State of JandK vs Kamal Singh

Bansi Lal Bhat, J.â€"Aggrieved of the impugned judgment dated 28.06.2013 formulated by learned principal Sessions Judge, Ramban by virtue

whereof the respondent Kamal Singh (hereinafter referred to as the 'accused') stands acquitted of offence under Sessions 8/15 Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), the State has filed the instant acquittal appeal assailing the impugned

judgment on the ground that the learned Trial Court has failed to appreciate the prosecution evidence in its correct perspective and there was

sufficient evidence on record to hold the accused guilty of alleged offence. Prosecution case is that on 16.03.2009, Police Party led by Inspector

Sajad Ahmad Mir SHO Police Station Banihal, while patrolling the Sherbibi area for traffic checking, intercepted Truck No. PB08/3484 coming

from Srinagar plied by the accused and on being searched Narcotic Poppy kept in polythene packets was found in the tool box below the driver

seat. The Executive Magistrate Banihal was requested telephonically to reach the spot and that in presence of Magistrate 48 white coloured

polythene bags containing Narcotic Poppy were recovered from the toolbox of the vehicle. The Poppy weighed 01 quintal and 22 Kg. Three bags

respectively weighing 01 quintal 21.300 Kg, 500 grams and 200 grams were prepared and sealed on spot. On the basis of a docket forwarded by

SHO to Police Station Banihal, case under FIR No. 50/2009 came to be registered alleging commission of offence u/s.8/15 NDPS Act. The

investigation culminated in filing of charge sheet against the accused who pleaded not guilty before the Trial Court. Prosecution adduced evidence

to establish complicity of accused in the alleged crime. On consideration of evidence brought on record by prosecution, the Trial Court acquitted

the accused.

Heard Mr. Basotra, learned Sr. AAG and perused the record.

Though SHO claimed that he had no prior information about illegal possession of Narcotics in the aforesaid vehicle, PW- Mohd. Ashraf Sgct

stated that SHO had prior information of smuggling of Narcotic in the vehicle. Admittedly, such prior information has not been reduced into writing

and conveyed to the Superior Officer as mandated under Section 42(1) of NDPS Act. The provision being mandatory in nature, breach thereof

vitiates entire exercise of search, recovery and seizure of alleged contraband. This apart, there is contradiction in regard to number of packets

containing the contraband that were allegedly recovered from the search of the vehicle. While the SHO and some members of the team claimed to

have recovered 48 packets, PW- Shakeel Ahmad SPO claimed that 70 to 80 packets of Poppy had been recovered from the vehicle. Anchal

Singh through whom the samples were received at FSL has neither been cited nor examined as witness at the trial. Testimony of SHO reveals that

the samples were drawn out of the seized substance on 16.03.2009. According to PW-Jatinder Misra Executive Magistrate Banihal, 04 sealed

packets came to be produced before him for resealing and the sample weighing 500 gram was sent to FSL. It is intriguing that while according to

testimony of SHO Sajad Ahmed Mir only 03 packets were prepared from the seized substance weighing 01 quintal and 22Kg, 04 packets came

to be produced before the Executive Magistrate for resealing. Wherefrom the fourth packet came has not been explained. It is also strange that the

same Magistrate claimed to has been present at Sherbibi when the seizure memo was prepared. Once the seizure memo was prepared in his

presence and attested by him, how could the same Magistrate be approached for resealing of the seized substance. Though SHO claims to have

searched the vehicle in presence of Magistrate and recovered 48 packets of Poppy from the toolbox, Magistrate has not deposed about the option

given to accused for conducting search in presence of a Magistrate as claimed by SHO. It further appears that while the samples were drawn from

the seized substance on 16.03.2009, same were received in FSL on 24.03.2009 i.e. after a delay of 08 days which has not been explained. On

cumulative consideration of evidence brought on record by prosecution it emerges that the guidelines issued by Narcotic Control Bureau (NCB) in

conducting search, affecting recovery and making seizure of contraband have been flagrantly violated and a fair procedure has not been adopted

during investigation. It has already been observed that the statutory safeguards engrafted in Section 42 of NDPS Act have not been observed in

compliance. In absence of evidence to establish that the samples were kept in safe custody after same were sealed on spot coupled with failure of

prosecution to explain eight days delay in submitting the samples to FSL, it cannot be held that the samples examined at FSL revealing presence of

Morphine in the substance represented the recovered substance.

In the circumstances indicated hereinabove link evidence is found woefully lacking. In our considered opinion the evidence brought on record by

prosecution cannot be accepted as legal proof for establishing nexus of accused with the commission of offence. There being no substantial and

compelling reasons to take a view contrary to the one taken on appreciation of evidence by the Trial Court, the exercise of summoning the

accused, whose fresh particulars have not been furnished, is abandoned. The appeal is, accordingly, dismissed as being devoid of merit.