Jammu & Kashmir High Court
State Of J&K; vs Jagjeevan Singh And Another on 19 September, 2018
Bench: Dhiraj Singh Thakur, Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No.26/2009
Date of decision:19.09.2018
State of J&K Vs. Jagjeevan Singh and another
Coram:
Hon‟ble Mr. Justice Dhiraj Singh Thakur, Judge
Hon‟ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the appellant(s) : Mr. Suneel Malhotra, Govt. Advocate.
For the respondent(s) : Mr. Vishal Sharma, Advocate.
(i) Whether to be reported in
Press, Journal/Media : Yes/No
(ii) Whether to be reported in
Journal/Digest : Yes/No
Per: Sanjay Kumar Gupta-J
1. Feeling aggrieved of the judgment of acquittal recorded by the Court of learned 3rd Additional Sessions Judge, Jammu, in case FIR No.87/2005 registered under Sections 20/25 Narcotic Drugs and Psychotropic Substances Act and 3/4/25 Arms Act, whereby acquitting respondent No.1 Jagjeevan Singh, the State has preferred the instant criminal acquittal appeal. State has inadvertently preferred the instant appeal against respondent No.2 Sant Kartar Singh also, who has been proceeded under Section 512 Cr.P.C. by the trial Court vide order dated 02.08.2005.
2. Prosecution case, in brief, is that on 3-6-05 at about 2 P.M, Police Station Nawabad received a docket from Parvez Sajad ASI wherein it was stated that today on 3-6-05 he along with Constable Ravinder Singh, Constable Abdul Rashid, Constable Rajinder Singh, Constable Rakesh Kumar, Constable Sunil Dutt, Constable Sushant Sharma and Constable Ravinder Kumar had gone to Rama Lane Hari Nagar, Talab Tillo. He had seen while hiding at DBN Higher Secondary School Jammu that accused Jagjeevan Singh alias Kaindy and Satkartar Singh both sons of Kimat Lal R/ o Rama Lane Hari Nagar, Talab CRAA No.26/2009 Page 1 of 28 Tillo, Jammu were selling poppy straw and Charas etc from their house. On this, he along with other police personnel raided the house and found that Jagjeevan Singh was having poppy straw and charas in large quantity. One Chinese made pistol was also found from the accused Jagjeevan Singh whereas Sant Kartar Singh accused fled away; that the SHO and DySP are also present on spot. On receipt of this docket, FIR No.87/2005 was registered against accused persons for offence under sections 20/25 NDPS Act and 3/4/25 Arms Act in police station Nawabad, Jammu. During investigation I.O Rajesh Sharma, Sub-Inspector, I/C, Police Post Talab Tillo visited the spot at Hari Nagar Rama Lane Talab Tillo in the house of Jagjeevan Singh @ Kaindy S/o Kimat Lal whereas DySP, SHO and ASI Parvez had already apprehended Jagjeevan Singh. On presentation by ASI Parvez, the I.O prepared seizure memo and superdnama of ring, packets of poppy straw, charas, one Chinese made pistol along with eight rounds and two magazines of pistol. The I.O in presence of DySP and SHO searched the house of Jagjeevan Singh. During search one 'Taka' beneath the pillow of bedroom of Jagjeevan Singh and two rifles from the almirah were recovered and the same were also seized. The site map was prepared and the statements of witness u/s 161 Cr.P.C were recorded. Packets of poppy-straw and charas were re-sealed and sent to FSL for examination. Report from FSL was obtained. On conclusion of the investigation, the I.O found that Jagjeevan Singh and Sant Kartar Singh are dealing in illegal trafficking of poppy-straw and charas. Offence u/s 3/4/25 Arms Act and 20/15 NDPS Act were found proved against Jagjeevan Singh and offence u/s 20/15 NDPS Act was found proved against Sant Kartar Singh who had fled from the spot. The charge was framed against accused Jagjeevan Singh, whereas proceeding under section 512 Cr.P.C was initiated against accused no.2, which continued upto conclusion of trial.
Court after conducting trial acquitted the accused on the grounds that the mandatory provisions of NDPS Act have not been complied; there is material CRAA No.26/2009 Page 2 of 28 contradiction in the statements of witnesses; that recovery of contraband has not been proved.
3. We have considered the arguments of learned counsel for State as well as respondent and gone through the evidence on record, and judgment of Court below.
4. Before re-appreciating the whole evidence on record, the brief resume of the prosecution evidence is as under:-
Shanker Singh PW-1 deposed that On 3-6-05 prior to his reaching Rama Lane, SHO had raided the residential house of accused. In his presence poppy straw, charas and pistol were seized. These articles were recovered prior to his reaching on spot. Seizure memo was prepared in his presence. He identified his signatures on seizure memo and their content is correct and is exhibited as EXPW-SS. After seizing the material, SHO brought the same to Police Station.
In cross-examination stated that after preparing EXPW-SS, seizure memo, nothing took place on spot. Accused present in court was taken to police Station Nawabad. He does not know Urdu. Seizure memo EXPW-SS was not prepared in his presence. I.O asked him to put the signature and he accordingly put the signature. Seizure memo was not read over to him, so he cannot say as to what has written in seizure memo. He only saw seized articles on spot. However, he has no knowledge as to whether seizure memo of seized articles was prepared or not.
