Jammu & Kashmir High Court
Jamal Din vs State Of J&K; on 14 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Appeal No. 51/2011, MP Nos. 01/2017 and 69/2011
Date of decision :14.09.2017
Jamal Din vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Appellant(s) : Mr. S.M. Wajahat, Advocate.
For the Respondents(s) : Mr. Ranjit Singh Jamwal, Dy. AG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. In this appeal, the appellant has assailed judgment dated 29th November, 2011 passed by the Court of learned Special Judge, Ramban, by which the appellant has been convicted/sentenced to ten years imprisonment with fine of Rs. 1.00 lac (Rupees One Lac) for the alleged commission of offence under Section 8/20 NDPS Act, 1985.
2. Appellant has stated in memo of appeal that a false and frivolous case FIR No. 12/2008 dated 24th January, 2008 came to be registered against the appellant at Police Station, Banihal. In the aforesaid FIR, the appellant has falsely been implicated, whereby he was shown to be in possession of two polythene bags, one containing 11 pieces of maize wraps containing Charas, and the other containing charas in the form of powder. He was on his way to sell the same at Banihal. It was also alleged by the Police concerned that on receipt of the Docket, a case was registered vide FIR No.12/2008 for the commission of offence punishable Cr. Appeal No.51 of 2011 Page 1 of 22 2 under Section 8/20 NDPS Act, 1985 and the appellant was charge- sheeted by the Court below vide order dated 11th April, 2008 for the commission of the aforesaid offence, which was denied by the appellant. The Investigating Officer is silent regarding the source of information. The appellant was wrongly charge-sheeted, which was denied by the appellant and after framing of the charge, the prosecution examined the following witnesses:-
1. Ghulam Mohd. Runyal ASI PW-1
2. Sher Singh Follower PW-2
3. Manshad Ahmed S.P.O PW-3
4. Bashir Ahmed PW-4
5. Mushtaq Ahmed PW-5
6. Mohd. Afzal PW-6
7. Jatinder Mishra PW-7
8. Pawan Abrol PW-8
9. Abid Hussain Rafiqi PW-9
3. The learned Trial Court did not appreciate the arguments of the counsel for the appellant and also not mentioned the case laws, which the appellant's counsel had produced in support of his arguments and returned the finding, which is not based on the facts of the case. The Court below has also not appreciated the evidence on record while passing the judgment, by virtue of which the appellant has been convicted for ten years with a fine of Rs. 1.00 lac, which is legally nonest and the procedure, which the police agency had adopted for involving the appellant is in violation of the Section 50, 67 and other mandatory provisions of Section 42 and 57 of the NDPS Act and Sections 55 to 57, 8, 15 and 51.
4. It is worthwhile to mention here that the statement recorded on behalf of the prosecution are contradictory to each other and the contradiction in detail is being explained as under:-
Cr. Appeal No.51 of 2011 Page 2 of 22 3That the prosecution witness No.1, who is himself complainant in the present challan and is also Searching Officer and is himself stating in the statement that he has searched the accused without taking the consent from him that whether the search be made by any Gazetted Officer and furthermore, he stated that the accused (appellant herein) has not been searched in presence of any witness. The Charas has been seized and recovered by the complainant without adhering to the procedure prescribed by law and has violated the mandatory provisions of Section 50 of the DNDPS Act. This is clear cut violation of Section 50 of the NDPS Act, as it has not been complied with, which is mandatory under NDPS Act.
5. It is submitted that the story made by the prosecution is false and frivolous, which is not being supported by the statement of the prosecution witnesses. On appreciation of evidence, it becomes abundantly clear that where the charas was allegedly recovered from the possession of the appellant was thickly populated and the minimum, which was expected from the prosecution was to ensure fairness by associating some locals, which was not done and rendered the whole recovery doubtful and the Trial Court fell in error in appreciating this aspect of the matter, as such, the impugned judgment is liable to be set aside.
6. It is also submitted that the impugned judgment is bad in the eye of law as the Trial Court has failed to appreciate the evidence on record and the police officials, who are making the statement is contradictory. That aspect of the matter has not been taken into consideration by the Court below. The prosecution has also failed to explain whether any serious attempt was made to associate the independent persons in the area as witnesses. The said illegality goes to the root of the case and on this ground only the appellant should have been acquitted by the Trial Court.
