Jammu & Kashmir High Court
Munish Kumar And Anr. vs State Of J&K; on 26 February, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Cr. Appeal No.17/2017 & MP No. 01/2017
Date of decision:-26.02.2018
Munish Kumar and anr. Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For Appellant(s) : Mr. Rohan Nanda, Advocate.
For respondent (s) : Mr. Sanjeev Padha, GA.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. This appeal is directed against judgment dated 23.05.2017 passed by 1 st Additional Sessions Judge, Jammu, (Special Court under NDPS Act) in case FIR No.01/2015 of Police Station GRP Jammu under Sections 8/21/22 NDPS Act, whereby both appellants (for short 'accused') namely Munish Kumar and Sunil Kumar have been convicted and directed to undergo rigorous imprisonment for a period of ten years and fine of Rs.2 lacs each, for each of the offences under Section 20(b)(ii)(C) and 21(b)(ii)(C) of NDPS Act by the trial Court.
2. In the memo of appeal, it is stated that on the basis of the docket sent by Inspector Neeraj Kumar Choudhary SHO GRP Police Station Jammu from Railway Station Complex that Munish Kumar and Sunil Kumar, both residents of New Delhi on 08.01.2015 had been found carrying a bag with a consignment of psychotropic injections- 2000 of Diazepam , 400 of Bupernorphene ,1480 of Exgesic, total 3880 of 2ml each, at Railway Station Jammu, near a passenger shed and that both of them could not produce any voucher or authority for the possession of these psychotropic injections, Cr. Appeal No.17/2017 Page 1 of 21 which they had transported to Jammu for drugs trafficking, a case was registered at GRP Police Station Jammu vide FIR No. 01/2015 for the commission of offences punishable under sections 8/21/22 NDPS Act. After investigation of the case, instant charge sheet was laid against Munish Kumar S/o Jagdish Prasad R/o H.No.1716 Harish Vihar, New Delhi and Sunil Kumar S/o Mohinder Kumar R/o H.No.1334 Tulsi Niketan Harish Vihar, New Delhi, for the commission of offences punishable under sections 8/21/22 NDPS Act. Both the accused were charge sheeted by the trial court vide order dated 14.09.2015 for the commission of aforementioned offences, who denied the charge and the prosecution was directed to lead evidence. Prosecution, in order to prove its case to bring home the charge against the accused, examined PW 1 HC Sat Pal Sharma, PW 2 HC Kamal Mehra, PW 3 HC Dilip Singh, PW 4 Ct Lal Din, PW 5 SGCt Satish Kumar, PW 6 SGCt Rakesh Kumar, PW 8 SPO Sunil Kumar, PW 9 Ct. Akhter Hussain, PW 10 Pawan Kumar Abrol and PW 15 Kamal Preet Singh, out of 15 cited witnesses.
3. Learned counsel for the appellants has assailed the impugned judgment stating that the trial Court has not appreciated the evidence produced by the prosecution in its right perspective and as such, fallen into grave error of law by holding the appellants guilty of committing aforementioned offence. It is stated that as per the prosecution version, when the appellants were apprehended by the Police at Railway Station, Jammu, near Passengers Shed, the SHO Neeraj Kumar Choudhary came on spot, who conducted the search of the Bag of the appellants and after recovery of injections, he seized the same and in the said seizure memo the prosecution has cited two witnesses namely Lal Din Constable and Daleep Singh Constable. It is further submitted that when both these witnesses were examined before the Trial Court, they had specifically stated that in their presence neither seizure memos were prepared nor the recovery memo wherein both these witnesses were cited as witness, was got exhibited before the Court below and this Cr. Appeal No.17/2017 Page 2 of 21 vital aspect of the case was not taken into consideration by the learned Trial Court while passing the impugned judgment and as such on this count alone, the judgment deserved to be set aside. It is further stated that in this case admittedly all the witnesses which had been cited by the prosecution in the challan they all are the Police witnesses and the investigating officer of the case did not bother to associate any independent witness in the entire proceedings conducted by him on the spot despite their availability, as the appellants were apprehended from a place which is Railway Station being visited by the passengers frequently and where large number of independent witnesses can be easily available around the clock. It is further stated that all the prosecution witnesses who were examined before the trial Court below they all had admitted one thing in the statement that at the time when the bag carried by the appellants was being searched many bye-passers were present there and were watching the proceedings, but