Bhat and Others vs State of J&K

Mohammad Yaqoob Mir, J.—Appellants have been convicted for having committed offence punishable under Section 8/20 of NDPS Act,

sentenced to 20 years rigorous imprisonment and fine of Rs. 2.00 lacs each by the trial court vide its judgment dated 16.03.2013, which is

impugned in this appeal. Case of the prosecution, as is unfolded on perusal of the records is that, on 23.04.2009 during routine traffic checking one

Tata Sumo vehicle bearing registration No. JK-01L-3508, on its way from Srinagar to Jammu, was stopped; its middle seat was occupied by

accused Ghulam Mohd. Bhat and Feroz Ahmad, who had kept a bag (Toda) beneath their seat. They prevaricated checking of the bag which

gave rise to suspicion. On checking, four packets were recovered smelling 'charas'(cannabis). On opening the packets, approximately 8 kg 'charas'

were found, which was being carried by the accused for illegal trade to Mumbai. Report (docket) was prepared and sent to the police station

through Constable Abdul Qayoom for registration of the case, based on which case has been registered as FIR No. 24/2009, Police Station,

Batote, District Ramban. Investigation of the case culminated in filing of challan (charge-sheet) on 25.07.2009.

Charge against the accused has been framed on 20.01.2010 for commission of offence under Section 8/20 of NDPS Act. Prosecution in support

of its case, out of the listed 12 witnesses, has produced only 7 witnesses i.e., PW - 2, 4, 6, 8, 9, 10 & 11. Accused have been examined in terms

of Section 342 Code of Criminal Procedure, they have denied complicity in the crime and claimed to be innocent. No witness has been produced

in defence.

Learned counsel for the appellants projected that:-

i) the evidence as produced by the prosecution is inconsistent, contradictory and full of doubts;

ii) the recovery of narcotic substance from the possession of the accused is not proved;

iii) neither two independent witnesses and Investigating Officer have been produced nor any explanation for non-production has been tendered

which gives rise to drawing of adverse inference;

iv) the samples of narcotic substance, as alleged to have been recovered on 23.04.2009, is shown to have been sent to FSL on 26.04.2009 which

has been received by the FSL on 27.04.2009. No evidence has been produced so as to explain as to where the samples drawn had remained for

3 days;

v) Section 42 and 50 of NDPS Act has not been complied with;

vi) the recovered contraband was not produced in the court during the trial.

vii) the safeguards available have been infringed.

Learned counsel appearing for the respondents projected that the offence committed by the accused is proved beyond doubt. Accused have

indulged in criminal activities which are anti-social and destroys social fiber. Such type of crime does not deserve any leniency. Trivial

contradictions or inconsistencies are to be overlooked. The recovery was a chance recovery, furthermore, it was not affected from the person of

the accused, therefore, there was no requirement to comply with the provisions of Section 42 and 50 of NDPS Act.

We have bestowed but thoughtful consideration and have meticulously gone through the records of the case. Why only 7 out of 12 listed

witnesses have been produced, has not been explained by the prosecution. It is trite that it is quality not quantity of evidence which matters, but

non-production more particularly of independent witnesses gives rise to drawing of adverse inference permissible under Section 114(g) of the

Evidence Act. It shall be proper first to ascertain as to whether on the strength of the statement of witnesses, as produced, case against the

accused is proved or not.

Out of the listed 1 to 3 independent witnesses namely, Bashir Ahmad Bhat, Mulkh Raj and Assadullah Bhat, only Mulkh Raj has been

produced, rest two have not been produced for unknown reasons.

Mulkh Raj (PW-2) was posted as Forest Guard at the Forest Check Post located adjacent to the place of occurrence. He has stated that the

Sumo vehicle bearing registration No. JKO1L-3508 was stopped during naka checking by the police, which was on its way from Srinagar to

Jammu. In the middle 2 passengers were seated who were carrying a Toda (bag), further stated that these 2 passengers during the checking stated

that the bag is not required to be checked as it contains walnuts for their friend but on its checking 4 packets were recovered by the police smelling

'charas'. Naib Tehsildar was called, said 4 packets were weighed which contained 8 kg of 'charas' but on cross examination said prosecution

witness has stated that he was checking a truck at that time and in the meantime he was informed by the police that something has been recovered

from the Sumo vehicle; thereafter he came on spot and found the Toda (bag) lying outside the Sumo.

a) PW-4 Rajinder Kumar (SPO) has been declared hostile but in the cross examination has stated that the bag was recovered from the dickey of

the Sumo and the accused were also sitting in the dickey.

b) PW-8 Constable Abdul Qayoom, has stated that beneath the middle seat of the Sumo vehicle a bag was lying. Passengers were asked to

whom it belongs, accused Ghulam Mohd. Bhat stated that it belongs to him and it contains walnuts. SHO asked the accused Ghulam Mohd. Bhat

to bring down the bag and get it checked. On checking, 4 packets of 'charas' (cannabis) were recovered.

c) PW-9 Sg. Ct. Reyaz Ahmad has stated that the SHO checked the bag but then in cross-examination has qualified that he did not know who

took out the bag from the Sumo for checking.

d) PW-6 Kunj Lal (SPO) has stated that in the Sumo vehicle 2 passengers were sitting on the front seat and 2 in the middle seat. Accused were

sitting in the middle seat. It is the only SHO who talked to them.

