State of JandK vs Sukhvinder Singh and Others

Bansi Lal Bhat, J.â€"State is aggrieved of the judgment of acquittal of respondents (hereinafter referred to as ""accused"") recorded by learned

Principal Sessions Judge Ramban in case titled State v. Sukhwinder Singh and anr by virtue whereof the accused have been acquitted of charge

under Section 8/15 NDPS Act by according them benefit of doubt. Heard and considered.

Allegedly accused were smuggling two qtls and five kgs of poppy straw from Kashmir to Punjab in their vehicle No. HR 37-A/3570 which was

recovered by Banihal Police at Shafa Pani Banihal on 02.03.2010. The vehicle was intercepted by the patrolling party of Police while checking

traffic on National Highway. Since the accused pleaded not guilty to the charges framed against them under Section 8/15 NDPS Act and claimed

to be tried, prosecution made a bid to establish complicity of accused by adducing evidence at the trial, on consideration whereof the impugned

judgment of acquittal came to be formulated by the trial Court. It emanates from record that samples were claimed to have been drawn from two

packets of the recovered substance and sent for analysis to two different laboratories after being resealed before the Executive Magistrate.

However, neither SDPO Banihal in whose presence recovery of contra band is said to have been effected nor the Executive Magistrate who

conducted resealing have been cited as prosecution witnesses. Even the Incharge Malkhana in whose custody the recovered substance alongwith

samples is said to have been deposited, has not been cited as a witness. Malkhana register has not been produced before the Trial Court and the

relevant entries in regard to deposit and withdrawal of samples has not been proved at the trial. The two independent witnesses namely Rashid

Rasool and Fayaz Ahmed have not supported the recovery of contraband from possession of accused. The evidence brought on record is

deficient, inadequate and not satisfying the standard of legal proof required to prove a criminal charge. This is a case of defective investigation as

observed by the learned Sessions Judge. In absence of satisfactory and convincing evidence of recovery of the contraband from conscious

possession of accused and the fact that link evidence to prove that the samples examined at one of the two FSL(s) declaring the substance as a

narcotic did represent the substance recovered from accused is missing, we find no substantial and compelling reasons to differ with the

conclusions drawn on appreciation of evidence by learned Sessions Judge. There being no legal infirmity in the findings recorded by learned Trial

Court, this appeal is dismissed as being devoid of merit.