despite that no effort was taken by the SHO Neeraj Kumar Choudhary and I.O of the case Ali Mohd. to associate any witness in the recovery and seizure proceedings and this vital aspect of the case was also ignored by the Court below while passing the impugned Judgment and order dated 23.05.207. It is also stated that another important aspect of the case which was not taken into consideration by the trial Court below was that all the prosecution witnesses who were examined before the trial Court below had not stated anything about the fact that any samples from the alleged injections were lifted on the spot. The prosecution has miserably failed to prove this fact before the trial Court below, that the samples from the concerned injection were taken by the I.O on the spot and on this count also the impugned Judgment and order dated 23.05.2017 was liable to be set aside. It is stated that yet another aspect which requires the kind consideration of this Hon'ble Court is that as per prosecution version the appellants were arrested along with the alleged contraband on 08.01.2015 and on the same day, the injections recovered from the appellants were seized and the samples were received by the FSL Cr. Appeal No.17/2017 Page 3 of 21 Expert on 14.01.2015, however, the prosecution has miserably failed to offer any explanation as to from 08.01.2015 till 14.01.2015, the samples remained in whose custody and in whose possession. Neither the I.O of the case had annexed with the final report the copy of register No. 19 of the concerned Malkhana nor he had cited the Mohrar Head Constable as witness in the case in order to prove that the alleged samples from the date of their seizure till they were deposited in FSL were remained in safe custody, which clearly shows that the prosecution had miserably failed to prove the safe custody of samples as well as remaining material in this case and as such, on this submission the impugned Judgment and order was liable to be set aside. It is also stated that in this case the prosecution had also not offered any explanation for explaining the fact with regard to the delay in sending the samples to FSL. As submitted in the proceeding para of the appeal, the recovery was effected on 08.01.2015 and the samples were received by the FSL Expert on 14.01.2015, after a delay of five days and the prosecution had not offered any explanation that as to what prevented them from sending the samples to the Laboratory for chemical analysis within the stipulated period of time i.e. after three days, and as such, on this count also the appellants were seeking the dismissal of the impugned Judgment and order dated 23.05.2017. It is further stated that another glaring deficiency in the instant case at hand which was also ignored by the trial Court is that the I.O of the case had not filled on spot the Form No. 29 i.e. CFSL Form on the spot and neither the same was sent to FSL Expert for comparison and this aspect was also ignored by the trial Court below while passing the impugned Judgment and order dated 23.05.2017. Last but not the least the ground on which learned counsel for appellants is seeking the reversal of the conviction is that all the prosecution witnesses which were examined before the trial Court below had contradicted each other on material aspect of the case like the time when the appellants were apprehended by the police, the place from where the appellants were arrested. It is further submitted that as Cr. Appeal No.17/2017 Page 4 of 21 per the statement made by PW Sat Pal Singh, he had stated that when the appellants were seen they ran away and were chased and apprehended by PW Kamal Mehra, however, when PW Kamal Mehra appeared before the trial Court he had no where stated that the appellants were chased by him. It is further submitted that anther contradiction which appeared in the evidence is in the statement of prosecution witness namely Lal Din Constable is that this witness was cited as a witness to the seizure memo of contraband, however, when he appeared he had nowhere stated in his statement with regard to any seizure of drugs in his presence.
4. With the afore mentioned submissions, learned counsel for the appellants has, thus, prayed that the instant appeal be allowed, the impugned judgment be set aside and appellants be acquitted of the charges leveled against them.
5. Learned counsel representing the State, on the other hand, has supported the judgment of conviction stating that it is a well reasoned judgment based on appreciation of evidence on record and no other view is possible other than one already taken by the learned trial Court. He has prayed for dismissal of the instant appeal out rightly.
