Jammu & Kashmir High Court
State Of J&K vs Mohd. Nazir on 21 October, 2019
Author: Rajesh Bindal
Bench: Chief Justice, Rajesh Bindal
Sr. No. 15
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SLA No. 97/2018
c/w
CONCR No. 86/2018
Order reserved on: 27.09.2019
Date of pronouncement: 21.10.2019
State of J&K ...Appellant(s)
Through:- Mr. Ravinder Gupta, AAG
v/s
Mohd. Nazir .... Respondent(s)
Through:- None
Coram: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
ORDER
RAJESH BINDAL, J
1. The judgment of the learned court below dated 09.09.2017, whereby the respondent was acquitted of the charges framed against him, has been impugned by the State while seeking leave to file acquittal appeal.
2. Brief facts of the case are that FIR No. 338/2011 was registered at Police Station, Kathua for alleged commission of offences punishable under Section 8/12/22 of the Narcotics Drugs and Psychotropic substances, Act, 1985. Two accused were arrayed, however challan was not presented against Rohit Singh S/o Daljeet Singh as he expired before presentation of challan. The allegations in the FIR were that on 18.10.2011 at about 3.30 PM, the respondent was coming on a scooter bearing No. JK08A-8440 2 SLA No. 97/2018 towards Kathua from canal side. Deceased-Rohit Singh was apprehended on spot, whereas respondent -Mohd Nazir escaped. 44 Bottles of R-cof and 2,920 capsules of Parvon Spas were recovered from him, whereas from the bag left by respondent 700 capsules of Parvon Spas were recovered. It was alleged that the scooter was being driven by deceased-Roht Singh.
3. It was admitted case even of the prosecution that the accused were not known to them prior of the occurrence. It was alleged that the respondent escaped from a distance of 5-6 feet from the Naka which had a team of 8 police personals headed by SHO. There was contradiction even regarding the arrest of the respondent as PW 4- Ct. Paljeet Singh stated that both the accused were arrested on the spot, whereas the stand taken by the others was that respondent had run away from the spot. Though it was claimed that deceased-Rohit Singh was apprehended on the spot, but no independent witness was joined. Further it was claimed that the respondent -Mohd. Nazir who had run away from the spot was not known to the police officials and his name was disclosed by the deceased Rohit Singh, but no test identification parade was conducted.
4. The search was not conducted in the presence of a Gazetted Officer. There is nothing pointed out to show that any offer was made to the respondents regarding that. The safety of samples is also seriously in doubt. The seizure is stated to have been made on 18.10.2011, however, it was claimed that it was re-sealed by PW-9 Executive Magistrate on 19.10.2011. Link of evidence regarding chain of the custody of the samples is totally missing.
3 SLA No. 97/2018
5. With these serious flaws, evidence led by the prosecution, in our opinion the learned court below has not committed any error in recording acquittal of the respondents.
6. No evidence produced before the court below has been referred by the learned counsel for the appellant which had either been misread or has not been considered by the learned court below.
7. For the reasons mentioned above, we do not find any merit in the leave to file acquittal appeal. The same is dismissed.
8. The accompanying application for condonation of delay is also dismissed.
(RAJESH BINDAL) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Jammu
.10.2019
Bir
Whether the order is speaking : Yes
Whether the order is reportable: Yes/No.
Judgment pronounced by me in terms of Section 138(4) of the Jammu and Kashmir High Court Rules, 1999.
(RAJESH BINDAL) JUDGE Jammu 21.10.2019 BIR BAHADUR SINGH 2019.10.25 12:43 I attest to the accuracy and integrity of this document