State of J&K vs Bupinder Singh

Bansi Lal Bhat, J.—This appeal is directed against the judgment of acquittal recorded by learned 2nd Additional Sessions Judge, Jammu on

06.09.2012 by virtue whereof respondents Bupinder Singh, Sukhdev Singh and Ravi Kumar (hereinafter referred to as ""accused"") have been

acquitted of charge under Sections 8/21/22 NDPS Act. The State has questioned the legality and correctness of the judgment of acquittal on the

grounds set forth in the memo of appeal.

Prosecution version is that on 13.02.2010, a Maruti Car bearing registration No. JK02AC-9699 was intercepted at Jeevan Nagar, Jammu, by

the Police Team while checking the vehicles. Accused Bupinder Singh was found driving the Maruti Car while other two accused were seated in

the Car. The checking conducted by the Police Party yielded a polythene bag lying under the driving seat. 15 boxes of Spasmo Proxyvon, each

containing six strips of 24 capsules were found in the polythene bag. The total number of capsules was found to be 2160. Accused Ravi Kumar

seated on the front seat was found in possession of polythene bag containing 11 boxes, each box containing six strips with each strip having 24

capsules, total 1584 capsules. Accused Sukhdev Singh sitting on the back seat was found in possession of polythene bag containing 14 boxes,

each having 6 strips and each strip containing 24 capsules, total 2016 proxyvon capsules. Thus, in all, capsules numbering 5760 were recovered

from the ""accused, Sub Inspector Bashir Ahmed wrote a docket and forwarded the same to Police Station Satwari, Jammu for registration of

case. Investigation conducted by SHO Police Station Satwari culminated in filing of charge sheet against the accused, who pleaded not guilty

before the Trial Court and claimed to be tried. Prosecution has adduced evidence to bring home guilt against the accused. Upon consideration of

the evidence adduced at the trial, learned Trial Court found that the prosecution evidence was full of contradictions and there was no corroboration

from independent witnesses. It accordingly, recorded the acquittal of accused.

Heard and gone through the record minutely.

It emanates from the record that, consequent upon forwarding of docket by SI Bashir Ahmed to Police Station Satwari, SHO went on spot,

prepared the seizure memo pertaining to recovery of proxyvon capsules. It appears that the recovery was affected by a patrolling team headed by

SI Bashir Ahmed. SHO seized the recovered material after taking two capsules from each bag as sample and seized the same. He prepared the

personal search and arrest memos of accused. The remaining stock of capsules too was sealed separately. It further appears that two prosecution

witnesses including SI Bashir Ahmed turned hostile at the trial. Testimony of SI Bashir Ahmed leaves no room for doubt that the docket forming

the basis of FIR was scribed by Munshi of Police Station, who was not present on spot. This conclusion is further strengthened by the fact that

recovery memo mentions the FIR number which could not have been allotted before registration of case while recovery was made by the Police

intercepting party before the docket was forwarded to Police Station for registration of FIR. PW-Vikram Kumar has resiled from the prosecution

version by maintaining that the accused were caught near Digiana Ashram. Prosecution evidence is not convincing on the material aspect of search

and recovery of alleged contraband. This apart, link evidence in the case is missing. Prosecution has failed to place on record contemporary

documentary evidence to demonstrate that seized packets of the samples and the remaining stock of alleged contraband were kept in Malkhana

before forwarding of samples to FSL for chemical examination. From the testimony of PW-Pawan Abrol, Assistant Scientific Officer, FSL Jammu,

it emerges that the samples were forwarded to FSL on 20.02.2010 and the same were found containing a Narcotic Analgesic identified as

Dextropropoxyphene napsylate. In absence of production of Malkhana register to prove the entry record of deposit and withdrawal of samples

from Malkhana and taking note of the fact that officer Incharge of Malkhana has not been examined at the trial to establish safe custody of the

representative samples from 13th of February 2010 to 20th of February 2010, it is a foregone conclusion that the link evidence to establish factum

of the samples examined at FSL being representative samples of the seized contraband, to hold that the seized substance was a Narcotic Drug, is

absent. Procedure laid down in terms of guidelines issued by the Narcotic Control Board for search, recovery, seizure of contraband and lifting of

samples and for safe custody till its delivery in FSL having been not adhered to, it is manifestly clear that a fair procedure has not been adopted in

the matter of search, recovery, seizure of contraband and absence of link evidence goes to the root of the case and vitiates the entire exercise of

search, recovery and seizure of alleged contraband.

Learned 2nd Additional Sessions Judge has recorded other cogent reasons as well which cause serious doubt on prosecution version.

However, in our considered opinion, the conclusion drawn by us hereinabove are sufficient to throw out the prosecution case. It is unfortunate that

the State Police has not imparted training to its Investigating Officers to acquire professional skill for handling sensitive matters in relation to search,

recovery and seizure of narcotic Drugs. The State has to accord priority to the subject and ensure that the guidelines issued by Narcotic Control

Board are strictly adhered to. The procedural safeguards cannot be diluted, given the stringent nature of provisions embodied in NDPS Act.

Observing of fair procedure is imperative for justifying a conviction under a law like NDPS Act.

In view of the aforementioned observations, we find no substantial or compelling reasons to disturb the findings recorded by the learned 2nd

Additional Sessions Judge. The appeal being devoid of merit, is hereby dismissed.