6. Heard learned counsel for both the sides, gone through the record and considered the law on the subject.
7. Before re-appreciating the evidence on record, the brief resume of statements of witnesses recorded during trial reads as under:-
PW 1 HC Sat Pal Sharma stated that on 08.01.2015 at 4:00 P.M, when he was present at Railway Station in civies from Special Branch and found both the accused coming from passenger shed, holding a bag from each side. On being suspected, accused were stopped and the bag was opened and in the meantime, SHO also came on spot and during search, Diazepam and Norphene injections were found. However, those injections had neither been seized, nor counted in his presence. On his cross-examination, he Cr. Appeal No.17/2017 Page 5 of 21 stated that he had been deployed at Railway Station at 5:00 P.M alongwith Kamal Mehra Akhter Hussain and Sunil Kumar and he was in- charge of this team. They had searched 20 to 25 persons before the search of the accused. The place of occurrence was near Taxi Stand outside the Waiting Hall. The accused had tried to escape towards main road, however, PW2 Kamal Mehra chased them and apprehended at Railway Station road. Before opening the bag, SHO had told that the accused were having psychotropic injections. SHO had not given the option of search to the accused. At the time of search of the bag, civilian were witnessing the same from a distance. He or SHO had not called any civilian. After 10/15 minutes of checking bag, SHO took away the bag as well as accused to the Police Station. They had gone back to the Police Station at 6:00 P.M after finishing of their duties. His statement had been recorded in terms of Section 161 CrPC. He had come to know about recovery of Diazepam and Norphene injections at the time of recording of his statement, next day of the occurrence.
PW 2 HC Kamal Mehra stated that on 08.01.2015 at 4:00 P.M, accused were found holding a bag from each side and were enquired about the contents and in the meantime, SHO also came on spot and the accused could not give any satisfactory reply with regard to 2400 injections. The drugs had been recovered from one bag only held by both the accused. The drugs had been recovered in his presence, which had been counted. The seized bag was identified by him in the court. On his cross-examination, he stated that they had left for patrolling at 3:00 P.M. Accused had not tried to escape when they had spotted them and kept standing outside Waiting Hall of Railway Station. Accused had been made to open the bag in presence of SHO and many people had been passing by that place. SHO had shifted the accused alongwith the bag to Police Station. The Mediamen had also come to the police station at 7:00 P.M and had taken photographs of the bag.Cr. Appeal No.17/2017 Page 6 of 21
PW 3 HC Dilip Singh stated that accused Manish and Sunil Kumar were known to him. On 08.01.2015, he was patrolling alongwith SHO at the Railway Platform and when they reached near J&K Bank ATM, they found accused having been detained by the officials of Special Branch. On checking the bag, injections were found contained in the bag and the accused could not justify the possession and failed to produce any bill/receipt. SHO drafted a docket and sent Ct Lal Din to the police station and from police station I.O came on spot. The bag had been recovered from the possession of both the accused. I.O Ali Mohd searched the bag and found injections only which on being counted, came out 3880, which were taken to Police Station. At the time of seizure, two Head Constables Sat Pal and Kamal Mehra besides Ct. Akhter and SPO Sunil Kumar of Special Branch, were present. On his cross-examination he stated that the place of occurrence was near J&K Bank ATM, from a thoroughfare and people used to cross that place. ATM Guard or any other passer- by had not been called. SHO had opened the bag himself and had taken out drugs. The bag contained 54 packs with 50 injections each. The injections had been counted after the arrival of I.O, who had reached on spot at 4:10 P.M. I.O at the time of counting had also not called any other persons or ATM Guard. After counting the injections, seized bag and the accused had been shifted to Police Station at about 5:00 P.M. Accused had been photographed alongwith consignment at Police Station and till then, recovered material had not been sealed. I.O had recorded his statement in the evening.
