State Of J&K vs Sonu Kumar And Others

Puneet Gupta, J

The appellant-State seeks leave to file the present appeal against the judgment dated 23.03.2019, passed in File No. 20/Challan by the learned Principal Sessions Judge, Samba as the respondents have earned acquittal in the aforesaid challan.

The case of the prosecution before the trial court was that on 03.12.2010 at about 3.30 p.m, a police naka party led by PW-1 Joginder Singh PSI noticed the accused persons (respondents herein) alighting from a vehicle and trying to escape on seeing the police party. The occurrence is stated to have taken place on National Highway at Plan Morh. The accused were apprehended and on search, 400 capsules of Pyremol Spasam were recovered from the respondent No. 1 and 600 capsules of the same nature from the accused-respondent No. 2 herein. The F.I.R No. 288/2010 came to be registered for offence under Sections 8/21/22 NDPS Act with Police Station Samba after the docket was received, written by PW-1 Joginder Singh. The investigation was entrusted to PW-Sameer Singh ASI. On the completion of the investigation, the challan was presented against the accused-respondents herein under Section 8/21/22 NDPS Act.

The Court framed charges against the accused for the offences under Sections 8/21/22 NDPS Act. The accused in the challan did not plead guilty and claimed trial. The prosecution examined number of witnesses in support of its case. On the closure of the prosecution evidence, the statement of the accused under Section 342 Cr. PC was recorded. The accused did not opt to produce evidence in defence.

Learned trial Court while recording its findings of acquittal has dealt with section 42 NDPS Act and came to the conclusion that the non-observance of the provisions of Section is fatal for the prosecution. The trial Court has held that the recovery from the accused persons was a chance recovery and that there was no prior information about the same with the police. The trial Court has held that the police failed to comply with the requirement of Sections 42(1) and 42(2) as the information was not written down nor the copy of the same was sent to the superior officer prior to search and seizure by the concerned officer. The trial Court has specifically held that there is no evidence to suggest that the information regarding recovery of contraband drugs was given to the police officers. The Court has relied upon the observations of the Hon'ble Apex Court in case titled Karnail Singh Vs. State of Haryana 2009 (8) SCC 539 in support of its findings and this Court finds no reason not to concur with the findings given by the trial Court on the above aspect of the case.

The trial Court has also found the material discrepancies regarding the statements of the prosecution witnesses recorded during the course of trial. The trial Court has mentioned that PW-Vijay Kumar was an independent witness but has not been examined by the prosecution. The trial Court has also noted that PW-Balbir Singh has not deposed of the presence of PW-Vijay Kumar on spot. PW-Raj Kumar has not stated that the samples were taken and sealed on spot nor he speaks of the arrival of Dy. SP on spot. PW-Neelam Kumar has contradicted the prosecution story in material respect as he has deposed that Pyremol Spasam capsules were recovered from the accused Sonu and Paravon Spas capsules were recovered from the accused-Riki. The deposition of this witness is fatal for the prosecution as it is not the case of the prosecution that Paravon Spas capsules were recovered from the accused-Riki. The contradictions emanating from the witnesses who are police personnel is indeed intriguing and should not have happened in the present case. When the witnesses depose in a contradictory manner in material respects during the course of trial, then the trial Court has no option but to disbelieve the prosecution case and give benefit of doubt to the accused persons.

The trial Court has doubted the prosecution case and rightly so also on the ground that the proper and safe custody of the drugs seized was not proved by the prosecution in the case. The recovery of the contraband was affected on 03.12.2010 and the samples were also taken on the same day and the seized drugs brought to the Police Station, Samba. PW-Pawan Abrol, witness from FSL Jammu, has deposed that the samples were received at FSL Jammu on 21.12.2010. It means that the samples were received after 17 days of being lifted in the case. There is nothing on record as per the trial Court as to where these parcels remained during this crucial period. Neither the Moharer of the Police Station concerned has been cited to prove the deposit of the samples in the Police Station nor had copy of the concerned Register been placed on record to prove the deposit of the samples in the police station. Further, the Court has also found that there is nothing on record to make out as to when the parcels were taken out for reseal or again deposited and when they were taken out again for being deposited in FSL Jammu for purposes of examination. The samples were resealed on 14.12.2010 as per the Statement of PW-Satpal, who had resealed the packets and issued the certificate marked as EXTP-SP. The safe and proper custody of the samples during the whole process is of prime importance in a case of present nature, more so, when the severe punishment is prescribed for the offences if proved against the accused. The tampering of the samples cannot be ruled out is what is held by the trial Court. This Court finds no error in the conclusion reached by the trial Court in this regard.

The trial court has also noted the other flaws that have occurred in the prosecution evidence including the non observance of provisions of Section 55 and 57 of the Act. The requirement to fill up the CFSL Form on spot as required by law has not been followed by the investigating officer which impacts the prosecution case as per the trial Court. The non-observance of provisions of Section 55 and 57 of the Act may not be mandatory and fatal for the prosecution in all the cases. However, it does not mean that the said provisions can be totally ignored. The trial Court has cited Gurbax Singh Vs. State of Haryana 2001 (1) Supreme 625 to conclude that the aforesaid provisions though are directory in nature yet it cannot be said that the same are not bound to be complied with by the Investigating Officer or can be flouted with impunity. The intentional breach of the provisions of Section 55 and 57 causing prejudice to the accused is held by the trial Court. No fault is found in the findings of the trial court.

The trial court keeping in view the overall facts and circumstances of the case has given benefit of doubt to the accused and consequently acquitted them. We do not find that while acquitting the accused, the findings recorded by the trial Court are perverse or are not based on factual aspects of the case.

The application filed for leave to appeal is declined.

The application filed for condonation of delay in filing the appeal also stands dismissed.