State vs Sewa Ram

This appeal is directed against judgment dated 29.06.2013 rendered by learned Special Judge (Sessions Judge) Kathua in file No. 39

Special Challan titled State v. Sewa Ram alias Surti Kumar by virtue whereof the respondent has been acquitted of offences under Section

8/21 NDPS Act. The impugned judgment has been assailed on the ground that the trial Court has mis-appreciated the law and evidence on record

and has not appreciated the statements of prosecution witnesses in their totality resulting in failure of justice.

Allegedly on 02.11.2007 at about 2.00 PM, a police patrol party of police station Lakhanpur noticed the respondent at Nai Basti Lakhanpur

holding a black polythene bag in his hand. Since the respondent tried to run away, he was chased and apprehended. Search of the polythene bag

yielded 2000 capsules marked 'PARAVON SPAS'. Same were seized. Case under FIR No. 63/2007 came to be registered at Police Station

Lakhanpur on the basis of a written docket forwarded by Pritam Singh Head Constable. Investigation was embarked upon. A Sample of 20

capsules out of seized contraband was taken out and sealed for chemical analysis at FSL. The seal was kept on Supurdnama of Constable Jitender

Singh. Investigation culminated in filing of charge-sheet under Section 8/21 NDPS Act against the respondent who pleaded not guilty to charge

under Section 8/21 NDPS Act and claimed to be tried. Prosecution adduced evidence at the trial, on consideration whereof the trial Court

acquitted the respondent on the ground that the prosecution had failed to connect the respondent with the crime he had been charged with.

Aggrieved of such acquittal of respondent, the State has filed the instant appeal assailing the impugned judgment as aforesaid.

Heard. Also perused record of trial Court.

After going through the record of trial Court and examining the impugned judgment, we find no reason to disagree with the conclusion drawn by

trial Court on marshalling of prosecution evidence that the link evidence is incomplete in the instant case. In absence of explanation regarding

custody of sample from 3rd to 5th November, 2007 and there being no documentary proof in respect of such sample being deposited in Malkhana

after sealing till its dispatch to FSL, it is difficult to hold that the sample subjected to chemical analysis at FSL and opined to contain a narcotic

analgesic identified as Dextropropoxyphene Hydrochloride represented the seized consignment of capsules allegedly recovered from the

respondent. Withholding of the contemporary record in the form of Malkhana register justifies drawing of adverse inference against prosecution

besides adversely impacting fairness of investigation. Learned Sessions Judge has meticulously analysed the prosecution evidence and found the

vital documentary evidence regarding deposit and handling of the seized consignment of capsules and the sample missing. The trial Court noticed

that neither the communication of SSP regarding dispatch of sample to FSL had been placed on record nor had any evidence been led to establish

the factum of such dispatch. In absence of examination of SSP and the carrier of sample to FSL as witnesses, the vital link evidence was lacking.

Thus complicity of respondent could not said to have been established by any legal evidence. The circumstances indicated by the trial Court

cumulatively justified acquittal of respondent. We are of the considered Opinion that no contrary view is possible on evidence adduced before the

trial Court. Prosecution has failed to establish complicity of respondent as the link evidence is missing and there is nothing on record to hold that

the sample subjected to chemical analysis at FSL was the representative sample of the seized consignment of capsules recovered from respondent.

We find no substantial and compelling reasons to take a contrary view. The finding recorded by trial Court cannot be termed erroneous, much less

perverse.

There being no merit in the appeal, the same is dismissed. As a corollary thereof, leave is declined. Respondent produced in custody be sent

back to District Jail Pathankot, Punjab with direction to be set at liberty forthwith unless required in some other case. Registrar Judicial to convey

this order to Superintendent District Jail Pathankot.

Disposed of. Record be remitted back to trial Court.