Cr. Appeal No.51 of 2011 Page 3 of 22 4There is no evidence to show that the seal, which was issued in sealing the sample, was not sent to FSL alongwith sample and the sample packet not containing the signatures of the appellant. The denial of the presence of the Executive Magistrate 1st Class, Banihal at the time of search of the appellant and the seizure of the Charas violates the mandatory provisions of Section 50 of NDPS Act, as at the time of search by the complainant, neither the appellant was told to have an option for his search in presence of any Gazetted Officer nor search was done by the ASI in presence of any witnesses, as admitted by him in his statement. The contradiction in the statement of the recorded prosecution witnesses and the non recording of statement of Incharge Malkhana, who was not arrayed as a witness by the police concerned and the delay of eight days made by the Constable for delivering the samples from the date, he had taken the possession of the samples and then delivering the same to the Incharge, FSL, which is eight days, that should have been explained by the same Constable, in whose possession, these samples were given with a direction to handover to the Incharge, FSL for chemical examination. But the said Constable has not been arrayed as a witness and the discrepancies in the weight of two samples made by PW-8, namely, Pawan Abrol have also not been fully explained by the prosecution. The omissions and commissions, which have been committed by the Investigating/Enquiry Officer by not arraying the Incharge Malkhana and the Constable, who had handed over the samples of Charas to the In charge, FSL, as prosecution witnesses, who would have explained regarding the possession of Charas, delay caused for handing over the samples to the Incharge, FSL and the Investigating Officer also failed to explain the discrepancies in the weight of samples, which creates serious doubts about the prosecution story and is crystal clear that the appellant, who is innocent has been wrongly and falsely implicated in such a heinous offence. That aspect of the matter Cr. Appeal No.51 of 2011 Page 4 of 22 5 has not been taken into consideration by the learned Special Judge, Ramban while convicting the appellant. So the appellant deserves to get the benefit of doubt and his conviction order dated 29th November, 2011 passed by the Court below deserves to be set aside.
7. I have heard counsel for appellant, who has reiterated the grounds taken in memo of appeal; whereas AAG has supported the case of prosecution and judgment rendered by Court below.
8. Facts giving rise to present case is that ASI Ghulam Mohd. Runyal from camp wagon sent a docket to police station Banihal that on 24.1.2008 he accompanied by followers PWS Sher Singh, Manshad Ahmed and other police official was on patrol and checking duties at Banihal market and Wagon, and a person was found keeping both his arms under the pheran and was proceeding from Wagon to Banihal on foot; he was made to stop who disclosed his identify as Jamal Din; he was searched and two polythene bags were recovered from him, one containing 11 pieces of the maize wraps containing charas and other containing charas in the form of powder; he was on his way to sell the same at Bainhal .
9. On receipt of docket FIR no. 12/2008 u/s 8/20 NDPS Act was registered and investigation started; during investigation total charas was found 500 gm in solid form and 750 gm in powder form; total 1 kg 250 gm contraband was found; samples of 20 gm each were taken and sealed; contraband was seized and sealed; samples were got resealed and sent to FSL; report was received and accused was arrested. Statements of witnesses u/s 164-A and 161 Cr.P.C. were recorded .
10. After completion of investigation, the charge sheet was presented before court below where accused was charge sheeted u/s 8/20 of NDPS Act and after full trial, court below passed judgment of conviction on 29.11.2011 and on the same date sentenced to rigorous imprisonment for 10 years and fine of Rs. 1 lakh.
Cr. Appeal No.51 of 2011 Page 5 of 22 611. Court below has held that prosecution has proved its case beyond reasonable doubts.
12. Since this Court has full power to re-appreciate the evidence on record in order to come to the conclusion as to whether Court below has rightly appreciated the evidence or not.
