State of J&K vs Bashir Ahmed

Shahzad Azeem, J

By virtue of this acquittal appeal, challenge is thrown to the judgment dated 29.01.2013 passed by learned Sessions Judge, Ramban [the trial Court], whereby the respondent-accused was acquitted of the charges under Section 8/20 NDPS Act.

The precise factual matrix of the prosecution case that is relevant for the adjudication of the instant appeal is that on 01.08.2009, an information was received at Police Station, Ramban that accused, Bashir Ahmed, a follower in police department will smuggle Cannabis and he will be travelling from Banihal towards Batote on a Motorcycle bearing registration No. JK02Q-1944 (Passion). This information led to the registration of a formal case being FIR No. 120/2009 under Section 8/20 NDPS Act and, accordingly, investigation was entrusted to PW-9, S.I Wasim Raja, who said to have laid Naka on NHW1-A, near New Muslim Hotel, Ramban and during Naka checking, the police party intercepted the accused, Bashir Ahmed and when he was given the option, the accused chose to be searched in the presence of the Dy. S.P (PW-1). During search, one pink coloured polythene bag containing Cannabis wrapped in maize husk, 1 kg 200 gms with the wraps and without wraps, found to be 1 kg 100 gms, alleged to have been recovered.

Accordingly, all the codal formalities were completed including seizure and sampling was got done in the presence of PW-1, Mushtaq Ahmed Sheikh (Dy.S.P).

It  is  also  relevant  to  note  that  the  packet  of  seized Cannabis was marked as ‘A’, whereas, the samples were marked as ‘B’ & ‘C’ and maize wraps were marked as ‘D’, respectively.

The prosecution has cited as many as 11 witnesses and all the witnesses have been examined during the trial including, PW-9, S.I Wasim Raja (I.O); PW-7, SGCT, Masoom Ali, who has conducted the search of accused in the presence of PW-1, Mushtaq Ahmed Sheikh (Dy.S.P); most importantly, PW-2 Raj Kumar Anand, he weighed the alleged seized contraband and PW-11 Rakesh Sharma, (Magistrate), he resealed the samples.

The trial Court while acquitting the accused had come to the conclusion that neither the I/O nor SHO concerned, have deposed that the prior information received regarding the alleged transportation of contraband had been reduced in writing and transmitted to the superior officers as per the mandatory requirement of Section 42 of NDPS Act. The trial Court has also observed that PW-10, Inspector Ajay Jamwal, went on to depose that he does not know about the mandate of Sections 50, 52, 55 and 57 of NDPS Act, therefore, the breach of these mandatory provisions of the NDPS Act is fatal for the prosecution case. The trial Court had also come to the conclusion that there is contradiction in regard to the recovery and also over the credibility of samples sent and received for chemical examination. Accordingly, on finding non-adherence to the mandatory provisions of NDPS Act and contradictions in respect of search, seizure and sampling, the trial Court has acquitted the accused.

The State has now preferred the appeal against the judgment of acquittal on the ground that the impugned judgment of the trial Court is contrary to law and has been passed in a mechanical manner, without proper appreciation of the circumstantial and other evidence available on record. The appeal has also been filed on the ground that the trial Court had ignored the statements of the witnesses and wrongly extended the benefit of doubt to the accused. According to the appellant, the accused willfully and intentionally committed the offence, and the trial Court failed to appreciate the prosecution evidence in its true and proper perspective.

On the other hand, learned counsel appearing for the respondent had argued in line with the reasoning given by the trial Court while passing the impugned judgment, therefore, same needs no reiteration.

The admitted case of the prosecution is that the formal registration of the case and subsequent recovery, search and seizure of the alleged contraband has taken place on the basis of prior information. When the respondent was intercepted while shuttling the alleged contraband and intercepted by the police party, he chose to be searched before Dy.S.P, i.e. PW-1 Mushtaq Ahmed Sheikh. Further, case of the prosecution is that the recovery, seizure, sealing and sampling was done before PW-1, Mushtaq Ahmed Sheikh (Dy.S.P).

Although the trial Court while acquitting the respondent had come to the conclusion that the mandatory provisions of NDPS Act have been observed in breach, however, in addition to the deficiencies pointed out by the trial Court, it is noteworthy that the mandate of Section 52-A NDPS Act, also had been observed in breach.

By now, it is well settled proposition of law that Section 52-A (2) (c) casts duty that upon seizure of the contraband, same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53, who shall prepare an inventory as stipulated in the said provision and

make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying the photographs of such drugs or substances taken before the Magistrate as true &(c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

However, in the case on hand, admittedly, samples had never been drawn in the presence of the Magistrate, rather it has come in the testimony of PW-11 Rakesh Sharma (Magistrate) that he had only resealed the packets and also further specifically deposed that he neither opened the packets nor did he come to know what was contained therein.

There is another important aspect of the matter that cannot be lost sight of that upon seizure, the alleged contraband was weighed by PW-2, Raj Kumar Anand, who in cross-examination categorically deposed that in his presence no sample weighing 50 grams was drawn, which according to the prosecution was sent for chemical examination, therefore, prosecution miserably failed to prove that as to who weighed the samples or the samples allegedly drawn were the same sent to FSL, therefore, this vital link evidence is missing which shakes the very core of the prosecution case.

Although, there are some other material contradictions like; it has come in the testimony of PW-3, ASI Ahmed Ullah Shan that the alleged contraband was recovered from the dickey of the motorcycle, however, to the contrary, PW-7, SGCT Masoom Ali deposed that it has been recovered from the possession of the accused, nonetheless as we have pointed out that mandatory requirement of sampling, sealing, resealing and identification of such samples in Court has been observed in breach, which is sufficient to corrode the very core of the prosecution, thus, we do not wish to go into other aspects of the case.

While adding to the point of violation of mandatory requirement of provisions of NDPS Act in the case on hand, we cannot afford to omit to make mention of the glaring non-compliance of Section 50 of NDPS Act as well, in that, it has come in the testimonies of prosecution witnesses that the search of the accused was conducted by PW-7, SGCT Masoom Ali, however, PW-7 when entered in the witness box, deposed in the cross-examination that he recovered the packet from the accused’s shirt and then it was taken to PW-1, Mushtaq Ahmed Sheikh, (Dy. S.P) and further deposed that seizure and sampling was done on the spot. However, immediately, he retracted from the statement and in sheer contradiction, went on to depose that these formalities were completed in the office of Dy.S.P, (PW-1).

Hon’ble Supreme Court in Yusuf @ Asif; 2023 SCC Online SC 1328. Paragraph No. 13 of the judgment is relevant which is reproduced thus:-

“13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.”

Hon’ble Supreme Court further went on to observe that in the absence of any material to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seizure contraband was duly certified by the Magistrate, in that event, the seized contraband and samples drawn therefrom would not be a valid piece of primary evidence in the trial and once, there is no primary evidence available, the trial as a whole stands vitiated

In view of the foregoing reasons and upon scrutiny of the evidence, we are of the view that the trial Court has rightly appreciated the evidence in its correct perspective, as the mandatory provisions of NDPS Act have been observed in breach, thus, no perversity, illegality or miscarried of justice is discernible in the impugned judgment.

Accordingly, the judgment of acquittal dated 29.01.2023 passed by the trial Court is upheld, resultantly, Appeal being devoid of merit is dismissed.