as „A‟ was bearing the impression of the seal of the Executive Magistrate and SDPO except that there was no impression of the seal. The exhibit marked „A‟ on opening was found to contain six sealed packets sealed with four sealed intact forwarded by the Police. Six sealed packets were bearing only the impression of the seal of the SDPO except that there was no impression of the seal on exhibit. The exhibit does not bear the signatures of accused or any independent witness. The exhibit does not bear the stamp or signatures of the 15 CRA No. 30/2018 SHO on the packet. Exhibit P-656/2016 was found to contain 2 flat pieces of some greenish black coloured material packed in piece of polythene and the rest of the exhibit was found to contain one piece each packed in the polythene. He cannot say what was the colour of the polythene in which material was packed. The exhibit examined was not wrapped in a maize cob leaf. He has not mentioned the percentage of THC because there was no need of it as the definition of charas is the separated resin obtained from cannabis plant in whatever from whether crude or purified and its concentrated preparation known is Hashish or Hasish Oil. THC is main isomer present in charas. The material examined by him was charas in crude form. After chemical examination the remnants were returned back to the Investigating Agency. He has taken 20 grams material for examination in each exhibit and the rest of the approximate 10 grams was returned back to the Investigating Agency. The remnants sent back to the Investigating Agency were in sealed condition bearing his seal impression.
18. PW-11 Mukhtiar Ali (IO-cum-Sub Inspector) stated that in the year 2016, he was posted as I/c Police Post Bathindi. On 27.04.2016, ASI- Akbar Hussain had laid a naka at Sunjwan Morh. ASI-Akbar Hussain sent one docket to the Police Post Bathindi. An entry was made in the Roznamcha and docket was sent to the Police Station, Bahu Fort for registration of FIR. He received the copy of the FIR. The investigation was entrusted to him. During investigation, he went on spot and prepared the site plan marked as Ext.P-11. He seized the contraband and prepared the seizure memo marked as Ext.P11/A. He also prepared seizure memo of tractors marked as Ext.P2 and he obtained report from FSL. He also prepared the superdnama Ext.P2/1. He 16 CRA No. 30/2018 recorded the statements of the witnesses and the statement of ASI Akbar Hussain under Section 164 Cr.P.C. 12 kg 480 grams charas was recovered from the accused persons and 30-30 grams samples of charas from each packet was extricated and the same were prepared for examination by FSL and sent to the FSL. The rest of the contraband was deposited in the Malkhana. He proved the offence under Section 8/20 of NDPS Act against the accused. The accused are owner and driver of the truck in question. In cross examination, he stated that the police team proceeded for laying naka at 4:00 p.m. and entry was made in the Roznamcha but he has not annexed the copy of the Roznamcha along with the charge sheet. This is correct that FIR was registered at 9:34 p.m. and he had received the copy of FIR after 10:00 p.m. in the night. Ghulam Hussain had brought the copy of the FIR to him. He had proceeded for spot on 10:30 p.m. in the night on his motor cycle. When he reached on spot, ASI had not prepared any seizure memo but docket was given to him at that time when he reached on spot. There was darkness. They had brought the accused in vehicle to the Police Station. One person was brought for weighing the seized articles and that person was brought by SPO whose name he did not remember. The people and the vehicles were moving on the road and the shops were open. He had called the persons who were moving on the road for participation in the proceedings but they did not agree. This is not mentioned in the case diary. He further stated that people who were walking on foot were not called for associating in the proceedings. He cannot say whether the packets of the charas were inside the vehicle or outside. He did not remember the name of the photographer who had taken the photographs when he reached on spot. The accused were in the vehicle. 17 CRA No. 30/2018 Three photographs of the contraband were taken outside the vehicle. Photograph of truck was taken during day time. He did not remember about the weight of each packet but there were number of round balls in each packet. He has not mentioned in the challan that the charas was in the form of round balls. He had taken the samples of 30 grams from each ball. He had not taken the signatures of the accused and the Police Officials on the packets. He had fixed four seals on each packet. He had not filled any CFSL form. He had given the seal on Superdnama to Shahjahan and had not given to any civilian person though the photographer and the shop keeper were present on spot. There were three shops and they were open but he did not call any of the shop keepers on spot. Except him, ASI and PSO, no police personnel were present on spot. It took 20/25 minutes for completion of proceedings. All the papers in the file were prepared by Head Constable-Shahjahan. Shahjahan had also recorded the statements of witnesses. He came back at Police Post at 11:45 p.m. in the night. The accused were brought in the Gypsy and the truck remained there on spot. The truck was brought by Constable-Irshad Ahmed. He had deposited the seized contraband in the Malkhana of Police Post but he has not annexed any receipt with the file. He has not even annexed the photo copy of the Register of Malkhana. The remand of the accused was taken on 28.04.2016 but neither the seized material was placed before the Tehsildar nor the inventory was placed before him. He has not annexed the copy of Roznamcha regarding the depositing and receiving contraband from the Malkhana. The samples were taken to FSL by some official of the Police Post. He has not annexed the samples with the challan those were received back. He has not got the seal impression on the seized material from SHO. When SDPO 18 CRA No. 30/2018 had written a letter to FSL, he had fixed his seal. This witness was re- examined by the prosecution in terms of Section 540 Cr.P.C. and he stated that on 27.04.2016, he was posted at Police Post Bathindi. FIR No. 73 of 2016 was investigated by him. Charas weighing 12 kg was seized. He has seen the seized contraband in the Court and this is the same that was recovered on spot. Seized charas was sealed on spot and was got re-sealed and thereafter was kept in Malkhana and in cross examination, he stated that this is correct that seized material shown to him in the Court today was not sealed. Material shown to him neither bears his seal as well as his signatures nor the seal and signatures of SHO. It does not have even the signatures of Shahjahan. He had earlier made a statement that on each packet, he had fixed four seals each but he has not seen those packets but one packet is sealed. He had sent six packets to the FSL and on those packets four seals each were fixed. This is correct that the seized material shown to him is in the shape of strips.