PW 4 Ct Lal Din stated that accused were known to him. On 08.01.2015, while proceedings towards Waiting Hall No. 2 , near J&K Bank ATM after patrolling at Platform no.1, he found that the officials of Special Branch had detained accused and in the meantime , SHO also came on spot. Accused on being enquired gave no satisfactory reply with regard to their bag which was subjected to search by SHO and 3880 injections of three kinds were recovered from their bag. I.O came on spot and shifted the Cr. Appeal No.17/2017 Page 7 of 21 accused to Police Station. Neither his statement had been recorded by the police, nor had any seizure been prepared in his presence. On his cross- examination, he stated that he had left with SHO at 2:30 P.M from the police station and it would have taken 10 minutes to reach to Platform No. 2 from police station on foot. They had stayed at their office at Platform No. 1 till 3:15 P.M and would have taken another ten minutes to reach near J&K Bank ATM where accused had been detained. There was movement of the people at that time. However, SHO had not called any of them. I.O had reached on spot at 3:50 P.M, who had taken out injections from the bag and disclosed that 3880 injections had been recovered. No civilian had been called on spot by the I.O at the time of recording of docket or counting of injections. I.O ASI Ved Parkash, except drafting of docket for registration of the FIR, had not conducted any other proceedings on spot.
PW 5 SGCt Satish Kumar stated that on 08.01.2015 while he was on duty at Railway Station, 3880 injections contained in a bag had been recovered from the accused . The recovered injections had been seized in his presence and the same had been handed over to HC Kamal Mehra. Accused had been searched vide personal search memo ( Ext.P-5) and a railway ticket marked as 'SK' had been recovered from the accused in his presence, besides other articles. His statement had been recorded on spot. On his cross- examination, he stated that before checking accused, other people had also been checked by the team of Special Branch. The bag had been opened by PW Ali Mohd. Whereas, injections had been counted by PW Akhter. He denied having knowledge as to how many packets and how many injections in each of the packets were in the bag. The material shown in the photographs was in unsealed packets.
PW 6 SGCt Rakesh Kumar stated that on 08.01.2015, at about 4:00/4:30 P.M, he had clicked photographs near J&K Bank ATM at Railway Station on the instructions of Inspector GRP Jammu and identified the photographs Cr. Appeal No.17/2017 Page 8 of 21 marked as 'RK-2' and 'RK- 4'. These photographs were of the accused and of the recovered injections. On his cross-examination, he stated that he had been called by GRP Police Station at 4:30 P.M and when he reached there, he found the accused, standing there. He, however, denied having knowledge as to wherefrom the accused had been detained. After photography, accused alongwith consignment had been shifted to the police station by the police. In the evening, the seized material was again opened and he had clicked photographs ' RK-1' and 'RK-3', there. No material had been seized by the police in his presence.
PW 8 Sunil Kumar SPO stated that accused were known to him. On 08.01. 2015 at 4:00/4:30 P.M, they laid a naka near ATM when the train reached the platform. During search accused were found carrying a bag held by both of them and on search of the bag, sealed packets were found and on opening those packets, injections were found therein. SHO also came on spot, who asked for permission, but accused could not produce anything. On his cross-examination, he stated they had left for checking from the police station at 3:30 P.M and they had laid naka near ATM. Besides him, HC Kamal Mehra and Ct Akhter were also present. Many passengers had been moving when accused were searched. Accused had been detained on being suspected. He denied having knowledge with regard to providing of option of search before a Magistrate or a Gazetted Officer to the accused . His statement had been recorded before the Magistrate also.
PW 9 Ct Akhter Hussain stated that the accused were known to him, who on 08.01.2015 had been checked at naka on the back side of ATM. Accused on being stopped could not produce any Identity Card and on asking that what was contained in the bag, they stated that the bag contained clothes. On search of the bag, a jacket and intoxicating injections were recovered and SHO was informed of this development, who came on spot, checked the bag and a docket was sent to police station through PW Cr. Appeal No.17/2017 Page 9 of 21 Lal Din, wherefrom I.O Ali Mohd came alongwith Photographer , who clicked photographs of the accused and the plice party. He identified photographs 'RK-1 to RK-4' . SHO had told them that there were 3880 injections of three different kinds. On his cross-examination, he stated that he had proceeded towards naka at 4:00 AM alongwith SGCt Kamal Mehra and Satish Kumar besides an SPO. Injections had been counted by I.O Ali Mohd. His signatures had been obtained on a blank paper. Photographs ' RK-1 and RK-3 had been clicked at Police Station.