13. A brief resume of the statements of all these witnesses is reproduced hereunder:-
PW-1 ASI-Ghulam Mohd. Runyal:- PW-1 has stated that on 24th January, 2008, he as per the orders of the then SHO alongwith other police officials had been detailed for patrolling and traffic checking at Wagon Chamalbass. During patrol at Wagon at about 9.30 A.M, one person in suspected condition was found proceeding from Wagon to Banihal, who was wearing a pheran, who identified himself as Jamal Din S/O Ghulam Rasool Hajam R/o Trana Khari. On his search, two polythene bags were recovered from under his pheran, one packet contained 11 maize wraps contains charas and the other was found having powdered charas in his possession. He sent a docket through PW, namely, Sher Singh to Police Station for investigation of the case. He alongwith other officials kept the accused under observation till SHO alongwith Tehsildar, Banihal came on spot. The SHO asked the accused for his option of search, who wished to be searched in presence of the Magistrate. The accused was searched and charas was recovered, which was got weighed by shopkeeper, namely, Bashir Ahmed and it came out 500 grams and 750 grams in the two packets respectively. The charas after drafting seizure memo had also been sealed on spot. He identified the seized charas in the Court.
On his cross-examination, he stated that Wagon was at a distance of 7-8 Kilometer from Banihal. He had himself searched the accused and Cr. Appeal No.51 of 2011 Page 6 of 22 7 charas was recovered from him. The SHO had called people at the place of occurrence. His statement has been recorded by SHO.
PW-2 Follower Sher Singh stated that on 24th January, 2008, he was on patrol duty alongwith ASI, namely, Ghulam Mohd. Runyal at National High Way. When they reached at Wagon, accused came to the National High Way from jungle and was on his way to Banihal. They found him in suspected condition, who was detained and his option was sought for search, who wished to be searched in presence of Magistrate. The accused was found having charas. The ASI drafted a docket and sent him to Police Station, Banihal for registration of the case. SHO accompanied by the Tehsildar came on spot. On search, 11 pieces of maize wrapped charas was found and 750 grams powder was also recovered. The accused was arrested.
On his cross-examination, he stated that the accused had been stopped by SPO, namely, Muzamil at Wagon and he was searched by ASI, namely, Ghulam Mohd. Runyal. The accused was wearing a phiron when he came from the Police Station, the polythene bag was in the same condition. The charas sample had been sealed with a ring. Four samples had been made in his presence. Two samples had been made by SHO for FSL and two for keeping in Malkhana.
PW-3 SPO Manshad Ahmed stated that on 24th January, 2008, he alongwith PW-1 was on partrol duty at Wagon. The accused wearing phiron was found in suspected condition and on search, the charas was recoveredfrom him. A docket was sent to the Police Station through PW- 2 and the Tehsildar had come on sport. The accused wished to be searched in presence of Magistrate. The accused was searched and 500 grams of charas and 750 grams of powdered charas was recovered from two polythene bags. He identified the seized charas in the Court.
Cr. Appeal No.51 of 2011 Page 7 of 22 8On his cross-examination, he denied knowledge that whose seal had been appended on the samples. He also deinied as to how much charas had been taken out for sample. The accused had been searched by ASI-Runyal before arrival of the SHO. The packets, which were in the possession of the accused, were smelling charas at the time of search. ASI-Runyal had called the shopkeepers.
PW-4 Bashir Ahmed has stated that on 24th January, 2008, he was at his shop at Wagon. At 11.30 A.M, SHO, Police Station, Banihal alongwith Tehsildar came there and on their instructions, he had given a weighing scale. The accused was also with police, who was wearing pheran. The accused had not been searched in his presence. He had weighed something in packets on the instructions of police, one packet was found 500 grams and the other 750 grams. HE admitted that contents of search memo (Ext-P3) as correct. He also admitted the Superdnama (Ext-P3/1) regarding ring as seal as correct.
On his cross examination, he stated that the SHO had called him after one hour and denied having knowledge as to where from the police had recoverd the packets. The accused had not been searched in his presence. Police had not recorded his statement. The police opened the packets in his presence, which contained maize wraps. He stated that the seizure memo was not correct to this extent that the accused had been searched in his presence.
PW-5 Mushtaq Ahmed has stated that on 24th January, 2008, he was at his tailoring shop at Wagon. The accused was found with police. Tehsiladar and SHO, Banihal had also come on spot. The accused had kept something under his pheron, which he gave to Tehsildar, Banihal. The same was weighed by PW-Bashir and one packet came out 500 grams and the other as 750 grams. He admitted the contents and Cr. Appeal No.51 of 2011 Page 8 of 22 9 idenfitied his signatures on search and recovery memo (Ext-P3) as correct. The seal had been handed over by the Police vide superdnama (Ext-P3/1) to PW-6 in his presence. The sealed packet was opened and the witness identified it as the same having been seized in his presence by the police. The accused had been arrested by the police vide seizure memo (Ext-P4).