19. PW-12 Kuldeep Khajuria stated that he was posted as SHO at P/S Trikuta Nagar in the month of April 2016. FIR bearing No: 73/2016 was registered on 26-04-2016 at 9-9:30 P.M and the charas weighing 12Kg 480 g was recovered from Truck No: JK02AL/5781. Copy of FIR (Ext_P12) bears his signature. Thereafter investigation was handed over to Mukhtar Ali Incharge Police Post Bathindi. He being satisfied with the investigation, presented the challan on 11-06-2016. In cross-examination sated that FIR was registered at 9:34 P.M. Copy of FIR was sent to Police Post through Constable Yasser Rashid but he could not tell the time when the copy was sent. Copy of rozanamcha was not annexed with the challan that could demonstrate that fact. He had not gone on spot in connection with the occurrence. Incharge 19 CRA No. 30/2018 Police Post had kept the seized articles in the Malkhana of the Police Post. He did not remember as to whether the Incharge had produced the seizure before him in Police Station and got his signatures and seal on it. It is not mentioned in the CD file.
20. PW Saiful Maluk stated that in the month of February 2016, he was posted as Naib-Tehsildar Rakh Bahu Jammu. On 02-05-2016, one sealed packet was re-sealed by him and was handed over to police officials of Bahu Fort police station along with an authority letter for chemical analysis. He did not remember the name of the police official, who brought packet to him. He had prepared the authority letter dated 02-05-2016. Photocopy of authority letter annexed with the file was signed by him and he identified the signatures on the authority letter. He could not produce the original authority letter as he was transferred from the said office. In cross examination, he stated that he does not remember the name of a police official, who brought the sealed packet before him for the purpose of resealing. He did not remember about the number of seal impressions put on the packet. In the authority letter he has not mentioned the number of seals put upon the packet. The original authority letter is not on the file. He had resealed one packet. The police had not recorded his statement.
Discussion:
21. In Hanif Khan v. Central Bureau of Narcotics, reported in (2020) 16 SCC 709, the Apex Court has held as under:
"9. Because there is a reverse burden of proof, the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, 20 CRA No. 30/2018 to rebut the presumption of his guilt, the benefit will naturally have to go to him."
22. Further Apex Court in Gangadhar v. State of M. P, reported in (2020) 9 SCC 202, has held as under:
"10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution."
23. Now coming to the facts of the present case, PW Akbar Hussain, PW Shahjahan, Pw Mukhtar Ali are the most important witnesses in view of the fact that the independent witnesses, namely, PW Mohammed Alam and PW Javaid have turned hostile and have not supported the prosecution case. It is the prosecution case that FIR bearing No. 73/2016 was registered at 21:34 on 27.04.2016 pursuant to the docket (Ext-P1) prepared by PW Akbar Hussain, that was taken by Constable Yasser Rashid to the police station Bahu Fort for registration of FIR. PW Akbar Hussain has stated that at around 8 PM, one truck bearing number JK 02AL-5781 was stopped near Wave Mall and during checking one white plastic bag having 6 packets was found beneath the seat of the driver. One of the packets was opened and charas was found in it. Weight of the seized material was around 12 ½ Kg. The said witness prepared the docket and sent it through Constable Yasser Rashid. This witness has proved the docket Ext-P1 and also that the appellants were present 21 CRA No. 30/2018 in the truck. A perusal of the docket Ext-P1 reveals that it is not mentioned in the same that the truck was loaded with scrap of tractors and also about the weight of the contraband. PW Akbar Hussain stated that the contraband was recovered by PW Abdul Qayoom. PW No. 6 Constable Abdul Qayum stated that the contraband was recovered by PW No. 2, Shahjahan and was handed over to ASI Akbar Hussain, whereas PW Irshad Ahmed and PW Shahjahan stated that ASI Akbar Hussain recovered the bag from the truck. Thus, who recovered the contraband from the truck remains an uncut Gordian knot.