Parshotam Kumar PW-2 deposed that he does not know accused present in the court. In his presence no charas, poppy-straw and other weapons were recovered from accused Jagjeevan Singh. At this stage witness was declared hostile and in cross examination stated that it is incorrect that on 3.6.05. That the true facts are that he did not see police personnel cordoning the house of accused in his presence, no 6kg charas and 20kg of poppy-straw and other weapons were seized from the accused present in court in his presence. He is CRAA No.26/2009 Page 3 of 28 working at Bharat Tent House Nanak Nagar, as cleaner of utensils. Nothing incriminating was found during cross examination.
Rattan Lal PW-3 stated that he does not know accused present in court. In his presence, poppy and other weapons were not recovered from the possession of accused. He has no knowledge regarding the case. At this stage witness was declared hostile and on cross-examination stated that it is incorrect that on 3-6-05 he went at Rama Lane Talab Tillo, Jammu with regard to some work. There he saw that police had cordoned the house. Truth is that, he did not see police cordoning the house. It is also incorrect that in his presence police recovered 6kg charas, 25kg poppy straw and other weapons. Nothing incriminating was found in further cross examination. Ravinder Singh Constable PW-4 stated that on 3-6-05 Pervaiz Sajjad was Chowky Officer. He, Constables Abdul Rashid, Rakesh Kumar and Rajinder Singh were on patrolling duty along with Chowky Officer Pervaiz Sajjad. They raided the house of accused. SHO Gian Chand Sharma and SDPO Sanjay Kotwal came to accused's house at Rama Lane Hari Nagar and raid was conducted. House was searched, one accused fled away. Again stated two bags of poppy straw were recovered and one bag of charas was recovered. One weight machine was also recovered from the house and as also weight stones of 100 gm two in number and 500 gm and 1 kg were there. Chowky Officer Talab 'Tillo also came. Poppy straw and charas were weighed. The poppy straw was 16 kg, in one bag and 9 kg in another bag and in third bag 6 kg charas. Thereafter one 'Toka' was recovered from beneath the pillow. One Chinese revolver, two magazines and 8 live rounds were also recovered. Thereafter, Chowky Officer opened the almirah, two rifles were recovered, one double barrel and one single barrel. Seizure memo of these rifles were prepared. The seizure memo of poppy straw EXPW-E bears his signature and its contents are correct.
In cross-examination stated that House is one story. He had gone inside. He does not remember as to how many rooms were in that house. He went inside CRAA No.26/2009 Page 4 of 28 two rooms; from one room charas was found. The raid was conducted twice. One revolver was found from beneath the pillow of accused. In his presence one raiding party recovered poppy straw and charas. He does not know as to whether there was information for raiding in the case. He did not see accused selling charas. He did not see accused that fled away. He cannot recognize him. This statement is also correct that he did not see accused present in court selling the charas. The fact written in his statement recorded u/s 161 Cr.P.C that pistol was recovered from the personal search of accused is correct, however, statement which he has given that pistol was recovered from the beneath the pillow of accused is incorrect because he has stated that this fact mistakenly.
Abdul Rashid PW-5 stated that in June 2005 he was posted at Police Post Canal Road. On 3-6-05, he along with Incharge P/P Canal Road Mr. Pervaiz Sajjad ASI, Rakesh Kumar, Rajinder Singh and Ravinder Singh were on patrolling duty. When their party reached at Rama Lane Talab Tillo, Jammu near DBN School, I/C P/P received information that Jagjeevan Singh and Sant Kartar Singh are dealing with business of poppy straw and charas. On this, the patrolling party went to the residential house of accused and they cordoned the house. SDPO and SHO Nawabad also came on spot. I/C P /P Talab Tillo also came on spot. They entered into the residential house of accused present in court. Accused was searched and from his possession Rs. 7160/- and from beneath the pillow cover one pistol Chinese was recovered. From the search of room two bags of poppy straw were recovered, these bags were containing 16 kg and 9 kg poppy straw each and one bag of charas measuring 6 kg was also recovered. From poppy straw and charas samples of 25 gms each were taken and sealed.
In cross-examination stated that the room which was searched comes under the jurisdiction of Chowky Officer Talab Tillo. Chowky Officer Talab Tillo was present at the time of raid. He does not know his name. All the recoveries were affected in presence of Chowky Officer Talab Tillo. His statement was CRAA No.26/2009 Page 5 of 28 recorded by Chowky Officer Talab Tillo. He does not know accused Sant Kartar Singh; he has never seen him. The rumour spread that one person fled away from the spot, he was Sant Kartar Singh, however, he has no personal knowledge regarding this fact.. He did not know the accused previously. He did not know the name of accused; the name of accused bearing in his statement-recorded u/s 161 Cr.P.C, he came to know on spot. Manohar Singh SP City came after ward. The charas and poppy straw, which was seized on spot, were packed in white cloths by Chowky Officer Talab Tillo and SHO, however, these were not sealed in his presence Nishant Sharma PW-6 constable stated that on 3-6-05 his duty was with SHO Gummat Police Station, meantime information was received, SHO along with him went at Rama Lane Talab Tillo, there they cordoned the house of Jagj eevan Singh. Ravinder, Rashid along with other police personnel cordoned the house, thereafter they caught Jagjeevan Singh. SHO conducted his search; on his search one pistol chinese and Rs.7160/- were found. On search of accused two bags of poppy straw, one bag of charas and beneath the almirah two rifles were found. One bag of poppy straw was containing l0 kg and other bag was containing 9 kg. Charas was 6kg. On spot 100gm, 200gm and 500gm of samples were obtained. Weight machine was also there. Seized articles were weighed on spot.