On his cross-examination, he stated that when SHO came on spot, the accused was present. The accused had not been searched in his presence. There were about 20 people on spot. The seizure memo to this extent is not correct that the accused had been searched in his presence. The police had not recorded his statement.
PW-6 Mohd. Afzal denied having any knowledge about the case. On being declared hostile and on cross-examination by the prosecution, he stated that on 24th January, 2008, police or Tehsildar had not come at Wagon. He had gone at Banihal on that date. He had returned from Banihal at about 12 o'clock or 1 p.m. The seized material had been weighed at the shop of Bahir Ahmed-shopkeeper. After sealing the same, the ring had given to him on superdnama vide Superdame (Ext-P3/1). HE produced the same in the Court. He denied having knowledge about the seizure and the recovery memo (Ext-P3). Tehsildar, Banihal had also come on spot and the accused had been arrested by the police. He stated that the seizure shown to him in the Court was not the same, as had been got weighed by the police at wagon.
On his cross-examination, he stated that he has no knowledge as to where from the police had brought the seizure. He had not seen the accused with the police. He had been given ring by ASI-Rinuyal.
PW-7 Jatinder Mishra stated that on 24th January, 2008, on the request of SHO, Banihal, he had gone to Wagon at National High way. He had Cr. Appeal No.51 of 2011 Page 9 of 22 10 found police team and the accused at that place. The accused was wearing pheran and was supporting beard. The SHO told him that two polythene bags had been recovered from the accused, which were weighed on spot. He admitted the contents of search memo (EXT-P3). Thereafter, the SHO had produced the sealed packets to him in his office for resealing. He had resealed the packets and issued authority letter in the name of Director FSL for its chemical analysis vide his letter No. 4546/JC dated 24th January, 2008. He admitted the contents of his authority letter (Ext- P7) as correct.
On his cross-examination, he stated that he had gone on spot at 10/11 AM. The accused had been searched in his presence, as he had already been searched by the police and the seizure memo to this extent was not correct that the police had recovered two packets from the possession of the accused in his presence. As the police had seized the charas before his arrival, he had attested seizure memo (Ext-P3) in his office. He had sealed four packets. His statement had not been recorded by the police. The seized material was not shown to him in the Court.
PW-8 Pawan Abrol stated that on 08th February, 2008, he had received two sealed packets on 02nd February, 2008 through Constable-Anchal Singh No. 258/Rbn in connection with case State Vs. Jamal Din vide letter No. 230-31/SDRB dated 01st February, 2008. The exhibits were found sealed with six seals intact and the exhibits marked as A-1, B-1 were further marked as P-31/08 and P-32/08 by him. Out of six seals, only three seals tallied with the specimen seal impression forwarded by the Tehsildar Executive Magistrate 1st Class, Banihal. Both the exhibits marked as P-31/08 and P-32/08 were subject to chemical tests, microscopical and chromatographic examinations and exhibits were idenfied as Charas. Exhibit No. P-31/08 weighed 23 grams and exhibit Cr. Appeal No.51 of 2011 Page 10 of 22 11 No. P-32/08 weighed 22 grams. He admitted the contents of his report (Ext-P5) as correct.
On his cross-examination, he stated that the samples, which he had received were weighed 22 grams and 23 grams each and not 20 grams each. He had not mentioned that percentage of charas in the Certificate. He had not seen the samples in the Court, which he had handed over to the police after chemical examination. As per the letter of Executive Magistrate 1st Class, Banihal, the letter was forwarded on 24th January, 2008, but the same was received by him on 02nd February, 2008, i.e., after the gap of eight days.