24. PWs HC Shahjahan and Mohammed Alam have been cited as witnesses to the seizure memo of the contraband i.e. Charas. PW Mohammed Alam, who was an independent witness, did not support the prosecution case and was declared hostile but despite cross examination by the APP, he could not elicit any incriminating material against the appellants. It was only PW Shahjahan, who supported the prosecution case. Now, it is to be seen as to whether he has proved the seizure memo. The perusal of the statement of PW Shahjahan reveals that at around 8 PM one truck bearing registration number JK 02AL-5781, that was going from Narwal to Kunjwani was stopped and checked. One plastic bag was found beneath the seat of the driver, that was containing 6 packets wrapped in polythene and the charas weighing 12 KG and 480 gms. was found in it. The charas was got weighed by Incharge police Post i.e. IO. 30-30 gms of charas was extracted from each of the packets and samples were prepared and marked as A and A-1. Ring was kept on his supurdnama. He further stated that it was ASI Akbar Hussain who had gone inside the truck and recovered the bag from the truck and told that it was having charas. He further stated that In-charge police Post had come on spot 22 CRA No. 30/2018 after 10 to 15 minutes. He admitted that he along with ASI came back at police Post at around 9:30 PM. He further stated that Ext P-2 (Seizure memo of scrap of Scrap of Tractors) and Expt P-2/1(Supurdnama of Ring) were prepared by the sub- Inspector himself. He further stated that the ring was kept in police Post and he can produce the same in the court, if asked to do so. He also identified the 6 packets those were recovered from the appellants in the court. If the statement of this witness is read in light of the statement made by IO then it is found that all the papers were in the handwriting of the PW Shahjahan and he has gone to the extent of saying that the statement of all the witnesses were recorded by PW Shahjahan. Similarly, PW Mohd. Sahrif has stated that his statement was got recorded by IO through PW HC Shahjahan. Thus, it is established that even the seizure memo has been prepared by PW Shahjahan and he figures as marginal witness to the seizure memo of charas as well. In order to convict a person on the basis of evidence of the Panch witness, who happens to be a police official as well, then the evidence of the said witness has to be of sterling quality. In the instant case, the independent witness has turned hostile and no doubt merely independent witness turning hostile would not mean that the whole of the prosecution story is false but the fact remains that the witness PW Shahjahan is a witness to the seizure memo and also a person who has written all the papers on the file and also the statement of the prosecution witnesses, as stated by investigating officer. His statement that Ext P-2 (Seizure memo of scrap of Scrap of Tractors) and Ext P-2/1(Supurdnama of Ring) were prepared by Sub-Inspector himself, is found to be false as per the statement of Sub-Inspector/IO. More so, seal was kept on the supurdanama of this witness and he instead of keeping it with himself, 23 CRA No. 30/2018 kept it in Police Post. Thus, the statement of this witness cannot be relied upon particularly when the independent witness has not supported the prosecution case. In Gorakh Nath Prasad V. State of Bihar reported in (2018) 2 SCC 305 Apex Court, where the independent witnesses with regard to the seizure memo had turned hostile, has held as under:
"The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being ganja."