On cross-examination by defence counsel stated that he reached along with SHO; no one was there. He was PSO and was attached with SHO. Firstly SHO reached and thereafter SDPO was also called through telephone. Pervaiz Ahmed came along with SHO. He does not know as to in which chowk Rama Lane is situated. No private person was on spot. No private person was taken during raid. Guards also went along with SHO. He has not seen Jagjeevan Singh selling poppy straw and charas. Charas was weighed by weight machine which was brought from outside. Pervaiz Ahmed Chowki Officer took all the articles. He does not know as to where goods were lying. He also does not know as to what was done with goods.
CRAA No.26/2009 Page 6 of 28Krishan Chand PW-7 deposed that about 10 months ago, Chowki Officer Canal called him and told that they have to go on a raid as there is information. Then we went behind DBN school at Talab Tillo. Then they cordoned the house of accused and the chowki officer telephoned and DySP and SHO came. First SHO came followed by DySP. The checking was done by their body guard and one bag was recovered from house of accused which contained 16 kg of bukkui and 9 kg was separate and contained charas which was 6 kg. The weighing was done on spot. The seizure memo was prepared. From that bag 25 gram was taken as sample. One plastic bag containing weighing stone were found and the weighing machine was found separately. One pistol type gun was found. One double barrel rifle was found. Magazines and rounds of the pistol were found. They were seized. In cross-examination deposed that he was giving side. The material was being taken out in his presence. Raid area comes within the chowki Talab Tillo. The bukky was not brought to the chowki. Information was received by the officer. His statement u/s 161 CrPC that he had seen accused selling charas is wrong. Pistol was recovered on search of accused. He does not remember who had taken the search of accused. He has no knowledge what happed to the material thereafter. It was not sealed in his presence but the sample was taken out in his presence. He has not seen the seized articles in court today. Sunil Dutt PW-8 constable stated that in June 2005 he was posted at police Station Nawabad. He knows accused present in court. On 3-6-05 he along with Chowki Officer Canal Road and Chowki Officer Talab Tillo, were on patrolling. SHO received information that some person is dealing with trafficking of poppy straw and charas at Talab Tillo Rama Lane, Jammu. Chowki Officer called DySP, & Chowki Officer Talab Tillo and stated that, they had cordoned the house. One person came behind the house and fled away meanwhile DySP also reached there. He asked for search. Three bags were found from accused; two bags were containing poppy straw and third bag was containing charas. Weight machine and weight stones were lying CRAA No.26/2009 Page 7 of 28 there; on search one pistol and two magazines were found. On search of almirah, two rifles and one 'Toka' were recovered. Charas and poppy straw were weighed in presence of DySP. Poppy straw was measuring 25kg and charas was measuring 6 kg. 25gms of samples were taken and were sealed. His signature is on seizure memo. On cross-examination stated that there is much population around the house. Due to fear those person did not come, so no witness has been cited from mohalla; only police personnel were there. When they raided, they did not see accused selling charas. Accused, who fled away he does not recognize him. He does not know the name of other accused. He has never seen accused prior to raid. When raid was conducted accused was inside the house. The fact that accused was selling charas, which has come in his statement u/ s 161 Cr. P. C is incorrect. It is also incorrect that accused was standing outside; he does not know as to whether any private witness was with them or not. Accused present in court and other accused is owner of house. When he asked from accused, he told that house belongs to him. I.O was on spot. Before conducting the raid Chowki Officer, Talab Tillo was on spot. The area where raid was conducted is situated at Talab Tillo. The articles, which were recovered during, raid, those were recovered in presence of SHO. In his statement-recorded u/s 161 Cr.P.C, it has come that Chowky Officer Talab Tillo called ASI. The fact recorded in his statement u/s 161 Cr.P.C that he along with SHO Nawabad is incorrect. True fact is that they cordoned the house and one person fled away. Chowky Officer Canal called DySP and Chowky Officer Talab Tillo on spot, they all reached separately; they were on backside. When they reached in front, all had come. From the personal search of accused Rs. 7160 - were found and nothing else was found. From the search charas, poppy straw and pistol were found; two magazines were found from the personal search of accused and not from the search of room. Search was conducted by Chowky Officer Canal Road. Accused was asked regarding option; he has not seen seized articles today in court, which were seized on spot. Rifles were seized on spot. Chowky Officer Talab Tillo CRAA No.26/2009 Page 8 of 28 took seized articles and seizure of articles were prepared and sealed by Chowky Officer Canal Road.
Rakesh Kumar PW-9 stated that in June, 2005 he was posted at Police Post Canal. He knows accused; they were going for patrolling. Chowki Officer was with them. SHO was also with them; information was received that in some house, there is poppy straw, thereafter, house was cordoned. He does not know as to at which place cardon was laid, thereafter, poppy straw was recovered from the house of accused. Poppy straw was 25kg and nothing was recovered. On cross-examination stated that he did not know accused previously. He does not know as to who was owner of house from where poppy straw was recovered.
Devinder Kumar PW-10 Constable stated that on 3-6-05 he was posted at Police Station Nawabad. He knows accused present in court. In his presence two bags of poppy straw and one bag of charas were seized from the house of accused situated at Talab Tillo; he, SHO and Chowky Officer went there, one pistol two 12 bore rifles and one 'Toka' was also seized. At that time accused and one boy were present in the house. It is occurrence of 8/9 months ago, thereafter accused was arrested; other boy was also with him. He was also caught; both were arrested. These articles were seized. On cross examination stated that two accused who were arrested were Jagir Singh and Kartar Singh, both were brought to Police Station. All recoveries was affected from the house of accused, nothing was found from the accused. He does not know as to who was owner of house.