PW-9 Abid Hussain Rafiqi (Inspector) stated that on 24th January, 2008, ASI (PW-1) had sent a docket through PW-2, namely, Sher Singh for registration of a case. A case was registered vide FIR No. 12/2008 under Section 8/20 NDPS Act. He admitted FIR (Ext-P9) as correct. After registration of the case, he accompanied by Tehsildar, Banihal proceeded on spot. Police party headed by PW-1 was present alongwith accused. The accused was wearing pheran and two polythene bags were under his possession. The accused gave his option in writing to be searched before Tehsildar. He admitted the contents of the memo of option (Ext-P9/1). The accused had been searched in presence of civilians, shopkeepers and the Magistrate. The two packets recovered from the accused contained charas. He admitted the contents of Suprednama (Ext-P3/1), arrest memo (Ext-P4) and identification from (Ext-P3/III) as correct. From his investigation, the commission of offence under Section 8/20 NDPS Act was proved against the accused.
On his cross-examination, he stated that he had received the docket through PW-Sher Singh on 10.30 AM. He had taken 10-15 minutes to register the case. He went to the Tehsildar Office and reached to the Cr. Appeal No.51 of 2011 Page 11 of 22 12 place of occurrence alongwith Tehsildar at 11.30 AM. 7/8 persons in addition to police were present on spot. PW-1 told him on spot that the accused was having two packets in his possession. The accused was standing on the road under the supervision of the police. He had sought option of search from the accused inwriting. He had not kept any police official or civilian as a witness to the option memo. He remained on spot for one and a half hour. Seized material was weighed. Samples were taken out for the analysis. The four samples had been taken to the Magistrate for resealing. The Police official through whom the sample had been sent to FSL had not been cited as a witness. He had received the report from FSL, but not the samples. The Magistrate at the time of resealing had not opened the packets after breaking the seal. He had recorded the statement of Tehsildar, Banihal in terms of Section 161 Cr. P.C. The copy of the FIR had been sent to the higher officers. This is all the evidence of prosecution.
Accused has also produced two defence witnesses. A brief resume of the statements of these witnesses is as under:-
DW-1 Ghulam Mohd. stated that he alongwith Ali Mohd. and the accused had been taken from the house of the accused by SI, Runyal at Police Station. Nothing had been recovered from the accused. He denied having knowledge as to why the accused had been arrested by the police. On his cross-examination, he stated that the police had come at 9 AM. He denied having knowledge whether the charas had been recovered from the accused.
DW-2, namely, Ali Mohd. Hajam stated that the accused was his neighbour. S.I., namely, Runyal alongwith other police official came to the house of the accused and took him away. He was also taken to Banihal Police Station. On his cross-examination, he denied having any Cr. Appeal No.51 of 2011 Page 12 of 22 13 knowledge as to whether police had recovered the charas from the accused or not.
14. From the perusal of evidence, it is evident that prosecution has got examined all the evidence.
15. Court below firstly has held that option u/s 50 of NDPS Act was not required as contraband has been found from hidden on the person. This observation is correct as per law, because firstly it was chance recovery and secondly charas /contraband has been found in two polythene bags, which accused was carrying..
16. Next observation of Court below is that all PWs Ghulam Mohd Runyal, Sher Singh, Mansad Ahmed and Mustaq Ahemed have stated that charas has been found from accused person and seized in their presence. PWs Bashir Ahmed and PW Mustaq, two independent witnesses, have stated that contraband was weighed by PW Bashir Ahmed in their presence and two packets weighed 500 gm and 750 gm each. PW Jatinder Mishra, Executive Magistrate Banihal has stated that he had resealed the sealed packets; PW Pawan Abrol has stated that on examination, both sample were found as charas. PW Abid Rafiqi I/O stated that a police party headed by PW Ghulam Mohd. Runyal, had found charas from accused and on receiving docket, FIR was registered and he sent a copy of FIR to higher officer.
17. Bare perusal of these findings, it is evident that the judgment of Court below is perfunctory in nature, because no proper reasoning and cardinal principles of law governing in appreciating the evidence in NDPS Act has been discussed. There is no reference as to where sample were kept ,when these were sent for examination, where the seal ring was kept, whether samples were kept in Malkhana and what was evidence in this regard.
18. These are certain cardinal principle of laws, which are required to prove in cases of NDPS Act.Cr. Appeal No.51 of 2011 Page 13 of 22 14
19. In all NDPS Act cases, investigation gets completed approximately at spot except to reseal the sample and obtaining of FSL report. All offences under NDPS are heinous in nature and provides severe punishment and so some safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow.