25. Further it was obligatory on the part of the prosecution to prove that after the samples were extracted on 27.04.2016, the same were kept in safe custody. It is the prosecution case that samples were sent for resealing on 02.05.2016. The samples were further forwarded vide letter dated 02.05.2016 of DySP City East Jammu and were received by PW 10 Pawan Abrol on 03.05.2016 as stated by him. There is nothing on record that samples were kept in safe custody from 27.04.2016 till 02.05.2016 when the same were sent for resealing. PW 11 Mukhtar Ali (IO) has stated that samples were sent to FSL and remaining contraband was kept in Malkhana. Thus, it is also established that the samples were never kept in Malkhana and there is nothing on record to demonstrate as to where the samples were kept after they were prepared and sealed. Investigating officer was required to deposit the samples as well as the remaining contraband in the Malkhana and further in order to bring home the guilt of the appellants, the investigating officer was required to place on record the extract of Malkhana register to demonstrate that the samples were kept in Malkhana and further that they were taken out from the 24 CRA No. 30/2018 Malkhana for the purpose of resealing, if the resealing was not done on the same day, as in the instant case, the resealing was done on 02.05.2016 and deposited back in the Malkhana after receiving and further that the samples were taken from Malkhana for sending the same to FSL. Though the prosecution has produced PW 8 Mohd. Sharief to demonstrate that the seized contraband was deposited in the Malkhana but the said witness has destroyed whole of the prosecution case by stating that 12 KG 480 gms charas was produced before him and out of which 30-30 gms of 6 samples were extracted in Police Post and rest of the 12 KG and 300 gms of charas was deposited in Malkhana on 08.06.2016. This witness admitted that no entry was made in the Malkhana register and further that his statement was recorded by constable Shahjahan. Not only this, there is no evidence on record as to who deposited the samples with FSL on 03.05.2016, though PW Pawan Abrol stated that the samples were received through Sub- Inspector Mukhtar but IO Mukhtar Ali stated that some official of Polcie Post had taken the samples to FSL. In Ashok v. State of M.P., (2011) 5 SCC 123, the Apex Court while allowing the appeal has observed as under:
"10. The seizure of the alleged narcotic substance is shown to have been made on 8-3-2005, at 11.45 in the evening. The samples taken from the seized substance were sent to the FSL on 10-3-2005, along with the draft, Ext. P-31. The samples sent for forensic examination were, however, not deposited at the FSL on that date but those came back to the police station on 12-3-2005 due to some mistake in the draft or with some query in respect of the draft. The samples were sent back to the FSL on 14-3-2005, after necessary corrections in the draft and/or giving reply to the query and on that date the samples were accepted at the FSL. From the time of the seizure in the late evening of 8-3-2005, till their deposit in the FSL on 14-3- 25 CRA No. 30/2018 2005, it is not clear where the samples were laid or were handled by how many people and in what ways."
26. Besides, there is delay in sending the samples to FSL and there is no explanation with regard to the delay by the prosecution. Delay per se in sending the samples to FSL may not be relevant when there is evidence that the samples were kept in safe custody and the samples were received by the FSL in sealed condition. So far as seal is concerned, the same was kept on supurdnama of PW Shahjahan, who stated in his deposition that he had kept the seal in the Police Post. Seal used for the purpose of selling contraband was required to be kept in safe custody either in the Malkhana or with some other person, so as to rule out the possibility of the tampering of the seals. There is nothing wrong in keeping the seal with police personnel but he is supposed to keep the seal in safe custody where none else particularly I.O can have access to it but in the instant case seal was kept in police Post and there is nothing on record to demonstrate that the seal was under the lock and key of PW Shahjahan only, so the possibility of tempering the seals is not ruled out in view of the fact that there is no record with regard to the deposit of samples as well as contraband in the Malkhana. Thus, this Court is of the considered opinion that the prosecution has miserably failed to prove the safe custody of the samples, remaining contraband and the seal in the safe custody so as to rule out the possibility of tempering with the samples.
27. Another important aspect of the case is that PWs ASI Akbar Hussain and PW Shahjahan stated that IO came on spot after 25-30 minutes. It is prosecution story that docket (Ext-P 1) was carried by Constable Yasir Rashid for registration of FIR. Even the prosecution laid a motion before the 26 CRA No. 30/2018 trial court under section 540 Cr.P.C. for examination of Yasir Rashid but despite the fact that the trial court allowed the said application, the respondent never produced the said witness. Normally the non-examination of the said witness may not have been fatal to the prosecution case but in the instant case the non-examination of the said witness is fatal as PW 10 Mukhtar Ali has stated that he proceeded for spot on 10:30 PM and docket was given to him at that time when he reached on spot. If PWs Akbar Hussain and Shahjahan are to be believed, then as per their version IO had come on spot 25-30 minutes after the docket was sent. But the investigating officer Mukhtar Ali has categorically stated that he proceeded on spot at 10:30 PM. Even the lodging of FIR gets shrouded with suspicion as the same was registered at 9:34 PM whereas Pw Akbar Hussain stated that he came back at police Post at 8:45 PM and PW Shahjahan stated that he along with others and ASI came back at police Post at 9:30 PM.
28. I have gone through the judgment passed by the trial court and it seems that the above issues have escaped the consideration of the learned trial court. The recovery and seizure of the contraband is doubtful and the prosecution has failed to prove the safe custody of samples from the date of seizure till sending the same to FSL. So in the totality of the facts and circumstances of the case, the judgment of conviction and order of sentence passed by the learned trial court is not sustainable.
Result:
29. In view of what has been said and discussed above, the appeal is allowed. The judgment dated 11.07.2018 and order dated 12.07.2018 passed by the learned 1st Additional Sessions Judge, Jammu in charge sheet titled " 27 CRA No. 30/2018
State Versus Kali Das & Anr" arising out of FIR No: 73/2016 dated 27.04.2016 under section 8/20(b)(ii)(c) NDPS Act is set aside and the appellants are acquitted of the charges. The charge sheet stands dismissed.
The appellants are ordered to be released forthwith, if not required in any other case.
30. Record of the trial court be sent back.
(RAJNESH OSWAL) JUDGE JAMMU:
26.11.2021 Paramjeet Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No