Ashwani Kumar PW-11 stated that he does not know accused present in court. Police did not call him in Chowky. At this stage witness was declared hostile and on cross-examination stated that he is running a fruit Rehri at Pacca Gharat Talab Tillo. On 3-6-05 police call him and got conducted weight of charas. His statement was not recorded. The statement recorded on his name is incorrect.
CRAA No.26/2009 Page 9 of 28Gian Chand Sharma PW-12 stated that on 3-6-05 he was posted as SHO Police Station Nawabad. At about 12.30 PM he was on patrolling duty along with police personnel, meanwhile Chowki Officer P/P Canal Road ASI Pervaiz Ahmed telephonically informed him that he had been at DBN Hr. Sec. School Rama Lane Talab Tillo, Jammu. He had seen Jagjeevan Singh @ Kaidy and Parbhat Singh @ Sata both R/o Hari Nagar Rama Lane Talab Tillo, Jammu are dealing with business of selling of Poppystraw and charas in their residential house. He asked Chowky Officer to go on spot and proceed according to law. He also went on spot. He informed on telephone to SDPO City and other officers. He and SDPO reached on spot. SHO along with other police personnel had cordoned the area. Sant Kartar Singh fled away from the spot and search of accused Kaidy was conducted by Chowky Officer. From his dub one Chinese pistol along with two magazine and eight live cartridges and Rs.7160/-. Chowky Officer of Police post Talab Tillo was also informed on telephone, he also reached on spot. From the search of house of Jagjeevan Singh, two bags of poppy straw (one bag containing 16kg and other containing 9kg) and one bag of charas weighing 6kg were found. From the beneath almirah of accused two rifles were found. Chowky Officer seized the same. From charas and poppy straw 25gms each of sample were obtained for chemical examination. Seizure etc took place in his presence. Offence u/s 3/25 Arms Act, 15/20 NDPS Act was found proved. ASI prepared a docket and sent to P/S Nawabad for lodging FIR. FIR No.87/05 was .registered and investigation was given to Chowky Officer P/P Talab Tillo. He conducted the investigation and offences mentioned above were proved against the accused persons. He prepared the challan and produced the same before the court. On cross-examination stated that he went in a Gypsy on spot. Only driver was with him. SPO were already sent to spot on receiving information. They had stopped the accused and they were enquiring from accused. There were two rooms in the house of accused and one courtyard and from front and backside cordoned was laid and he did not see accused Sant Kartar Singh fleeing.
CRAA No.26/2009 Page 10 of 28Chowky Officer obtained consent from the accused as to whether SDPO will conduct search who was present on spot. Consent was obtained prior to him. In his presence it was also asked. Document was prepared in his presence, it was not signed by him. Two persons came on spot and no other person came on spot because people were afraid of accused; people had run away when Chowky Officer went inside. SHO can tell as to whether they chased the people who had run away. FIR was lodged by Incharge, who was Incharge he does not know. Manjit Singh Sub Inspector lodged the FIR. This fact was told by witness on seeing FIR, which was shown by defence counsel. The reference of charas had come in FIR, what was quantity of charas it has not been mentioned in FIR, however, it has been shown in seizure memo. For registration of FIR docket was sent before conducting the investigation. Some recovery was affected prior to sending of docket and some recovery was affected after sending the docket. Charas and poppy straw was seized from inside the house. Accused was kept in that courtyard; civil persons were inside the house and police personnel were also there. No person from house was there. House belongs to accused and it was of Kimat Lal who had died, now his sons are living. He did not see document of house. It has not come in the investigation that how many children were of Kimat Lal. No tenant was living in the house. It was looking apparently that no tenant was living in two rooms. Weapons were not sealed in his presence. His statement was recorded on spot. The statement of other would have also been recorded on spot. I.O/Chowky Officer P/P Talab Tillo recorded his statement. He does not know as to after how many days Chowky Officer met with an accident. Signature of I.O or subscriber exist at the bottom of statement recorded u/s 161 Cr.P.C. It is incorrect that he wrote the statement; statement has been written by I.O. It is incorrect that Shakti Singh wrote the statement who was also a member of team. Articles were kept in police station and these were kept by I.O. Munshi is Incharge of Malkhana; entry was made in the register of Malkhana. It does not bear his signatures.