20. In present case, briefly prosecution was to prove that ASI Ghulam Mohd.
Runyal alongwith other police official on 24.1.2008 were on patrol and checking duties at Wagon Banihal; they found accused keeping both his arms under the pheran and was proceeding from Wagon to Banihal on foot; he was made to stop and was searched and two polythene bags were recovered from him, one containing 11 pieces of the maize wraps containing charas and other containing charas in the form of powder; charas found 500 gm from bag in solid form and 750 gm in powder form; total 1 kg 250 gm contraband was found; samples of 20 gm each were taken and sealed; contraband was seized and sealed; samples were got resealed and sent to FSL .
21. As per prosecution, initial docket on which FIR was registered, it is evident that PW ASI Ghulam Mohd. Runyal, PWs Sher Singh 36/F, Manshad Ahmed SPO/1004, Fazal Hussain 709 and Haroon Ahmed 240, were in police party who were patrolling and checking at Wagon Banihal at the time occurrence. PWs Fazal Hussain and Haroon Ahmed have not been arrayed as witnesses.
PW ASI-Ghulam Mohd. Runyal has stated that on 24th January, 2008, he along with other police officials had been detailed for patrolling and traffic checking at Wagon Chamalbass. During patrol at Wagon at about 9.30 A.M, one person in suspected condition was found proceeding from Wagon to Banihal, who was wearing a pheran, who identified himself as Jamal Din S/O Ghulam Rasool Hajam R/o Trana Khari. On his search, two polythene bags were recovered from under his pheran, one Cr. Appeal No.51 of 2011 Page 14 of 22 15 packet contained 11 maize wraps containing charas and the other was found having powdered charas in his possession. He sent a docket through PW Sher Singh to Police Station for investigation of the case. He along with other officials kept the accused under observation till SHO alongwith Tehsildar, Banihal came on spot. The SHO asked the accused for his option of search, who wished to be searched in presence of the Magistrate. The accused was searched and charas was recovered, which was got weighed by shopkeeper, namely, Bashir Ahmed and it came out 500 grams and 750 grams in the two packets respectively. The charas after drafting seizure memo had also been sealed on spot. He identified the seized charas in the Court. On his cross-examination, he stated that Wagon was at a distance of 7-8 Kilometer from Banihal. He had himself searched the accused and charas was recovered from him. The SHO had called people at the place of occurrence. His statement has been recorded by SHO.
PW Sher Singh stated that on 24th January, 2008, he was on patrol duty alongwith ASI, namely, Ghulam Mohd. Runyal at National High Way. When they reached at Wagon, accused came to the National High Way from jungle and was on his way to Banihal. They found him in suspected condition, who was detained and his option was sought for search, who wished to be searched in presence of Magistrate. The accused was found having charas. The ASI drafted a docket and sent him to Police Station, Banihal for registration of the case. SHO accompanied by the Tehsildar came on spot. On search, 11 pieces of maize wrapped charas was found and 750 grams powder was also recovered.
PW- SPO, Manshad Ahmed stated that on 24th January, 2008, he along with PW-1 was on partrol duty at Wagon. The accused wearing phiron was found in suspected condition and on search, the charas was recovered from him. A docket was sent to the Police Station through PW-2 and the Cr. Appeal No.51 of 2011 Page 15 of 22 16 Tehsildar had come on sport. The accused wished to be searched in presence of Magistrate. The accused was searched and 500 grams of charas and 750 grams of powdered charas were recovered from two polythene bags. He identified the seized charas in the Court. On his cross examination, he denied knowledge that whose seal had been appended on the samples. He also denied as to how much charas had been taken out for sample. The accused had been searched by ASI-Runyal before arrival of the SHO. The packets, which were in the possession of the accused, were smelling charas at the time of search.
PW-SPO, Manshad Ahmed stated that on 24th January, 2008, he alongwith PW-1 was on partrol duty at Wagon. The accused wearing phiron was found in suspected condition and on search, the charas was recovered from him. A docket was sent to the Police Station through PW- 2 and the Tehsildar had come on sport. The accused wished to be searched in presence of Magistrate. The accused was searched and 500 grams of charas and 750 grams of powdered charas were recovered from two polythene bags. He identified the seized charas in the Court. On his cross-examination, he denied knowledge that whose seal had been appended on the samples. He also denied as to how much charas had been taken out for sample. The accused had been searched by ASI-Runyal before arrival of the SHO. The packets, which were in the possession of the accused, were smelling charas at the time of search. ASI-Runyal had called the shopkeepers.