PW 10 Pawan Kumar Abrol stated that on 14.01.2015 he received three sealed packets forwarded by SDPO Railways Jammu vide his letter No. Rlys/SDPO/ 15/105-06/GRP dated 14.01.2015 through SI Ali Mohammad No. 781790/EXJ of P/S GRP Jammu, in case FIR No. 01/2015 under sections 8/21/22 NDPS Act of P/S GRP, Jammu. The packets /exhibits were found sealed and reached with him with nine seals intact in each. The three sealed packets marked as exhibits A, B and C, further given the exhibits No. P-28/15 to P-30/15 by him, were subjected to various chemical tests and chromatographic examination and Diazepam was detected in exhibit No. P-28/2015. Diazepam is a Tranquilizer. Bupernorphine Hydrochloride was found present in exhibits No. P-29/2015 and P-30/2015. Buprenorphine Hydrochloride is a Narcotic Analgesic. He admitted the contents of his report (Ext.P-10) as correct. On cross- examination, he stated that it takes only 30 minutes to reach FSL Jammu from P/S GRP, Jammu. The sealed packets received by him did not bear the signatures of any independent witness and accused, however, it was bearing the seal and signature of Executive Magistrate only. It is true that no slip bearing the seal impression of Magistrate was found inside the sample packet. He does not remember whether the seal impression used by SDPO on the samples was sent on forwarding letter or a piece of cloth. He had not seen the forwarding letter of SDPO in Court. Except the seal of SDPO and Naib Tehsildar, there was no other seal Cr. Appeal No.17/2017 Page 10 of 21 impression on the packets. After the chemical examination, he had sent back the remnants to the concerned investigating agency. H has also not seen today the remnants in the court today. Diazepam is not Narcotic Analgesic. The samples were not packed in a plastic or wooden box. There was no impression of seal inside the packet. He cannot comment whether the rest of the material seized by the police contains any narcotic analgesic. He has not quantified the narcotic drug in exhibits no. P-29/2015 and P-30/2015 as they do not have any facility in the FSL at Jammu. He has not mentioned in his report the detail of chemical tests performed to reach at the conclusion that the sealed packets contained Diazepam, Bupernorphine Hydrochloride , however, he has mentioned the same in his internal record lying with FSL, which he had not brought along.
PW 15 Kamal Preet Singh stated that on 12.01.2015, when he had been working as Naib Tehsildar Jammu, an ASI of GRP came to him with three sealed packets for re-sealing the same. He had re-sealed those packets and authorized FSL for opening the seals vide authority letter ( Ext.P-15). On his cross-examination, he stated that accused had not been produced before him at the time of seeking re-sealing of the sealed packets. He had not seen the contents of sealed packets , as such, he cannot say as to what was contained in those packets. The sealing ring had not been produced by the police for comparison with its seal impression.
This was the sum and substance of the evidence led by the prosecution. The incriminating evidence was explained to the accused, who were examined in terms of section 342 Cr.P.C., who pleaded innocence and false implication, did not opt to lead any evidence.
8. Learned trial Court after appreciating the entire evidence on record, observed that the prosecution has succeeded to bring home the charge against the accused for the commission of offence under Section 8 punishable under Sections 21 & 22 of the NDPS Act. The accused found to Cr. Appeal No.17/2017 Page 11 of 21 have in their possession commercial quantities of psychotropic substances in contravention of Section 8 of NDPS Act, punishable under section 21
(b)(ii)(C) and 22 (b) (ii) (C) of NDPS Act. It is apt to reproduce relevant paragraphs of the impugned judgment, which read: (relevant paragraphs are 20, 21, 25, 26, 27 & 28) "20. Both the accused without holding any license were found to have in their possession a huge consignment of manufactured drugs of 2000 injections of Diazepam, 400 injections of Bupernorphine and 1480 Exgesic injections, total 3880 injections of 2 ml each. 2000 injections of Diazepam of 2 ml each comes to the weight of 4000 grams, whereas, Diazepam as reflected at Item no. 194 in the Notification specifying quantities has been shown 20 grams as ' small quantity' and 500 grams as 'commercial quantity' . As such, 4000 grams of Diazepam is grossly commercial quantity recovered from the accused. 400 injections of Bupernorphene, 2ml each on conversion to weight comes to 800 grams and Bupernorphene has been shown at Item no. 169 of the Notification specifying the quantities, 01 gram as 'small quantity' and 20 grams as ' commercial quantity', therefore, 800 grams of Bupernorphene is also grossly commercial in nature. Accused are thus, found to have kept in their possession commercial quantities of the psychotropic substance on being smuggled to Jammu City from national capital, on 08.01.2015.