CRAA No.26/2009 Page 11 of 28Pervaiz Sajjad PW-13 stated that 3.6.05 on his duty was as Chowky Officer Canal Road. He knows accused present in court. On 3-6-05-he along with other police personnel were patrolling in the area of Hari Nagar Rama Lane, Talab Tillo, Jammu. Where they received an information from reliable sources that Jagjeevan Singh and his brother Sant Kartar Singh are dealing with business of selling poppy straw and charas and when they saw while hiding, they found that information was correct, thereafter, they cordoned the house. DySP and SHO were called on telephone; they reached on spot; they all went inside the house. DySP obtained consent from Jagjeevan Singh accused inside the house. Accused stated that he will give his search in presence of DySP. They all personally searched the accused. One pistol, two rounds and one magazine were found. Again stated that he did not remember regarding rounds, thereafter, search of rooms was conducted and three bags were found. In two bags poppy straw was found and in one bag charas was found; inside the room weight machine and weight stones were found. They brought weight machine and weight stones from one rehriwala, they conducted weight. From one bag 16kg of poppy straw and in another bag 9kg of poppy straw was found, in third bag 6kg charas was found. From these charas and poppy straw 25 gms of each were taken as sample. These were sealed; seizure memo and search memo are in his hand written; he identifies his signature, sample of charas is marked as EXPWSS. Seizure memo of poppy straw and charas is marked as EXPW-PS1; seizure memo of weight machine and weight stones is marked as EXPW-PSII; seizure memo of personal search and seizure was also prepared by him, it is marked as EXPW- PSIII; seizure memo of weight machine and weight stones which they prepared for weighing are marked as EXPW-PSIV; consent memo is marked as EXPW-PSV. Superdnama of ring is marked as EXPW-VI; superdnama of weight machine and weight stones is marked as EXPW-VII. DySP attested all these documents, he wrote a docket for registration of FIR to SHO P/S Nawabad, that docket is in file; he identifies his signature on it and it is CRAA No.26/2009 Page 12 of 28 marked as EXPW-VIII. After lodging of FIR Chowky Officer Talab Tillo came; he handed over seized material and documents to Chowky Officer Talab Tillo because area was in his jurisdiction. Chowky Officer Talab Tillo also conducted a search of one room in his presence; two rifles and one 'Toka' were recovered. Chowky Officer Talab Tillo prepared a seizure memo of all the seizure memos,which he prepared. He put his signature on it; he identifies it, it has already been marked as EXPWSS; he has seen seized articles today in court; these are same which he seized and seized in his presence. On cross- examination stated that when he cordoned the house, he did not write a written report to this effect, however, he telephonically informed DySP and SHO. When DySP and SHO came on spot FIR was not lodged at that time; he received information at day time, seizure memos are in his hand written; on these memo FIR and offence has been written, he has no knowledge regarding this. Seizure memos and superdnama were shown to the witness, witness stated that FIR and offence has been written. He does not remember as to whether when I.O seized these documents, FIR and offence were written on it or not. Regarding FIR and offence a telephone was received from Munshi of Thana and thereafter same was endorsed on the document. Option notice was given regarding the proceeding, which he conducted. When he received information, accused and his brother and 2/3 other persons were in the courtyard of accused. He was seeing from school, which was situated toward in the backside of the house of accused. It took minutes from the time of cordoning the house and arrival of DySP; they went inside the house when DySP came, they told to the DySP that there is charas inside the house. The house of accused is at the end; towards right side there is house, when they conducted proceedings, people were watching, however, people did not come despite they were called, however, persons who were doing labour outside were brought. When they reached in the house, except accused other accused fled away. He asked from DySP regarding option and thereafter in presence of DySP it was asked from the accused. Accused stated that he will give his CRAA No.26/2009 Page 13 of 28 search from DySP. The presence of DySP has not been written in option memo; however, it has been attested by DySP. He did not ask from DySP that who will conduct the investigation of the case. However, when FIR was lodged and thereafter I.O Chowky Officer Police Post Talab Tillo came on spot after lodgment of FIR, during that period they and accused remained on spot. I.O came at about 2/2.30PM. When he conducted the search, he did not enquire from the accused as to whom house belonged, however, it would have been asked by I.O. I. 0 did not obtain any document regarding ownership of house in his presence. He also did not demand any document; neighbourer stated that accused is owner of house. He does not remember the name of witnesses of whom he obtained signature on seizure memo. The name of Chowky Officer Talab Tillo is Rajesh Sharma; he sealed poppy straw and charas; seal was taken from the kit of I.O. by SHO. On sealed packets, his signature was not obtained nor copy of seizure memo was given to accused. Again stated that as to whether signature of SHO and DySP were obtained or not he does not remember. The presence of DySP has not been endorsed on seizure memo, however, seizure memo were got attested by DySP on spot; he does not remember as to whom ring belonged with which seal was affixed, however, ring was given to constable on superdnama, he does not remember. Chowky Officer did not come on spot when docket was sent for lodging of FIR. The offence u/s 4/25 Arms Act is to be registered regarding possession of 'Toka'. Offence u/s 4/25 Arms Act which has been written on docket, it has been written regarding recovery of 'Toka', however, 'Toka' was recovered after Chowky Officer Tala Tillo arrived. This docket was written after arrival of Chowky Officer.
Sanjay Kotwal PW-14 SP City North stated that on 3-6-05 his duty was as SDPO Bakshi Nagar. He knows accused present in court. At about 11 AM SHO Canal Road made a telephonically call to him and informed that some person are dealing with trafficking of charas and other Narcotics drugs in a house near DBN School. On this information he along with PSOs reached on CRAA No.26/2009 Page 14 of 28 spot and meantime SHO Nawabad Gian Sharma also came. They cordoned the house of accused; they called accused outside from house. They asked from accused as to whether he wants to give his search in his presence or before some Magistrate. Accused stated that he wants to give search in his presence. He asked this fact from accused orally, thereafter he gave his search to a constable; thereafter he affected search of accused present in court. On search, one Chinese made pistol along with seven eight' rounds, two magazines and some money were found; thereafter house of accused was searched. Two bags of poppy straw were found, one bag of charas was found. Poppy straw was weighing 16kg in one bag and 9kg in other bags were found. Besides this, 6kg charas was found. 25 gms sample of poppy-straw were taken and similarly 25 gms sample of charas was taken. During further search, two rifles, one sharp edge weapon beneath the bed of accused was obtained from a room. One rifle was double barrel of 12 bore and 2nd rifle of single barrel and its barrel was cut and it was made short. This proceeding took place at one time in his presence. After completing the proceeding, SHO of P/P Talab Tillo was called. All documents of seizure, personal search and superdnama were got attested by him..