22. If we appreciate the statements of these witnesses to the occurrence, it is evident there are material contradictions because ASI Ghulam Mohd.Runyal has stated that on the search of accused, two polythene bags were recovered from under his pheran, one packet contained 11 maize wraps contains charas and the other was found having powdered charas in his possession. Then a docket was sent then Cr. Appeal No.51 of 2011 Page 16 of 22 17 Tehsildar and SHO came on spot and option of search was given, and then contraband was found. Whereas PW Sher Singh has stated that they found accused in suspected condition, who was detained and his option was sought for search, who wished to be searched in presence of Magistrate. The accused was found having charas. The ASI drafted a docket and sent him to Police Station, Banihal for registration of the case. SHO accompanied by the Tehsildar came on spot. On search, 11 pieces of maize wrapped charas was found and 750 grams powder was also recovered. Whereas PW Manshad Ahmed has stated about arrival of Tehsildar, he has not mentioned about SHO. He has denied in cross examination about knowledge that whose seal had been appended on the samples. He also denied as to how much charas had been taken out for sample. Whereas PW-7 Jatinder Mishra Tehsildar has stated that on 24th January, 2008, on the request of SHO, Banihal, he had gone to Wagon at National High way. He had found police team and the accused at that place. The accused was wearing pheran and was supporting beard. The SHO told him that two polythene envelopes had been recovered from the accused, which were weighed on spot. However no document was prepared on spot. He does not remember what was weight. He admitted the contents of search memo (EXT-P3). Thereafter, the SHO had produced the sealed packets to him in his office for resealing. He had resealed the packets and issued authority letter in the name of Director FSL for its chemical analysis vide his letter No. 4546/JC dated 24 th January, 2008. He admitted the contents of his authority letter (Ext-P7) as correct. On his cross-examination, he stated that he had gone on spot at 10/11 AM. The accused had not been searched in his presence, as he had already been searched by the police; and the seizure memo to this extent was not correct that the police had recovered two packets from the possession of the accused in his presence. As the police had seized the Cr. Appeal No.51 of 2011 Page 17 of 22 18 charas before his arrival, he had attested seizure memo (Ext-P3) in his office. He had sealed four packets. His statement had not been recorded by the police.
23. In this way, Executive Magistrate belied the version of prosecution that accused was searched in his presence. He has stated that seizure was already affected before his arrival. He has also belied the prosecution version that seizure memo to the effect that police had recovered two packets from the possession of the accused in his presence. Perusal of option memo EXT-P9/1 would reveal that accused has stated that he wanted his search to be conducted in presence of Magistrate, but Magistrate has already stated that search was already conducted.
24. Further ring with which seal was affixed was kept on superdama of PW Mohd. Afzal, who has denied having any knowledge about the case. He has stated he does not know accused. On being declared hostile and on cross-examination by the prosecution, he stated that on 24th January, 2008, police or Tehsildar had not come at Wagon. He had gone at Banihal on that date. He had returned from Banihal at about 12 o'clock or 1 PM. The seized material had been weighed at the shop of Bashir Ahmed-shopkeeper. After sealing the same, the ring was given to him on superdnama vide Superdama (Ext-P3/1). He produced the same in the Court. He denied having knowledge about the seizure and the recovery memo (Ext-P3). Tehsildar, Banihal had also come on spot and the accused had been arrested by the police. He stated that the seizure shown to him in the Court was not the same, as had been got weighed by the police at Wagon. On his cross-examination, he stated that he has no knowledge as to where from the police had brought the seizure. He had not seen the accused with the police.