According to PW-2 Mulk Raj in the vehicle 7-8 passengers were on board, all had luggage. In the middle seat 4 passengers were sitting.

a) PW-4 Rajinder Kumar has stated that the vehicle was stopped in which accused were sitting.

b) PW-8 Ct. Abdul Qayoom has stated that 2 passengers were sitting with the driver and 2 were sitting in the middle seat of the Sumo.

Again according to PW-2 Mulkh Raj at the time of checking, SHO was accompanied by 10-15 police personnel, when according to other

witnesses he was accompanied by 4-5 police personnel. He has further stated that the Naib Tehsildar came on spot before the narcotic substance

was weighed, whereas PW-11 Abdul Rashid Rather (retired Naib Tehsildar) has not stated anything of his being present on spot. He has only

stated that at the request of SHO, 4 packets were received for being sent to FSL and the police had come to him during office hours.

According to PW-8 Abdul Qayoom the bag was taken out from the vehicle by Nasir Hussain, Reader of SHO. Same was opened by PW-6

Kunj Lal and Nasir Hussain, whereas same witness in his examination in chief has stated that the SHO asked the accused Ghulam Mohd. Bhat to

bring down the bag for checking.

According to PW-6 Kunj Lal (SPO) no police personnel went inside the vehicle, however, luggage was brought down from the vehicle.

Further according to him the sample was drawn by the clerk of Naib Tehsildar and was weighed by Nasir Hussain, Reader of SHO.

According to PW-9 Sg. Ct. Reyaz Ahmad, he has no knowledge as to who brought down the bag for checking nor has he any knowledge as to

who had drawn the sample. According to PW-6 Kunj Lal sample was drawn in the police station.

According to PW-2 Mulkh Raj, entire proceedings were completed on spot within 45 minutes, whereas according to PW-9 Reyaz Ahmad

entire proceedings were completed in police station.

According to PW-8 Abdul Qayoom, it is the accused Ghulam Mohd. Bhat who on asking of SHO said that the bag belongs to him. No other

witness has said so. It is the said Abdul Qayoom who has also stated that the Naib Tehsildar had come on spot.

From the statement of the witnesses examined, the above referred contradictions and inconsistencies, demolish the edifice of the prosecution

case. Learned trial court has not appreciated such grave inconsistencies and contradictions.

Provisions of NDPS Act are stringent in operation; object has to be achieved i.e., to save the society from the ill effects of narcotic drugs; once

offence is proved there is no scope for leniency.

In-keeping with solemn object of Article 21 of the Constitution of India, fairness of trial, the appreciation of evidence, has to be on the basis of

available material and the depositions of witnesses.

In such cases burden of proof beyond doubt is more onerous. It has to be ensured that the object of NDPS Act is advanced but at the same time

human right and dignity has to be protected. While balancing the two, more care and caution is required leaving no scope for getting swayed in

either way.

(a) Reference to the depositions of the prosecution witnesses produced would reveal that the appreciation of evidence by trial court is

inconsistent and improper. PW-2 Mulkh Raj in the examination in chief has exaggerated the facts which suggest that either he was not present on

spot or has made statement casually. In the examination in chief he has stated that in the middle seat 2 passengers were sitting in the Sumo vehicle,

whereas in the cross examination he has stated that 4 passengers were sitting in the middle seat and that 7-8 passengers were on board in the

vehicle, which position is known to him only. No other witness has said so.

(b) His deposition gets further exposed when in the cross examination he has qualified that when the police was checking the Sumo, at that time he

was checking the truck then he was informed by the police that something has been recovered from the Sumo vehicle; thereafter when he reached

near the Sumo he found the bag (Toda) lying outside the vehicle.

(c) His deposition is self-contradictory and furthermore is contradicted by other witnesses, who have said that 2 passengers were sitting in the front

seat and 2 in the middle seat of the Sumo vehicle. It would suggest that Mulkh Raj an independent witnesses in fact has not seen personally as to

who was sitting in the middle seat and to whom the bag belonged.