On cross examination by defence counsel stated that he was informed through telephone that in a house opposite D.B.N School there are drugs, at that time he was sitting in office at Bakshi Nagar. He at the same moment went on spot. FIR was not lodged at that time. He asked SHO to come on spot. After conducting of proceeding information was given to officer, perhaps he got written option notice from someone and that was given to accused. After completing of proceedings a docket was written. When they reached for search, Incharge P/P Talab Tillo also reached there. He does not remember as to whether SHO was told with regard to lodging of FIR or not. They took weight machine from Police Station. Again stated from where weight machine was brought he does not know. Weight machine was kundaywala. Samples were taken in his presence. These samples firstly were wrapped in CRAA No.26/2009 Page 15 of 28 cloths and thereafter it was sealed. All proceeding was performed by SHO Canal road. He did not put his signature on seizure memo and other seizure of sample of charas. He does not remember as to whether signature of accused was obtained in his presence or not. He has no knowledge as to whether house belonged to accused or not, however, accused was living there. Three to four brothers are also living with accused; at the time of affixing the seal, impression of ring was fixed. On whose superdnama ring was given, he does not know. I.O recorded his statement on same day i.e. on the day of lodging of FIR. He does not remember as to whether copy of seizure memo was given to accused or not. He does not remember as to when arrest memo was prepared. He attested the documents on spot.
Rajinder Singh PW-15 stated that in June, 2005 his duty was at Police Post Canal Road. It is occurrence of 2-6-05, when they were patrolling at that time Chowky Officer Pervaiz Sajjad was also with them. When they reached at Pacca Gharat DBN School Talab Tillo. He and Pervaiz Sajjad saw at the house of accused that he was selling poppy straw etc. As they became suspicious, they went inside the house. Pervaiz Sajjad also called SHO Nawabad Mr. Gian Chand Sharma on wireless and asked the SHO that they had doubt on one house that poppy straw is being sold there. SDPO was also called on spot. Police personnel also came along with SHO and DySP, thereafter, they searched the house from inside. They went inside and saw accused present in court was alone there. All his three officers took accused towards one side and started inquiry, officers directed him for search. In his presence nothing was found from the pocket of accused. From search one desi pistol (Kata), one 12 bore rifle; poppy straw in two bags, 16kg in one bag and 9kg in another bag. 6kg material round in shape, which is termed as opium was found. Weight machine and weight stones were brought and seized material were weighed. Seized poppy straw etc were seized on spot and accused was taken in custody.
CRAA No.26/2009 Page 16 of 28On cross-examination stated that he was posted in that police station since two years; it was occurrence of after-noon. Besides him, Pervaiz Sajjad Chowky Officer was also there. On that day examination in school was going, so he and Chowky Officer were preset there. The house of accused is adjoining to the school building. He did not see accused from the school building. He saw accused through the window of school building, thereafter other officers were called through wireless. SHO Gian Chand Sharma came on spot within five minutes, thereafter, they waited for DySP; they all went inside the house of accused. He saw only two rooms in the house of accused; one roof of the house was pacca. He does not remember as to who conducted weight of articles, perhaps weight would have been conducted by Tehsildar; weight was conducted with floor weight machine. On spot civilian from neighbour and one tent house person were present. Documentary proceedings were also completed by I.O Pervaiz Sajjad and articles were sealed in his presence. Packets were prepared by Tehsildar Sahib. Small packets ·were obtained from it; I.O recorded his statement. The fact, which has been written in his statement-recorded u/s 161 Cr. P.C that one pistol, seven rounds and two magazines were found from the personal search of accused is incorrect. These articles were found from the room. He has not seen seized articles today in court.
Bikram Parihar PW-16 stated that he knows accused present in court. He has conducted part investigation in the case i.e. from 8-6-05 to 28-6-05. Prior to him investigation was conducted by Rajesh Sharma SI. During investigation he got conducted medical examination of accused and obtained remand. During investigation he sent the re-sealed articles to FSL and obtained receipt (the receipt was annexed in the file). The remand order, which he obtained, has been annexed in the file. He got medical examination of accused. He has seen medical receipt and receipt of FSL. On cross- examination stated that the seized articles were in Malkhana in packets. He did not see that packets. He asked Hawaldar Shakti Singh to bring the articles CRAA No.26/2009 Page 17 of 28 and sent the same to FSL. He has not seen register of Malkhana, so he cannot say as to how many times same were lying there. He cannot say as to whether it was whole material or sample. He does not know as to what was in the packets. He has not annexed the receipt of Malkhana.
Dr.Mool Raj PW-17 Scientific officer FSL, Jammu stated that on 08-06-05 two sealed packets were received vide letter No.5014-15/SDCN dated 6-6-05 through Head constable Shakti Singh No. 649/J in connection with the case FIRNo.87/05 u/s 20/15 NDPS Act, 3/4/25 Arms Act, of Police Station Nawabad. Packet A and B respectively sealed with 12 and 5 intact seals out of which 4 and 3 seal impressions tallied with specimen seal impression contained, Light yellow colour Powder material which were marked as exhibits B-419/2005 and B- 420/2005. The contents of the packets were subjected to microscopically examination and the opinion arrived at is detailed in the report No.537 /FSL dated 30-6-05. It bears my signature, seal and is exhibited as Ex.P1.MR. On cross-examination by the learned defence counsel the witness stated that the weight of sample has not been mentioned in the report. The sealed packets were bearing Khadi Cloth whitish colour. I do not remember whether any signatures were there on the packets or not. I do not remember whether there was any stamp of SHO or not. My examination is up to the biological identification only. There is no role of chemical examination by me and the same is required to be examined by another expert.
