State Of J&K vs Jahangir Ahmad Dar

Tashi Rabstan, J

The instant application came to be filed on 29.08.2016 and notice was issued on 30.12.2016. However, till date none has put in appearance on

behalf of respondent, nor objections were filed. In these circumstances, we have no option but to condone the delay in filing the acquittal appeal.

Ordered accordingly.

For the reasons detailed in the application coupled with the submissions made at the Bar, the application is allowed permitting the appellant to file

the acquittal appeal.

With the consensus of learned counsel for the appellant, we have taken the appeal for final hearing. However, before starting the hearing, the file

was sent in the Registry for diarizing the Criminal Acquittal Appeal and it has been numbered as CrlA(AD) No.9/2021

This criminal acquittal appeal has been preferred against the judgment dated 31.10.2015 passed by learned Principal Sessions Judge (Special Judge)

Samba in the case titled “State vs. Jhangir Ahmed Dar†arising out of FIR No. 67/2014 registered by Police Station, Samba under Section 8/20 of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), wherein the accused is acquitted of the charges.

Case in brief of the prosecution is that on 26.04.2014, SPO Bachan Lal No. 302/S vide report No. 11 Roznamcha dated 25.04.2014 came in police

post Mansar stating therein that one ASI Krishan Lal along with other police personnel namely SgCt. Susheel Kumar No. 175/S, SgCt. Manohar Lal

No. 195/S; SPO Bachan Lal No. 302/S while deputed on naka point Mansar at about 05:45 a.m., stopped one truck bearing No. JK03B-4215 and

after checking, one plastic white colour bag was recovered underneath the seat of driver and on checking the plastic bag, 03 packets of Khakhi colour

were recovered inside which, Charas like substance in the form of balls were recovered. On this information, offences under Section 8/20 NDPS Act

was prima facie disclosed and on the receipt of the said docket, FIR was registered was registered against the accused under the aforesaid sections in

Police Station, Samba. From the recovered plastic bags, total 163 balls of charas were found, on weighing, which were found to be of total 9 kgs of

charas.

After the completion of investigation, the challan was presented before the trial Court on 10.06.2014. Charges against the accused for commission

offences under Section 08/20 of the NDPS Act were framed on 21.07.2014. The accused pleaded not guilty before the trial Court and claimed to be

tried. To bring home the guilt against the accused, 11 prosecution witnesses listed in the challan but only 8 witnesses were examined. On conclusion of

trial, the learned trial Court acquitted the accused of the aforesaid charges.

The ground taken by the appellant in the memo of appeal is that the learned trial Court has not only failed to appreciate the entire evidence including

the statements of prosecution witnesses in its true and proper perspective but has also not considered the record as well as the facts of the case in

their totality.

We have heard learned counsel for the appellant and carefully perused the material on record.

The most glaring omission which has come to the notice of this Court is that the CFSL form was not filled on spot by the investigating Officer. This

fact is substantiated by the deposition of prosecution witnesses PWs 1, 2, 3, 5, 6 & 10, namely, Sgct. Susheel Kumar No. 175/S, Sgct Manohar Lal

No. 195/S, SPO Bachan Lal No. 302/S, ASI Krishan Lal, HC Janak Raj No. 13/S and SI Nishant Gupta (Chowki Officer), who have made

categorical depositions before the trial Court that I.O. had not filled the CFSL form on spot and even PW-10 I.O. himself too has categorically

deposed that he did not fill any such form on spot. This fact creates a serious doubt about the recovery of contraband charas which diminishes the

veracity of the prosecution version.

The other important aspects which weakened the prosecution case are, non-examination of the independent witnesses, contradictory testimonies

of prosecution witnesses regarding flashing of signal for stopping the vehicle. PW Lekh Raj during his cross-examination has categorically made a

deposition to the fact that at the time of taking the photographs 10 to 12 people were present on spot. There is no explanation tendered by the

prosecution for not examining any of the independent eye witnesses.