PW-4 Rajinder Kumar (SPO) though declared hostile but even in cross examination nothing favorable to the prosecution has been elicited

instead he has stated that the bag had been recovered from the dickey of the vehicle and the accused were also sitting in the dickey. This position

is only known to him. No other witness has stated so.

a) PW-8 Abdul Qayoom has stated that the bag has been taken out from the vehicle by Nasir Hussain, Reader of SHO and it is he who had

checked the bag. This position also is known to him only. No other witness has said so.

b) PW-6 Kunj Lal (SPO) has stated that the luggage was brought down from the vehicle but did not say anything about the possession of the bag

to be of the accused.

c) PW-9 Reyaz Ahmad has stated that the accused Ghulam Mohd. Bhat avoided search of the bag which position is known to him only. No other

witness has said so except that PW-8 Abdul Qayoom who stated that the SHO had asked accused Ghulam Mohd. Bhat to bring down the bag

for checking.

PW-2 Mulkh Raj has stated that Naib Tehsildar came on spot, PW-8 Abdul Qayoom also said so, but PW-11 Abdul Rashid Rather (Naib

Tehsildar) has not said anything about his presence on spot.

Now who is to be believed? All such inconsistencies and contradictions could be explained by the Investigating Officer, who has not appeared

as witness. Non-examination of Investigating Officer as witness is not always fatal but in the afore-stated circumstances is totally fatal because it

was for him to clarify the afore-stated inconsistencies and contradictions. Under such circumstances, withholding of the independent witnesses i.e.,

listed witnesses 1 and 3 also gives rise to drawing of adverse inference in terms of Section 114(g) of the Evidence Act.

Learned trial court while referring to Section 35 & 54 of NDPS Act, has opined that once accused were in possession of bag and claimed that

the same belonged to them, they were to disprove the possession as the onus shifted but the opinion is absurd because possession of bag with the

accused has not been proved beyond doubt. There are contradictory statements of witnesses about the bag, as noticed hereinabove. If the

statement of PW-9 Reyaz Ahmad is taken correct that accused Ghulam Mohd. Bhat claimed the bag. If statement of PW-8 Abdul Qayoom, to

the same extent is accepted, then again what about accused No. 2 how he has been roped in. This position has escaped the attention of learned

trial court. If according to PW-8 Abdul Qayoom, Nasir Hussain, Reader of SHO, has brought down the bag and opened it for checking then why

he has not been produced as witness so to support the actual position of the occurrence.

Another important aspect of the case is that the sample was drawn on 23.04.2009 and sent to FSL vide letter dated 26.04.2009 and received

by FSL on 27.04.2009, where the samples were kept for the intervening period, is not forthcoming, same castes serious doubts about the

genuineness of the sample. It has not appeared in the evidence, as produced, as to whether the samples were kept in malkhana or somewhere else,

even malkhana register has not been produced. No explanation has been tendered by any of the witnesses. In this connection Para-101 of the

judgment rendered by Hon'ble Apex Court in case Noor Aga Vs. State of Punjab and Another, is relevant to be quoted.

Several other lacunae in the prosecution case had been brought to our notice. The samples had been kept at the airport for a period of three

days. They were not deposited at the malkhana. It was obligatory on the part of the Customs Department to keep the same in safe custody. Why

such precautions were not taken is beyond anybody's comprehension.

When narcotic substance was recovered; sample was drawn and sealed, why same has not been produced in the court which seriously affects

its sanctity. The recovered material also has not been produced in the court during the trial which also castes serious doubts. In this connection

Para-100 of the judgment rendered in Noor Aga's case is relevant to be quoted.

Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof

would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of

discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts

are created with respect to the prosecution's endeavour to prove the fact of possession of contraband by the appellant. This aspect of the matter

has been considered by this Court in Jitendra v. State of M.P. in the following terms: (SCC p. 565, para 6)

In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from

the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and

marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of

panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent

sentence as under the NDPS Act.

Some witnesses have stated that the entire proceedings were completed on spot but some stated that same was conducted in the police

station. Who had weighed the recovery material, has not been produced as witness. If the clerk of Naib Tehsildar had drawn the sample then why

he has not been produced as witness? Learned trial court has not appreciated the evidence properly. Drawing presumption under Section 35 & 54

of NDPS Act is not permissible as the possession of the bag with the accused was not established beyond doubt.

Learned trial court has precisely noticed the testimony of the 7 witnesses but has not appreciated the same instead has in a routine manner

made observation that the prosecution has proved the case and non-examination of other witnesses of the prosecution is not fatal. Further has

wrongly observed that inasmuch as the defense has failed to project any contradiction much less any material contradiction or discrepancy which

may require explanation by the Investigating Officer, therefore, in absence of any material contradiction or discrepancy the non-examination of the

Investigating Officer is not fatal for the prosecution case.