Rajesh Sharma PW-18 stated that in year 2004 he was posted as Chowky Officer Police Post Talab Tillo, Jammu. He has conducted investigation of the case under FIR No.87/05 u/s 15/20 NDPS Act and 3/4/25 Arms Act. He reached at his Police Post at about 2/2.30 PM on 3-6-05. A docket was received through Constable Ravinder Singh on behalf of SHO Police Station Nawabad. In the docket it was written that ASI Pervaiz Chowky Officer P/P Canal was on patrolling and during patrolling he found that accused Jagjeevan Singh was dealing with illegal trafficking of poppy straw and charas at his CRAA No.26/2009 Page 18 of 28 house at DBN School Rama Lane Hari Nagar, Talab Tillo, Jammu. He has seen docket in the file on the basis of which FIR was lodged. He was appointed as I.O. He went on spot; there Chowky Officer Pervaiz Ahmed SHO Nawabad Gian Chand Sharma, SDPO Sanjay Kotwal and other police personnel were present. These were present inside the house of Jagjeevan Singh. Chowky Officer Pervaiz had seized two packets of poppy straw containing 9kg and 16kg each; charas weighing 6kg and one Chinese pistol along with 8 rounds. He prepared seizure memo of these articles EXPW-SS. He conducted search of house, on search of house, one double barrel 12 bore gun, one single barrel and one 'Toka' were found. Seizure memo was prepared it is marked as EXPW-RS. Seizure memo of 'Toka' was separately prepared it is marked as EXPW-RS1. He prepared side map, it bears his signature and it is marked as EXPW-RS2. Samples of seized articles were obtained; these samples were re-sealed by Executive Magistrate. The name of Magistrate is Som Nath as per C.D. file. He recorded statement of witnesses u/s 161 Cr.P.C. He arrested the accused person. He conducted investigation up to 6-6- 05 thereafter he went for course, thereafter investigation was conducted by other I.O. On cross-examination stated that Pervaiz Ahmed, Gian Chand Sharma, SDPO Sanjay Kotwal and other police personnel were present inside the boundary wall of the house of accused. 10/12 other police personnel were present. Place of occurrence is a mohalla, many houses are there. When he reached on spot appropriate proceedings had been conducted and articles were sealed. Again stated that articles were packed in bags, and tide with string. He took samples of charas and poppy straw of 25 gms each. He knows Urdu. In every case he used to prepare seizure memo. Seizure memo of charas, Poppy straw and pistol were prepared. He did not write FIR and offence on the seizure memo. He did not send rifle, which he seized, to the expert as to whether these were in working condition or not. He did not see during investigation as to on whose name licence of rifle was issued. He has not seen any house of senior police officer on the way through which he came. The CRAA No.26/2009 Page 19 of 28 samples of charas and poppy straw, which were taken in his presence, he did not prepare seizure memo regarding those samples, perhaps it bears the signature of SDPO. He has no knowledge as to whether signature of accused was obtained or not. Before his arrival, police personnel already reached on spot before half hours. Police told him that the seizure memo of seized articles, which he has prepared, those articles was seized from the house of accused. He recorded statements of Parshotam and Rattan Lal witnesses on spot. He sent sample of poppy straw and charas to FSL. He did not send the sample but he got these articles re-sealed. Seized articles before re-sealing, were kept in Malkhana as per register. The impression of ring, which is on the seizure memo, it was already made. That ring he gave to next I.O. He did not give this ring on superdnama.
Ram Lal PW-19 stated that in June, 2005 his duty was at Niabat Muthi. On 6-6-05 R.K. Sharma SI I/C P/P Talab Tillo brought these sealed packet for re- sealing with his seal. A letter dated 6-6-05 was also prepared for chemical examination. By virtue of letter, permission for breaking the seal was given. Letter bears his signature and it is marked as EXPW-RC. On cross- examination stated that when police come to him, he does not remember, however, police came during office time. Seal was already affixed on the packets. Police did not bring the seal/ring by virtue of which packets were sealed. He did not open the packets; he cannot tell what was in the packets. He did not conduct the weight of ring.
This is the evidence of prosecution and after recording the statement of accused/s 342 Cr.P.C and hearing the prosecution and accused, trial Court acquitted him on the grounds that provisions of section 42 of NDPS Act have not been complied with and recovery has not been proved as independent witnesses turned hostile.
5. We have re-appreciated all the evidence on record. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court CRAA No.26/2009 Page 20 of 28 in case titled „Muralidhar alias Gidda & anr. v State of Karnatka‟ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014] reported in AIR 2014 SC 2200, which read as under :-
"10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, CRAA No.26/2009 Page 21 of 28
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
13. In 'Ghurey Lal v State of U.P.‟ (2008) 10 SCC 450, the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above."
6. If oral statements and quantity of witnesses are to be considered, then one can say there is enough material to convict the accused. But there are certain cardinal procedural elements provided in NDPS Act, which has to be followed during investigation. These are the safeguards meant for innocent person, so that they may not be involved falsely by police in commission of crimes. 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 provide severe punishment and so some safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow. A balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizens from oppression and injustice on the other. The provisions contained in Chapter V of NDPS Act, intended for CRAA No.26/2009 Page 22 of 28 providing certain checks on exercise of powers of the authority concerned, are capable of being misused through arbitrary or indiscriminate exercise of power unless strict compliance is required.