21. For the foregoing reasons and observations made hereinabove, it is held that the prosecution has succeeded to bring home the charge against the accused for the commission of offence under section 8 punishable under sections 21 and 22 of the NDPS Act. The accused are, thus, held guilty of having in their possession after importing /smuggling into the State, commercial quantity of psychotropic drugs punishable under section 21 (b)(ii)(C) and 22 (b) (ii) (C) of NDPS Act. Accused are thus, convicted for the commission of aforementioned offences. The offences under section 20 (b) (ii) (C) and 21 (b)(ii) (C) of NDPS Act each are punishable with rigorous imprisonment for a period which shall not less than ten years and which may extend to twenty years and fine which may not be less than one lakh rupees and may be upto two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
25. The epidemic of drugs in young generation has assumed alarming dimensions in India. It has led to increase in the crime rate. With most drug users being in the productive age, the loss in terms of human potential is incalculable, causing damage to their physical, psychological, moral and intellectual growth. Drug Abuse has became a major problem of the society over the years. The illicit drugs have a high addiction potential and there is gradual increase in their intake, getting the users dependent on these drugs both physically and psychologically. The young generation , which is called future of a society or a nation are thus, at a peril.
Cr. Appeal No.17/2017 Page 12 of 2126. Both the convicts are of younger age, who have to support their families. It is also indisputable that both the convicts are first offenders. The young age of the convicts and being first offenders are extenuating factors to mitigate the maximum sentence of imprisonment, so that they get a chance for reformation. Underlying principle of sentencing is that instead of misplaced undue sympathy, appropriate sentence, commensurate to the crime committed should be imposed. Having considered the dichotomy of the rival submission made by the Public Prosecutor and Defence Counsel, this court is of the considered opinion that minimum sentence of imprisonment and maximum sentence of fine, shall serve the ends of justice in this case.
27. For the foregoing reasons and observations made hereinabove, the convicts are sentenced to undergo rigorous imprisonment for a period of ten years and fine for an amount of Rs. 2.00 lac each, for each of the offences under section 20(b) (ii)(C) and 21(b) (ii) (C) of NDPS Act. In default of payment of fine, the defaulting convict shall undergo further simple imprisonment for a period of three years. The period of detention undergone already during investigation and trial shall be set off, from the substantive sentences of imprisonment which shall be concurrent . Fine if recovered, shall be remitted to Govt. Exchequer under rules.
28. Seized psychotropic material shall be destroyed, after the period of appeal is over. Seized articles recovered , if any , from the personal search of the convicts , shall stand released in their favour. Copy of this judgment is furnished to each of the convicts, free of costs and they are made aware about their right of appeal, within the statutory period of limitation. Office shall issue warrant of imprisonment in the name of Superintendent District jail Jammu, who is directed to execute the sentence and report compliance, as to how and in what manner the sentence has been executed.
9. Considered the rival contentions and perused the record of court below.
10. From the perusal of file, it appears that prosecution has cited as many as 15 witnesses and has examined 10 witnesses. I/O in the case has not been examined. Law is clear that only quality of witnesses is required to be appreciated and not quantity. If only oral statements are to be appreciated, then one can say that there are enough materials against the accused persons, but in NDPS Act certain cardinal principles of law and mandatory safe guards provided in NDPS Act have also to be considered. In NDPS Act ,it is not recovery of contraband effected is enough, the manner of conducting investigation is also relevant. In all NDPS Act cases investigation get completed approximately at spot except to reseal the sample and obtaining of FSL report. All offenses under NDPS are heinous in nature and provide severe Cr. Appeal No.17/2017 Page 13 of 21 punishment and so certain safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow. The legislature while enacting NDPS Act have incorporated several provisions in Chapter-V of the NDPS Act governing the arrest, search and seizure to afford safeguards so that innocent persons are not harassed and these mandatory provisions are complied with. Now let us see whether the police have complied with the mandatory provisions during the investigation in the instant case or not.
