Union Territory Of J&K vs Darshan Parara

Puneet Gupta, J

The application has been filed seeking leave to appeal against the judgment dated 23.07.2019 passed by the learned Principal Sessions Judge, Jammu in case No. 08/Spl. Challan whereby the respondent stands acquitted in the aforesaid challan.

F.I.R No. 225/2013 came to be registered with police station, Bahu Fort on 24.10.2013 for offence under Section 8/15 NDPS Act on the receipt of docket EXTP-2, forwarded by PSI Pawan Kumar Dogra of Police Post, Narwal Bala, Jammu. As per the report, a truck bearing No. JK02AP-5569 was stopped at the nakka point outside fruit mandi and was checked and during the checking of the truck three boxes of cardboard containing 25 kg of Poppy straw was recovered from the cabin of the truck. The accused had purchased the contraband and was smuggling the same towards Jammu. The investigation took place on the registration of the F.I.R and on the completion of the same, the challan was presented for the aforesaid offences. The charge was framed against the accused under Sections 8/15 NDPS Act to which the accused pleaded not guilty and opted for trial. The prosecution examined number of witnesses in support of its case. On the completion of the prosecution evidence, the statement of the accused was recorded under Section 342 Cr. P.C who denied the incriminating circumstances appearing in the prosecution case.

The trial Court though has not discussed the statements of the prosecution witnesses in detail but has otherwise discussed the material aspects of the case which proved fatal for the prosecution. The material was seized on 24.10.2013 and received by FSL on 01.11.2013 after it was got resealed by the Executive Magistrate on 29.10.2013. It was necessary for the investigating officer to keep the material seized in safe and proper custody so as to rule out any tampering with the same. The malkhana incharge has not been produced nor the malkhana register is proved during the trial and this makes the case of the prosecution doubtful as the tampering of the material during this relevant period in the absence of proper explanation cannot be ruled out. The supurdnama of the ring used for sealing is not given to independent witness so as to ensure that there was no chance of ring being again used for sealing any material. The Court has also held that PWs Pawan Dogra and Shabir Bhat are witnesses to the seizure memo but the material has not been shown to the witnesses in the Court. The trial court has relied upon the judgments of the Apex Court while discussing the impact of failure to keep the material in safe and proper custody when the same was required during investigation. The custody of the contraband sample or the material seized has to be in proper custody right from its deposit in the malkhana till the same is sent to the FSL for examination or even when the material seized is required to be produced in the Court during trial. The factual aspects of the case thrashed by the trial court do not require interference. The appellate court finds no reason to differ with the findings of the trial court while acquitting the accused.

The very fact that the poppy straw weighing 25 kg has been allegedly recovered as per prosecution from the truck driven by the accused does not mean that the accused has to be held guilty. The prosecution has to prove its case against the accused beyond shadow of doubt which it has failed to do so in the present case. The appellate court finds no flaw or error in the reasoning of the trial court while acquitting the accused. This court concurs with the findings of the trial court which resulted into acquittal of the respondent.

The applicant has failed to make out a case for grant of leave to file the appeal. The application seeking leave to appeal is dismissed, being devoid of merit.

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