7. Perusal of statements of independent witnesses to recovery/seizure memos of contraband; it is evident that two independent witnesses PW-2 Parshotam Kumar and PW-3 Rattan Lal have been declared hostile. Although they were cross -examined by prosecution but nothing incriminating has been found against accused persons. Thus, seizure memos have not been proved because both the independent witnesses PWs Parshotam Kumar and Rattan Lal have not supported the prosecution case. Another PW Ashwani Kumar independent witness has been turned hostile ; he has stated that he does not know accused present in court. Police did not call him in Chowky. At this stage witness was declared hostile and on cross-examination stated that he is running a fruit Rehri at Pacca Gharat Talab Tillo. On 3-6-05 police called him and got conducted weight of charas. His statement was not recorded. The statement recorded on his name is incorrect. Similarly PW Shanker has deposed that on 03.06.2005 his duty was at Talab Tillo Police Post. Prior to his reaching Rama Lane, SHO had raided the residential house of accused. In his presence poppy straw, charas and pistol were seized. These articles were recovered prior to his reaching on spot. Seizure memo was prepared in his presence. He identified his signatures on seizure memo and their content is correct and is exhibited as EXPW-SS. After seizing the material, SHO brought the same to Police Station. In cross-examination it has been stated that after preparing EXPW-SS, seizure memo, nothing took place on spot. Seizure memo EXPW-SS was not prepared in his presence. I.O asked him to put the signature and he accordingly put the signature. Seizure memo was not read over to him, so he cannot say as to what has been written in the seizure memo. He only saw seized articles on spot. However, he has no knowledge as to whether seizure CRAA No.26/2009 Page 23 of 28 memo of seized articles was prepared or not. He is police witness who too has stated against the prosecution.
8. Mandatory provisions of Section 42 of NDPS Act have not been followed.
Section 42 of Act deals with power of entry, search, seizure and arrest without warrant or authorization. This section can be divided into two parts. First is the power of entry, search, seizure and arrest without warrant or authorization as contemplated under sub-section (1) of section 42. Second is reporting of information reduced to writing to the higher officer inconsonance with sub- section (2) of the Section. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so after recording his reasons of belief. The proviso to Sub-section (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. An officer writing down the information under sub-section (1) and an officer recording his reason of belief under proviso shall send the copy of the same to their immediate superior officer
9. As righty held by Court below that PW Parviez Ahmed ASI who had prior information that illegal narcotic drugs are kept in the building of accused, but he did not reduce the said information into writing before the raid/search of the building; it was obligatory for the said police officer to do so and the non-observance of the mandatory provision of Section 42 of the Act vitiates the trial. Court below has relied on 2008 (2) CRAA No.26/2009 Page 24 of 28 SCC 370 in case titled Directorate of Revenue and anr. v. Mohammed Nisar Holia wherein it is held that if the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.
10. Further from the perusal of statement of PW Parvez ASI and as already stated that he already had information about the presence of contraband in house and accused were indulging in activity of selling of contraband, even then he did not call Magistrate or gazetted officer for effecting personal search of accused persons in terms of section 50 of Act. Provisions of section 50 of NDPS Act have not been complied during investigation. PW Sanjay Kotwal then Dy.S.P has tried to cover up this defect by saying that they asked from accused as to whether he wants to give his search in his presence or before some Magistrate. Accused stated that he wants to give search in his presence. He asked this fact from accused orally, thereafter accused gave his search to a constable; thereafter he affected search of accused present in the Court. This is also a vital defect in investigation; because oral option is no option for compliance of section 50 of NDPS Act, especially when accused all along has stated that no option was given. There is no other substantial evidence with regard to giving of option to accused.
11. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat, AIR 2011 SC 77, wherein the Constitutional Bench of the Hon'ble Apex Court held in in para 22 as under:-
CRAA No.26/2009 Page 25 of 28"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re: Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (2000 Cri LJ 3485) (supra) and Prabha Shanker Dubey (AIR 2004 SC 486) (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (1999 Cri LJ 3672) (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. If would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and credit-
worthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would CRAA No.26/2009 Page 26 of 28 not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
12. The Court below has noted down various contradictions in the statements of the prosecution witnesses with regard to recovery of contraband and arms with regard to place of recovery, which finding is not perverse in nature. Prosecution has produced quantity of evidence, but quality of evidence is totally missing. There is also no evidence as to whether house in question where recovery of contraband and arms were made was belonging to accused. Ring with which the sealing was conducted has not been produced before the Court. No Police Malkhana Register or In charge of Police Malkhna has been produced, so as to verify the fact that after seizure, contraband remained in safe place.
13. Mr. Suneel Malhotra, learned Govt. Advocate, has not been able to pinpoint any infirmity, which would call for the indulgence of this Court. We are also of the view that the impugned judgment does not suffer from any infirmity apparent on record, which would warrant indulgence of this Court.
14. Law is clear that prosecution has to prove its case beyond reasonable doubts.
Burden to prove prosecution version is wholly upon the prosecution. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused then Court should not go on convicting the accused. In arriving at conclusion about guilt of accused charged with heinous crime, the Court has to judge the evidence by yardsticks of probabilities. Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution.
15. After rescanning the entire case of the prosecution, we do not find any reason, much less compelling and substantial reason, which would warrant indulgence of this Court for the purpose of disturbing the well reasoned judgment already recorded by the trial Court, which is based on appreciation of entire evidence CRAA No.26/2009 Page 27 of 28 on record.
16. We have confined our judgment in re-appreciation of evidence only with regard to present accused- Jagjeevan Singh.
17. Since we do not find merits in the appeal, the same is dismissed.
( Sanjay Kumar Gupta ) ( Dhiraj Singh Thakur )
Judge Judge ,
Jammu:
19.09.2018
Narinder
This judgment is pronounced by me in terms of Rule 138(4) of The Jammu and Kashmir High Court Rules, 1999.
( Sanjay Kumar Gupta ) Judge Jammu:
19.09.2018 CRAA No.26/2009 Page 28 of 28