There are serious contradictions regarding the flashing of signal for stopping the vehicle. PW-1 Susheel Kumar has deposed that PW-5 ASI

Krishan Lal signaled the vehicle containing contraband charas, which is contradicted by the evidence of PW-2 Manohar Lal who testified that ASI

Krishan Lal asked SPO Bachan Lal to stop the vehicle. PW-3 Bachan Lal SPO further contradicted both the testimonies of PW-1 and PW-2 by

deposing that he stopped the vehicle and ASI did not signaled the vehicle to stop. PW-5 ASI Krishan Lal further contradicted the testimonies of PWs

1, 2 & 3 by deposing that it is incorrect that the vehicle was stopped by PW-3 but he and others signaled the vehicle to stop. It is, thus, apparent from

the above that the eye witnesses PWs 1, 2, 3 & 5 gave a totally inconsistent and distorted versions of stoppage of truck containing the contraband

which shakes the very foundation of prosecution case as none of the eye witnesses are certain as to who signaled the truck to stop and who actually

stopped it.

It cannot be disputed that preparation of documents, seizure of the contraband is an event on which the entire case of the prosecution depends in a

case under NDPS Act. There are grave contradictions about the preparation of documents/ memos on spot. Regarding this, four prosecution

witnesses deposed and gave contradictory versions. PWs-1 and 2 stated that Chowki Officer prepared all the documents on spot viz; seizure memo of

charas, seizure memo of truck, seizure memo of charas with bag, personal search memo, but PW-5 Krishan Lal ASI, Naka Incharge at that time put

forth highly contradictory version by stating that seizure memos of charas, seizure memo of seizure memos, superdnama of ring all are under his hand

writing and he recorded the statements of all the prosecution witnesses besides recording his own statement. Further, PW-10 Nishant Gupta SI

contradicted the version of PW-5 by deposing that the site plan, seizure of charas, seizure memo of seizure memos, superdnama memo of ring are all

under his hand writing and he also recorded the statements. From these depositions it is clear that all of them had given unclear versions as to who

prepared the documents.

There is again a hazy story regarding the timing of photography as PWs 1 and 5 contradicted the testimony of PW-2. PWs 1 and 5 categorically

deposed that the photography of the truck was conducted between 6:00 am to 6:30 am which is contrary to 12 O’clock as deposed by PW-2.

There is also an unclear picture as to who conducted the investigation of the case because PW-10 Nishant Gupta claimed that he conducted the

investigation. If it was so, then how could PW-5 an eye witness of the case and member of the Naka party, conduct the investigation of the case,

because it was he who deposed that the seizure memos of charas, seizure of seizure memos, superdnama of ring are all under his handwriting and he

recorded the statements of all the prosecution witnesses.

It is noteworthy that FSL expert was not examined as a prosecution witness which further benefitted the accused. It is also manifest that the

prosecution has not produced the remaining part of the contraband articles which was sent to the FSL. This again creates a serious doubt whether the

seized samples were the same as seized on the date when samples were taken. .

In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, the Supreme Court"" said that ""While sitting in judgment over an acquittal the

appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or

demonstrably unsustainable. If the appellate court answers the above question in the negative, the order of acquittal is not to be disturbed.â€​

It is also to be noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained

under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of

law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder.

In this connection, it would be appropriate to refer to the observations made by the Hon’ble Supreme Court in the case of Bharatbhai

Bhagwanjibhai v. State of Gujarat 2003CriLJ65. In para 1 of the said judgment, the Hon’ble Supreme Court has observed as under:

“The statement of objects and reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit

drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the

legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the

situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of

legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the

most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict

compliance of the safeguards provided under the statute so as to be in tune therewith.â€​

In view of the stringent penal provisions of NDPS Act and harsh punishments provided thereunder and in view of the observations made by the

Hon’ble Supreme Court in the above referred judgment. We are of the opinion that in present case the police failed to comply to the provisions of

NDPS Act, furthermore, having so many contradictory versions in prosecution case entitles the accused to be acquitted.

Therefore, in light of the discussion made hereinabove, on careful scrutiny and re-appreciation of the evidence and the submissions made by the

learned Advocate for appellant, we are of the view that the judgement and order recording acquittal by the learned Principal Sessions Judge (Special

Judge), Samba is just and proper and it does not call for any interference in the present appeal. It is not a case in which the judgment may be said to

be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation.

For the foregoing reasons, we do not find any substance in the appeal. The acquittal of the accused by the learned trial court is well merited. The

appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed.