Ashok Kumar Koul vs State through SHO, Bakshi Nagar

Mohammad Yaqoob Mir, J.—Appellant has been convicted for having committed the offence punishable under Section 20(b)(c) of the

Narcotics Drugs and Psychotropic Substances Act, 1988 (NDPS Act, for short).Vide order dated 28.04.2012 has been sentenced to rigorous

imprisonment for a period of twenty (20) years and fine to the tune of Rs.1,00,000/-(one lac), in default has to suffer rigorous imprisonment for

period of three years.

According to learned counsel for the appellant, the judgment is contrary to the evidence, law and facts; mis-appreciation of evidence and then

non-application of mind is quite apparent from the judgment itself.

According to learned Senior Additional Advocate General, three (3) kilograms of Charas have been recovered from the appellant (accused).

Persons dealing in the business of Charas deserve to be dealt with sternly as has been done by the learned trial court by awarding severe rigorous

imprisonment of twenty (20) years and fine of Rupees one lac (Rs.1,00,000/-).

Keeping in view the severity of the punishment awarded, seriousness of the offence allegedly committed and the rival submissions of the learned

counsel for the parties, we have bestowed our consideration to the facts, circumstances and have also perused the evidence. It would be

advantageous to precisely state as to what the case of the prosecution is and the evidence produced in support thereof.

On 11.10.2007, police party headed by SHO left in a government vehicle (Gypsy) at about 3 PM for patrolling while reaching near to Geeta

Mandir, Bakshi Nagar, a person carrying a white bag on his shoulder was coming out of a street who while spotting the police Gypsy turned back

towards the street. On suspicion, the police party caught hold of him, on enquiry, the person disclosed his name as Ashok Kumar Koul, S/o Prithvi

Nath Koul, a Kasmiri Pandit, R/0 Budgam Kashmir residing in a rented house No.176 at Bakshi Nagar. During the enquiry, number of persons

from the nearby area assembled and in presence of those civilians on search, from the bag, cotton and one sky colour envelope was recovered, on

opening thirty six (36) pieces wrapped in maize covers were recovered, further from the pocket of the pant worn by the accused, two (02) pieces

wrapped in maize covers were also recovered. On request of the SHO, SDPO also reached on spot, the Charas recovered was photographed,

was also weighed in presence of SDPO and the civilian persons. The total weight of the recovered material including the maize covers was Three

(03) kilograms which was seized. Small small quantity from the said recovered pieces, weighing one hundred (100) grams as sample were taken

for chemical examination. The said sample weighing one hundred (100) grams was sealed on spot with a mark B and rest of Charas was marked

as A.

The SHO had sent the docket to the police station with the said details based on which case was registered as FIR No.137/07, P/S Bakshi

Nagar for commission of offence under Section 20 NDPS Act. The investigation was entrusted to Shri Rattan Singh, SI who came on spot,

prepared the site map, also seized one sealed packet, i.e. sample of Charas weighing one hundred (100) grams, seizure memo and Superdnama

were also seized, statements of the witnesses were recorded, on conclusion of investigation, accused was found to have committed the offence

punishable under Section 20 of the NDPS Act. The sample was sent to the FSL, report of the FSL was obtained in terms whereof the offence

under Section 20 NDPS Act was established.

Charge was framed against the accused by the trial court vide its order dated 07.03.2008 to which accused pleaded not guilty. Prosecution

thereafter in support of its case out of listed 11 Prosecution witnesses produced, five witnesses who were examined. Learned trial court in its order

dated 25.11.2011 has recorded that despite numerous opportunities for production of all the prosecution witnesses, calendars were fixed, not

availed therefore closed the prosecution evidence.

Accused has been examined in terms of Section 342 Cr.PC wherein accused denied complicity in the crime, claimed to be innocent and has

also added that witness Pammy Kumar and Anil Kumar got him arrested in a wrong case on the basis of enmity pursuant to a conspiracy he has

been involved when he is innocent.

The trial court had asked the accused to enter upon the defence but the counsel for the accused had made a statement that accused will not lead

any evidence in defence.

What will be the effect of withholding Six (6) listed prosecution witnesses would be looked into hereinafter.

It would be appropriate to precisely notice the material depositions of the five prosecution witnesses who have been examined.

Prosecution Witnesses:

PW-Rakesh Kumar has stated that on 11.10.2007 at about 3 PM, he was on patrol duty with SHO, while reaching near to Geeta Mandir at

Bakshi Nagar, a person carrying Gunny Bag on his shoulder was coming from a street. While noticing police vehicle (Gypsy) tried to hide himself,

SHO got suspicious and asked to nab the said person, he (witness) along with other ran and caught and brought him before the SHO, in the

meanwhile some civilians came on spot, SHO asked the name of the person. The gunny bag was searched in presence of the civilian persons,

cotton and one sky colour envelope was found, on opening it contained Thirty six (36) pieces wrapped in maize covers, then on search, from the

right pocket of the pant of the accused, two pieces of Charas wrapped in maize cover were also recovered while weighing the same on spot it was

found approximately three kilograms. Same was seized, photgraphed, seizure memo was prepared, sample was also taken for being sent to FSL,

SHO prepared a docket for registration of the case which he (witness) carried to the police station then IO had to conduct the investigation, he

does not know anything further. The accused present in the court is the same person from whom the Charas was recovered.

On the cross examination stated that the accused was residing in a rented house, i.e. in the house of Anil Kumar which is located in the same street

where from he was coming. Whether SHO or Munshi of the Police Station had knowledge about the rented premises of the accused, he cannot

say. It is true that accused ran away along with gunny bag. He does not know where from the weighing scale was brought nor does he know as to

whether on spot from the provisions shop weighing scale was brought or not, police was not having its weighing scale. It is true that house no.176

belongs to Anil Kumar. He does not know as to whether regarding occurrence, SHO had received any pre information or not, nor he had any

such information. He does not know as to whether accused and his wife had come to police station Bakshi Nagar for lodging the report against the

house owner Anil Kumar.

PW-Anil Kumar has stated that accused is known to him, resides on rent in Bakshi Nagar, on 11.10.2007 he (witness) was standing in the market

near Geeta Mandir at Bakshi Nagar, accused had a bag on his shoulder, police caught hold of him for enquiry, when the bag was brought down

from his shoulder, in addition to cotton, some envelopes containing Charas were recovered. The Charas was wrapped in maize covers. Its weight

was three (3) kilograms, sample was taken and sent for analysis.

On cross examination stated that on 11.10.2007, he was posted in Girls Hostel Medical College and his duty was from 10 am to 4 pm. He has

two storeyed house, accused resides there on monthly rent, a sky blue colour gunny bag was seized, today in the court, the charas or the

envelopes or the gunny bag or the maize covers are not shown to him nor he saw the same. Five days after the date of arrest, he had turned out the

accused from his house. Accused used to watch television till late night, he and his family were feeling uncomfortable, though he was asked not to

do the same but he continued, accused was not even ready to leave the house, therefore, he (witness) was annoyed with the accused, in view of

the attitude of the accused, he wanted to turn him out from his house, prior to the instant FIR, there was no case or FIR registered against the

accused, however, he got the instant FIR registered.

PW-Yogeshwar Singh (Constable) has stated that on 11.10.2007, while on patrolling along with SHO, accused Ashok was carrying a gunny bag

while spotting them (police party) he (accused) started running away. They (police party) chased and caught hold of him, on search from the gunny

bag, one envelope containing Charas was recovered.

On cross examination of the counsel for the accused stated that he along with two/three constables were accompanying SHO whose names are

Rakesh Sharma, Shamsher Singh and Som Nath- SHO, he (witness) and the said three persons were on patrol, no other police personnel were on

patrol with them. Usually they would go for patrolling, while leaving the Gypsy at Bakshi Nagar, they were moving on foot on 11.10.2007 Ashok

Kumar was arrested during patrolling by the said five police persons, statement under Section 161 CrPC as has been recorded is attributed to him

as same is not correct because he has not given any such statement. He has no knowledge as to whether SHO has given any option to accused

before search, search of the accused was effected only after IO reached on spot.

PW-Pammy Kumar has stated that accused is known to him. On 11.10.2007 he was going towards the street and found accused carrying a

plastic bag, in the meantime police came and caught him, from the bag, Charas was recovered which was weighed to be about three kilograms, in

addition from the pocket of the pant of the accused also, charas was recovered which was seized on spot. Anil Kumar and one more boy namely

Sehgal were present on spot, thereafter police prepared the papers, he also signed, arrest memo, seizure memo regarding sample of Charas were

signed by him, same are correct, bears his signatures, seizure memo regarding recovery of three kilograms of Charas is correct. The said memos

already respectively stand exhibited as ExTP-AK, ExTP-AK1, ExTP-AK2, ExTP-AK3.

On the cross examination of the counsel of the accused stated that he is a shop keeper, he does not know the colour of Charas, sits on his shop

from 10 am to 10 pm, on 11.10.2007, he had gone to his residence for taking meals where accused resides he does not know. His (witness)

house and Anil Kumar''s house are quite adjacent having one common wall. Anil Kumar is a government employee posted in Medical College,

Anil Kumar''s house is two-storeyed, from his first storey, his (witness) internal house is quite visible and everything is viewable, if any person does

anything in the first storey of the house of the Anil Kumar, he (witness) gets disturbed. Further stated that he did not see the Charas or bag or

envelope nor maize covers in the court. He does not know whether the case is false or based on truth. What is written in ExTP-AK, ExTP-AK1,

ExTP-AK2, ExTP-AK3 by the police, he does not know because he cannot read Urdu, he does not know wherefrom police arrested the

accused and wherefrom seizure was effected.

PW-Pawan Abrol (Assistant Scientific Officer) has stated that on 19.10.2007 while being posted as assistant scientific officer in Forensic Science

Laboratory, Jammu, he received one sealed packet forwarded by Dy.SP( SDPO) City West Jammu in case FIR No.137/07 under Section 20

NDPS Act of P/s Bakshi Nagar Jammu vide letter no.10596-94/SDCW dated 19.10.2007 through constable Satvinder Singh No.2335/J which

was marked as Packet-B. The packet was bearing seven intact seals out of which three seals tallied with the specimen seal forwarded by

Executive Magistrate (NT) Jammu and four seals tallied with the specimen seal impression forwarded by Dy.SP (SDPO) City West Jammu. The

packet was found to contain eight pieces of some blackish brown colour material packed in a paper which were collectively given the exhibit no.P-

561/07 by him (witness). The sample material weighed Thirty (30) grams.

The sample material was subjected to various chemical macroscopic and chromatographically examination. The result arrived at is as under:-

Exhibit was identified as Charas. The report bears his seal and signature. The report is marked as No.1296/FSL dated 10.11.2007 and is

marked as Ex-TP-AX. On cross examination of the counsel of the accused stated that he has been working in FSL for last twenty seven years as

assistant scientific officer. He does not know as to with whom the packet remained prior to 19.10.2007. He compared both the seal impressions

on the packet by naked eye. The packet was sealed with white coloured thread, neither seals, impressions nor any packet is shown to him in the

Court. In the packet, eight pieces of some blackish brown coloured material was lying. The collective weight of the contraband was Thirty (30)

grams. He has not mentioned the percentage of Tetrahydro Cannabil in the report, neither he knows what percentage of the said substance was

there in the exhibit. He had further stated that letter No.10596/97 SDC dated 19.10.2007 is lying in his office which he can produce, for

production of which statement of the witness was deferred but thereafter never produced.

On the basis of the aforesaid depositions of the prosecution witnesses, conviction could not be recorded. The following questions were

required to be considered which the learned trial court has totally ignored.

(1) Out of 11 prosecution witnesses, only five were produced, no explanation has been tendered for withholding six witnesses which include

investigating officer.

(2) The sample of Charas weighing one hundred (100) grams was taken, sealed and sent for analysis but as per deposition of PW Pawan Abrol,

Assistant Scientific Officer, sample of only Thirty (30) grams was received by him in FSL.

(3) (a) PW-Anil Kumar (a civilian) in whose house accused was residing on rent has stated that it is he who got the case registered against the

accused. Further has stated that he wanted the accused to quit his house as he (accused) used to watch TV till late night, his family was getting

disturbed, so he was annoyed with him.

(b) He (Anil Kumar) stated that he was posted in Girls Hostel Medical College Jammu and his duty was from 10 am to 4 pm, the occurrence is

stated to have occurred at 3 pm, no explanation how he was there at the street, place of occurrence?

4 (a) Another civilian witness who has been examined Shri Pammy Kumar has stated that house of the Anil Kumar is adjacent to his house having

common wall and if anything happens in the upper storey of the Anil Kumar, same is viewable from his residence, when he was asked as to where

the accused resides, he has shown ignorance, a clear lie?

(b) He has further stated that on spot Anil Kumar and one boy Sehgal were present. Nothing is said about Sehgal, nor he is a witness.

(c) He has stated that he does not know what police has written in ExTP-AK, ExTP-AK1, ExTP-AK2, ExTP-AK3, then has further stated that

he does not know where from police arrested the accused and where from seizure was effected.

(d) Has further stated that seizure memo and other memos already stand exhibited as ExTP-AK, ExTP-AK1, ExTP-AK2, ExTP-AK3. How so,

same is not borne by the records, i.e. in the depositions of the other witnesses, it is no where mentioned that the memos were marked or exhibited,

this also has remained to be explained.

Non examination of the IO as a witness is not always fatal but in the facts and circumstances as referred herein above and in the context of the

evidence produced, his examination was imperative. Non-examination of I O has caused therefore serious prejudice to the accused. It shall be

advantageous to quote Para 11 of the judgment captioned as Raj Kishore Jha v. State of Bihar and others, AIR 2003, SC 4665.

Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution

version. In Ram Dev and another v. State of U.P. (1995 Supp (1) SCC 547), it was noted that non-examination of the Investigating Officer

does not in any way create any dent in the prosecution case much less affect the creditability of otherwise trustworthy testimony of the eye-

witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after

examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have

caused any prejudice to the accused on account of Investigating Officer''s non-examination. The prosecution cannot be attributed with any lapse or

ulterior motives in such circumstances. In Behari Prasad and others v. State of Bihar (1996 (2) SCC 317) it was held that case of prejudice

likely to the suffered mostly depends upon facts of each case and no universal straight-jacket formula should be laid down that non-examination of

Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad and another v. State (Delhi

Administration) (2000 (2) SCC 646), Bahadur Naik v. State of Bihar (2000(9) SCC 153) and Ram Gulam Chaudhury and others v.

State of Bihar (JT 2001 (8) SC 110).

(Emphasis added)

According to PW-Anil Kumar, the instant case was got registered against the accused by him, it appears to be probably because it is he who

wanted accused to quit his house as while residing there on rent accused used to watch TV till late night. The family of the witness was getting

disturbed, he was asked to vacate the house which he had not, so annoyance. Same position is further supported by the statement of Pammy

Kumar, neighbour of the Anil Kumar who stated that he does not know where accused was residing but then has qualified that his house and Anil

Kumar''s house are adjacent having common wall and everything is viewable from each others house and how could he say he does not know

where the accused is residing, that further adds to the doubt. In addition, memos which have been exhibited as ExTP-AK, ExTP-AK1, ExTP-

AK2, ExTP-AK3 are also doubtful as referred to above and in addition thereto this witness Pammy Kumar stated that he does not know what

was recorded in these memos and he even has gone to the extent of saying that he does not know where from the accused was arrested and

where from seizure was effected.

Whether the Charas was weighed, if yes, nobody says where from the weighing scale was brought that aspect has remained in the region of

suspicion.

The doubtful position of the case is further compounded by the fact that investigation has been way-ward perhaps that is the reason

investigating officer has not been examined or for that purpose, the SHO who too had conducted the proceedings on spot was not produced.

The most astonishing aspect is that learned trial court has made certain observations in the judgment which suggest that with eyes shut, there

has been a pre determination for convicting the accused in the name of having been dealing with Narcotics drugs. The position is exposed by the

observations made by Trial Court in the judgment impugned, same are extracted herein below:

Scanned the record of the file meticulously and the statements of the prosecution witnesses. Appreciated the evidence therein and the legal

provisions contained therein under the Arms Act.

Counsel for the accused has emphatically argued that manner in which recovery has been effected cannot be attributed to the accused, other

than the recovery of drugs and two grenades, there is no evidence against the accused directly or substantially.

The prosecution has been conducted in utter disregard to the legal provisions of a mandate and a protection provided to the accused in this

regard, I am guided by ruling of the Hon''ble Supreme Court 2006 (2) Acquittal 581"".

"" There is sufficient and ample evidence that on the arrest of the accused, he made disclosure statement which led to the recovery of Charas to

be carried or in possession and recovery memos were prepared thereof. All the recoveries effected at the instance of the accused""......

Note: No such disclosure statement has been made nor it is the case of the prosecution that the disclosure statement has been made nor any such

disclosure statement is proved, how learned trial court has recorded it, is quite unfortunate.

Learned trial court has not said anything about the position of the sample which according to the prosecution case was one hundred (100)

grams but in the FSL only 30 grams has been received. This position has not been explained. Trial court has not addressed the issue. The serious

doubt whether the sample was same, cannot be same because the sample was of one hundred (100) grams. The learned trial court has not also

addressed the important aspect of the case i.e. the enmity between PW-Anil Kumar which he had with the accused (his tenant).

The fact of non production of the six (6) prosecution witnesses which include investigating officer and the SHO, there could be no case for

recording the conviction, how the learned trial court has recorded conviction and then awarded twenty (20) years of rigorous imprisonment and

fine of Rupees one lac (Rs.1,00,000/-) is totally astonishing. In fact, rule of criminal jurisprudence has been routed. What to speak of strict

standard of proof for proving the guilt of the accused, even within the shadow of doubt, case is not proved against the accused. Such conviction is

simply imaginative.

Either learned presiding officer has been swayed by sentiments so as to show that a person facing charge of narcotics drugs has been taught

lesson ignoring the fact that the trial has an objective to ensure fairness by giving both prosecution and the defence opportunity of proving and

disproving the guilt which principle has been thrown to winds.

Prosecution case was to be dismissed and accused to be acquitted solely on the ground i.e. when the sample of the charas was weighing one

hundred (100) grams but in the FSL only 30 grams were received that was serious lapse giving rise to a serious doubt about the sample itself. Para

14 of the judgment rendered by the Hon''ble Apex Court in the case of Rajesh Jagdamba Avasthi v. State of Goa, AIR 2005 SC 1389 is

advantageous to be quoted:

we do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas

weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the

laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the

other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned

counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was

recovered only from envelope ''A'' ignoring the quantity of Charas found in envelope ''B''. This is because there was only one search and seizure,

and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if

it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was

not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1.

The prosecution has not been able to explain this discrepancy and therefore, it renders the case of the prosecution doubtful.

(Emphasis added)

Once PW-Anil Kumar had stated that the case was got registered by him would give rise to an important situation, i.e. the compliance of the

sections 42,50,57 NDPS Act same has not been done on the ground that it was a chance recovery. So in the light of the statement of Anil Kumar,

a serious doubt. It is a matter of concern that the trial court had erroneously and in a perfunctory manner recorded the conviction, non application

of mind, mis-appreciation of evidence coupled with concoction of facts suggest that unwarranted conviction has been recorded, as a result whereof

twenty (20) years rigorous imprisonment has been awarded. It is the said position which has persuaded us to notice the details as well as precise

depositions of the prosecution witnesses who were examined.

The upshot is that the appeal is allowed. The judgment dated 28.04.2012 is set aside. Charge against the appellant (accused) has not been

proved, therefore acquitted, shall be released forthwith. The seized Charas shall be destroyed under the supervision of the Chief Judicial

Magistrate, Jammu.

Copy of the Judgment be sent to Trial Court along with Trial Court record. Copy be also sent to CJM, Jammu for compliance.