Inconsistencies and contradictions, as noticed above, amply demonstrate that same has escaped attention of the trial court. Learned trial court

has wrongly observed that the possession was established, therefore, provisions of Section 54 & 35 of NDPS Act apply but as noticed

hereinabove, the possession of the contraband with the accused has not been established beyond doubt same in view of the statement of the

witnesses is in the region of suspicion. When possession is not established, there is no question of applying provisions of Section 54 & 35 of the

Act.

Learned trial court has convicted the accused and sentenced them to the maximum punishment of 20 years rigorous imprisonment. It shall be

relevant to quote Para 56 & 113 of Noor Aga's case:

The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened

standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to

the court to impose fine of more than maximum punishment of Rs. 2,00,000 as also the presumption of guilt emerging from possession of narcotic

drugs and psychotropic substances, the extent of burden to prove the foundational facts on the prosecution i.e., ""proof beyond all reasonable

doubt"" would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court

must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also

necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon

scrupulous compliance with the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the

concept of ""wider civilization"". The court must always remind itself that it is a well-settled principle of criminal jurisprudence that more serious the

offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab v.

Baldev Singh it was stated: (SCC P. 199, para 28)

It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are

scrupulously followed.

Justness and fairness of a trial is also implicit in Article 21 of the Constitution. A fair trial is again a human right. Every action of the authorities

under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. The courts, in order

to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of

evidence must be done strictly in accordance with the well-known legal principles governing the same; where for the provisions of the Code of

Criminal Procedure and the Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on

the basis of some reports which have nothing to do with the occurrence in question.

Contention of learned counsel for the appellants that provisions of Section 42 & 50 have not been followed, pales into insignificance because

Section 42 is to be followed when there is a prior information that an offence punishable under the Act is being committed only then the officer has

to take down the information in writing then has to send copy of the same to his immediate official superior. In the case in hand it was during

routine checking the bag was spotted containing 'charas'. Provisions of Section-50 of NDPS Act would not apply. In this view I am fortified by the

judgment reported in Ram Swaroop Vs. State (Govt. NCT) of Delhi,

On the bird's eye view the testimony of witnesses, as reproduced by the learned trial court in its judgment, is clear that the learned trial court

has overlooked the same and the principle of appreciation of evidence has been a causality. Approach has to be very tough against the criminals

who deal in narcotics which have disastrous affect on the society but in the process rule of law shall not to be causality. Administration of justice

has to be in accordance with law.

It is a matter of concern that the prosecution has been very loath in producing the witnesses before the trial court. Perusal of the trial court

records presents a disturbed situation, which is demonstrated by the following facts.

(a) Charge against the accused on 20.01.2010. From 11.02.2010 to 27.01.2011, on 17 dates of hearing, no prosecution witness has been

produced. Then on next date i.e., 19.02.2011, PW-2 Mulkh Raj has been produced for examination. Again from 10.03.2011 to 24.11.2011, on

14 dates of hearing, no prosecution witness has been produced. Then from 14.01.2012 to 04.04.2012, from 12.05.2012 to 24.08.2012 and from

11.10.2012 to 22.12.2012, no prosecution witness has been produced. Why such type of slackness on the part of prosecution that too in a

serious case like NDPS case. Prosecution is required to be geared up so as to ensure production of witnesses and to keep them in attendance.

Perusal of trial court records further reveals that on 22.12.2012 prosecution witness has been closed and the case was posted for arguments

under Section 273 Cr.P.C. Then on 14.01.2013 it is recorded that arguments in terms of Section 273 Cr.P.C. were heard. Statement of accused

under Section 342 Cr.P.C. has been recorded and then case was posted for defense evidence. It becomes necessary to make it clear as to what

procedure at such a stage is to be followed.

Chapter XXIII of Code of Criminal Procedure, governs Sessions trial. When the prosecution evidence is closed thereafter accused are to be

examined in terms of Section 342 Cr.P.C., i.e., incriminatory circumstances are to be put to the accused for their explanation after that the

arguments are to be heard in terms of Section 273 Cr.P.C., so as to ascertain as to whether there is any evidence or there is no evidence. In case

there is no evidence, accused are to be acquitted but in case court holds that it is the case of evidence then in that eventuality court has to ask the

accused to enter upon the defense and put in the written statement. This procedure has not been adopted, which may have no affect on the merits

of case but when a particular procedure is prescribed to be followed in a particular mode and method, same shall be complied with in its letter and

spirit.

In the totality of the facts, circumstances, law and the discussions, as made hereinabove, it can be safely concluded that the prosecution has

failed to prove the case beyond doubt. Appeal succeeds. The conviction recorded by the learned trial court and the sentence awarded is not in

consonance with law so is set aside. Accused acquitted, who shall be released forthwith, if not required otherwise. The recovered material shall be

destroyed. Trial court record along-with copy of this judgment be sent to the trial court.