11. Under Section 52A (2) of the NDPS Act, procedure has been laid down for preparation of an inventory of such Narcotic Drugs or Psychotropic Substances containing details like description, quality, quantity, mode of packing, marks, numbers and such other identifying particulars etc and forwarding the same to the officer of the nearest police station or to the officer empowered under section 53 and making an application to any Magistrate for the purpose of:
a) certifying the correctness of the inventory so prepared; or
b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying photographs as true; or
c) allowing drawing representative samples of such drugs or substances, in presence of the Magistrate and certifying the correctness of any list of samples so drawn. The Magistrate has to allow such application as soon as may be.
12. In the instant case, no such inventory was prepared, nor was any application made to the Magistrate as required. The investigating officer did not fill up form on spot. In Gurbax Singh Vs. State of Haryana, 2001 (1) Supreme 625 it was held as under :-
Cr. Appeal No.17/2017 Page 14 of 21......... that non-compliance of the provisions of Sections 52, 55 and 57, which are no doubt, directory and violation thereof, would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and , as such, failure will have bearing, on the appreciation of evidence, regarding search and seizure of the accused.
13. I/O in the case has not been examined. Learned State counsel has argued that since the provisions of Section 55 are directory in nature, he was not bound to comply with the same. If such an argument is taken, as correct, then the provisions of the Act, which are directory, in nature, would be disobeyed with impunity, by the investigating officers. Compliance of the said provisions is a sign towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during search and seizure. Non-
compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure may come under cloud, if the Court seems to condone acts of violation of the statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story.
14. No CFSL form on spot has been prepared and filled, which was very much necessary in order to rule out tempering of seals affixed on sample taken on spot. Law of investigation in criminal case especially in NDPS case, is clear that wherever incriminating article are seized during investigation which are required to be sent to FSL, they are immediately sealed and deposited in Malkhana at police station till they are taken out there from to be sent to FSL for examination. Contemporaneously, with seizure and Cr. Appeal No.17/2017 Page 15 of 21 sealing of such article, impression of seal used on sealed articles, is put on the form commonly known as CFSL Form. This is so done because at the time of analysis of sealed packet in laboratory, analyst concerned may be able to tally seal impression on the sealed packet with those appearing on CFSL Form in order to rule out any possibility of tampering of seals on sealed packet after seizure anywhere or in transit till receipt in laboratory. The importance of CFSL Form thus, cannot be overemphasized, because, the document provides a valuable safeguard to an accused to ensure that no tampering has been done during the intervening period. The prosecution is required to rule out even a possibility of any such tampering and it is not required of an accused to prove that actual tampering did take place. This is based on fundamental and cardinal principle of Criminal Jurisprudence and that wherever there is a possibility of doubt, benefit thereof must accrue to an accused. CFSL Form is a forwarding note accompanying a sample sent by police to Forensic Laboratory. Such a form contains the nature of crime, list of samples being sent for examination, nature of examination required and specimen of the seal affixed on the sample, besides, particulars of case. Although, CFSL form is not a requirement under provisions of NDPS Act or Code of Criminal Procedure but it is rule of prudence having ripened into a Rule of Law lending assurance to the fact that sealed sample packet has not been tampered with by anybody. In present case, as already discussed, neither there is a CFSL Form nor there is receipt of Malkhana, as to when the sample of contraband was deposited in Malkhana of police and when it was taken out for examination purpose.
15. Bare perusal of FSL report of PW Pawan Abrol FSL, it is evident that there is also no such mention that CFSL form was sent to him. There is also no receipt register of police Malkhana with regard to deposit of seized contraband in police Malkhana, because recovery has been effected on 8.1.2015 and it was got resealed from EMIC on 12.1.2015; again sample of seized articles were sent to FSL on 14.1.2015, so it was mandatory on Cr. Appeal No.17/2017 Page 16 of 21 behalf of prosecution to say as where seized articles and sample remained within these period, by producing co gent evidence. I/O in the case has not been examined, so there is no explanation in this regard. Even there is no document in this regard in challan. It is well settled that prosecution has to prove affirmatively that right from the stage of seizure of the contraband till it reaches the hand of chemical analyst, there was no possibility to change or tamper with the material or the sample.