25. In this way the statement of this witness is shaky and cannot be relied upon.
Cr. Appeal No.51 of 2011 Page 18 of 22 1926. PW- Bashir Ahmed has stated that on 24th January, 2008, he was at his shop at Wagon. At 11.30 A.M, SHO, Police Station, Banihal alongwith Tehsildar came there and on their instructions, he had given a weighing scale. The accused was also with police, who was wearing pheran. The accused had not been searched in his presence. He had weighed something in packets on the instructions of police, one packet was found 500 grams and the other 750 grams. He admitted that contents of search memo (Ext-P3) as correct. He also admitted the Superdnama (Ext-P3/1) regarding ring as seal as correct. On his cross examination, he stated that the SHO had called him after one hour and denied having knowledge as to where from the police had recovered the packets. The accused had not been searched in his presence. PW-5, namely, Mushtaq Ahmed has stated that on 24th January, 2008, he was at his tailoring shop at Wagon. The accused was found with police. Tehsiladar and SHO, Banihal had also come on spot. The accused had kept something under his pheron, which he gave to Tehsildar, Banihal. The same was weighed by PW- Bashir and one packet came out 500 grams and the other as 750 grams. He admitted the contents and identified his signatures on search and recovery memo (Ext-P3) as correct. The seal had been handed over by the Police vide superdnama (Ext-P3/1) to PW-6 in his presence. The sealed packet was opened and the witness identified it as the same having been seized in his presence by the police. The accused had been arrested by the police vide seizure memo (Ext-P4). On his cross-examination, he stated that when SHO came on spot, the accused was present. The accused had not been searched in his presence. There were about 20 people on spot. The seizure memo to this extent is not correct that the accused had been searched in his presence.
27. Bare perusal of statements of these two witnesses, it evident that although they have admitted their signatures on seizure memo of charas EXTP/3, Cr. Appeal No.51 of 2011 Page 19 of 22 20 but have denied the contents and have stated that no search of accused was conducted in their presence. Further the resealing of sample was done on 24.1.2008 but same was sent to FSL on 1.2.2008 as is evident from FSL certificate EXT-P/5 which shows the said date; from 24.1.2008 upto 1.2.2008, where these samples remained there is no evidence. Prosecution is bound to prove the fact affirmatively that right form taking sample till it reached the FSL, there was no possibility of change or tempering. For this purpose the person in whose custody sample were kept after sealing and the person who carried the sample to FSL were required to be examined . There is no evidence with regard to keeping of seized article and sample in Malkhana. Neither in-charge Malkhana has been produced nor has any endorsement from register of Malkhana been produced.
28. In AIR 2005 SC 1578 in case titled State of Rajasthan v. Gurmail Singh, it is held that if Malkhana Register is not produced then prosecution case can viewed doubtful. Relevant Para reads as under;-
"We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles.
Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the Prosecution case have led the High Court to acquit the respondent.
We find no error in the judgment of the High Court.This appeal is, therefore, dismissed."Cr. Appeal No.51 of 2011 Page 20 of 22 21
29. Further there is no CFSL form prepared by I/O at the time of seizure and sealing. One of the safeguard which could ensure sanctity of seal was affixation of specimen of the seal on the CFSL form which had to be done simultaneously with sealing of parcels. It was for the prosecution to prove that not only the case property was duly sealed with the particular seals and was duly deposited in the Malkhana un-tampered but it was also incumbent on the prosecution to show that the samples which had been duly sealed, remained intact till they reached the office of CFSL. In proving these facts, it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled in at the time of taking the sample also remained intact and it reached the office of CFSL along with the samples. Same view has been taken in a large number of cases decided by this Court and other Courts.
30. In Radha Kishan v. State 87 (2000) DLT 106, the Court has explained the importance of ensuring that the CFSL form is duly sent with the sample for testing and held as under:-
"26. It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central forensic Science laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a Cr. Appeal No.51 of 2011 Page 21 of 22 22 document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/ police station."
31. In the present case, the prosecution has clearly failed to discharge the sacred duty and obligation to have kept the samples of the contraband articles and CFSL form intact till the sample reached the CFSL.
32. The statement of PW Pawan Abrol is not witness to fact; his statement is of advisory in nature.
33. In view of what has been discussed above, I am of the considered opinion that prosecution has not proved its case beyond reasonable doubts. Hence, benefit of doubt goes in favour of accused. He is acquitted of charges leveled against him. Appeal is allowed, judgment and sentences imposed by Court below are set aside. Challan is dismissed. Accused be set free, if not required in any other case. The seized properties be destroyed as procedure.
(Sanjay Kumar Gupta) Judge Jammu, 14.09.2017 Ram Krishan Cr. Appeal No.51 of 2011 Page 22 of 22