State of J. and K. vs Mohd. Akram Sulemani

Bansi Lal Bhat, J.—Respondent was tried for charge u/s 8/20 Narcotic Drugs and Psychotropic Substances, (NDPS) Act. The trial

conducted by learned 3rd Additional Sessions Judge (Special Judge), Jammu culminated in acquittal of respondent for failure of prosecution to

establish charges preferred against him. The State has questioned the judgment of acquittal through the medium of the acquittal appeal on hand.

According to prosecution case, on 10-1-2006 at 2.40 p.m. respondent was found carrying bedding on his shoulders at Jammu Railway Station.

When the bedding was put for X-ray, he started running towards platform. He was chased and apprehended. X-ray of the bedding revealed corn

cob-leaves in one polythene bag with Maize cob-leaves filled with Charas. Head Constable Rattan Lal, I/c VIP Gate, Railway Station, Jammu

prepared the docket and sent the same to Police Station R.P. Jammu which led to registration of case under First Information Report (FIR) No.

2/2006. Investigation was set in motion. Station House Officer (SHO) concerned visited the spot, prepared the site plan and seized Maize cob-

leaves containing the substance weighing 4 Kgs, 500 gms. Bed cover, blanket and a quilt were also seized. Sample was taken out form one leaf.

Packets were prepared, sealed and later got re-sealed by Magistrate before sending the sample for chemical examination. FSL report certifying

the contents of samples as Charas was obtained and statements of witnesses were recorded. The investigation culminated in filing of charge-sheet

against the respondent for offence punishable u/s 8/20 of NDPS Act. The trial ended in acquittal of respondent as stated earlier.

Heard the learned counsel and perused the record.

Besides finding contradictions on material particulars relating to search and seizure of recovered substance alleged to be Charas, the learned trial

Judge recorded acquittal of respondent being mainly influenced by the fact that the sample had been drawn from only one Maize cob-leaf justifying

the conclusion that the sample in question could not be treated as representing the substance found in all 151 maize cob-leaves. The representative

contents of one maize cob-leaf weighing 35 gms, even if found to be charas, does not substantiate the prosecution allegation that the respondent

was found in possession of commercial quantity of the alleged contraband. It has rightly been observed by the learned Trial Court that such

quantity, according to Schedule appended to NDPS Act, falls within the specification of small quantify, illicit possession whereof carries maximum

punishment of six months while the respondent has suffered incarceration for more than five years. Apart from this learned trial Judge found that the

prosecution evidence had unfolded two stories PW-Rattan Singh has neither spoken about registration of FIR based on his docket nor proved the

docket. He stated that Dy. S.P. and SHO were called on spot. It is P.W. Hardeep Singh-IO who deposed about the docket emanating from

Rattan Singh. Thus, the very basis of registration of case is shrouded in mystery. Learned trial Judge has also noticed discrepancy regard to

recovery and weighing of contraband by PW-Rattan Singh before arrival of Dy. S.P. and S.H.O. on spot. It is significant to notice that as per FIR

recovery had already been effected by P.W. Rattan Singh and even the contraband was weighed before arrival of Dy S.P. and S.H.O. on spot a

fact not supported by the other prosecution witnesses. Of the three independent witnesses two have declined to support the prosecution while

PW-Ashok Kumar has supported one of the versions emanating from Dy. S.P. and S.H.O. but running parallel to the version of P.W.-Rattan

Singh. Learned Session Judge has noticed material contradictions on the vital aspects of weighing of contraband, drawing up of seizure memo,

sealing of contraband and forwarding of sample to FSL. Such contradictions, more particularly relating to seizure memo are material and go to the

root of the exercise of search and seizure. Delay of four days in resealing of sample followed by further delay of two days in depositing the sample

with FSL coupled with non-proof of observing the safeguards regarding custody of representative sample during such period has been viewed by

trial Court with suspicion which was of the view that tampering of sample was not ruled out. On going through the record we find no compelling

and substantial reasons to differ with the view expressed by the learned trial Court on appreciation of evidence. This appeal is devoid of merit and

same is dismissed.