16. 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."
17. In State of Rajasthan Vs Daulat Ram AIR 1980 SC 1314, it has been held as under:
".... It is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I. Aidanram, P.S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by Cr. Appeal No.17/2017 Page 17 of 21 the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period a fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the seals remained intact..".
18. The initial docket allegedly written by SHO GRP on which FIR was registered has not been proved, because scriber (SHO) of docket has not been examined. Seizure memo of contraband has not been proved, because two witnesses PWS HC Sat pal and Kamal Mehra though examined by prosecution, were never put this seizure memo during examination. However PW Sat Pal has stated that nether contraband were counted nor seized in his presence. So this recovery memo has not been exhibited at all. As I/O in the case has not been examined, so this recovery memo has further not been authenticated during trial.
19. Coming to sealing of contraband and sample on spot, I/O in the case has not been examined. So this fact has not been proved. Even ring with which contraband was sealed, was not produced. Even superdnama in this regard has not been proved, because it has not been exhibited.
20. Now coming to oral evidence on record, it is further evident that there are lots of contradictions. PW Sat Pal Singh had stated that when the accused were seen they ran away and were chased and apprehended by PW Kamal Mehra, however, when PW Kamal Mehra appeared before the trial Court he had no where stated that the accused were chased by him. Further PW Dilip Singh has stated that SHO drafted a docket after recovery of contraband and sent the docket through Ct. Lal Din for lodging FIR; but Ct.
Cr. Appeal No.17/2017 Page 18 of 21Lal Din when examined has stated that after recovery I/O came on spot and neither his statement was recorded nor any seizure was effected.
21. The witnesses who have contradicted each other on these aspects are police personnel. These discrepancies could have been ignored had the witnesses been rustic villagers. These discrepancies have come in the statements of police officials who receive adequate training and who know the implications of the statements made before the court of law. So, these cannot be ignored. The discrepancies or contradictions in the statements become material in the instant case as the statements have come from the trained officials of the Police Force. Therefore, in the opinion of this court, a contradiction or defect in the statement of police witness takes the complexion of material deficiencies. This is more so because NDPS Act imposes strict liability on offenders. The guilt of anyone accused of a crime under NDPS Act thus, has to be established by scanning the prosecution evidence in the manner of a microscopic examination.
22. The whole incident took place at public place at Railway Station, therefore, there was ample opportunity for the police to associate independent witnesses in the seizure of the contraband As I/O has not been examined, so there is explanation in this regard also.
23. In State of Punjab Vs Bhupinder Singh, 2001 (1) RCR (Crl) 356 (P&H), a Division Bench of Hon'ble High Court of Punjab and Haryana, held the case of prosecution doubtful on account of non-joining of an independent witness though the recovery was effected from a busy locality. In State of Punjab Vs Ram Chand 2001 (1) RCR (Crl) 817 (P&H), a Division Bench of Hon'ble High Court of Punjab and Haryana, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully Cr. Appeal No.17/2017 Page 19 of 21 applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution became highly doubtful. The trial court failed to take into consideration, this aspect of the matter, as a result whereof miscarriage of justice occasioned.
24. Due to non examination of I/O and SHO concern the initial docket, FIR, site map, seizure memo, memo of personal search of accused and other relevant documents in challan have not been proved. Every document in challan is required to be proved as per Evidence Act like primary or secondary document.
25. The courts while appreciating the evidence in criminal cases have to see the decree of proof in maxim than that of civil case. 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.
26. In view of what has been discussed above, I am of considered opinion that prosecution has not proved its case beyond reasonable doubt. Appeal is allowed. Hence, appellants/accused persons are entitled to benefit of doubt. They are acquitted of charges leveled against them . Accused are directed to be set free, if not required in any other case. The seized properties be destroyed after appeal time.
(Sanjay Kumar Gupta) Judge Jammu 26.02.2018 Narinder Cr. Appeal No.17/2017 Page 20 of 21 This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.
( Tashi Rabstan ) Judge Jammu 26.02.2018 Narinder Cr. Appeal No.17/2017 Page 21 of 21