Union Territory Of J&K vs Majid Mohd

Puneet Gupta, J

The application seeking leave to appeal is filed against judgment dated 08.08.2019, passed by the learned Additional Sessions Judge, Udhampur in case No. 120/Special Challan titled „State v. Majid Mohd.‟, whereby the respondent has been acquitted.

FIR No. 24/2013 came to be registered with Police Station, Kud for offences under Sections 8/15 NDPS Act after an information was telephonically received in the Police Station on 27.03.2013 at about 10.15 AM with the message that Parshotam Kumar 141/HC along with other police personnel and CRPF personnel was discharging duties at SCP Kral Nallah nakah point for checking of the vehicles, when a truck bearing No. JK02AD/4049 approached from Srinagar and going towards Jammu and despite being signaled to stop for checking by CRPF personnel at the nakah point sped away from the spot. Parshotam Kumar along with police personnel chased the vehicle and got it stopped at some distance and brought the vehicle to the premises of SCP Karnal Nallah where the vehicle was checked. Six bags of poppy straw are stated to have been recovered from the cabin of the truck. The driver disclosed his name as Majid Mohd. The investigation was handed over to SHO Ajeet Singh after the registration of the FIR. During the investigation, different quantity of the contraband was recovered and weighed from the bags and the total recovery was 111 kgs 100 gms. On the completion of the investigation, the challan under Sections 8/15 NDPS Act and 179 M. V. Act was presented in the court of law.

The accused was charged for offences under Sections 8/15 NDPS Act who denied the same and claimed trial.

The prosecution examined nine witnesses during the course of trial.

The statement of the accused under Section 342 Cr.PC was recorded but denied the accusations made in the prosecution case and did not produce any defence witness.

While acquitting the accused the thrust of the trial Court is on the contradictions that take place in the statements of the prosecution witnesses, identity of the accused being doubtful and the failure of the prosecution to prove the safe and proper custody of the contraband in the malkhana of the Police Station.

Learned counsel for the appellant has tried to convince the Court by arguing that the contradictions, if any, in the prosecution evidence are not material so as to discredit the prosecution evidence as a whole. The identity of the accused cannot be doubted through the prosecution evidence. The evidence brought on record in respect of safe custody of the contraband is duly proved by the investigating officer and the Malkhana Incharge was produced during trial.

The factual aspects of the prosecution case which have been analyzed by the trial court and the contradictions that appear in the statements of the witnesses which led to the acquittal of the accused can be scrutinized by the appellate court in appeal.

The Truck bearing No. JK02AD-4049, allegedly driven by the accused, when reached near Karal Nallah, nakka point failed to stop and instead sped away from the nakka point despite being signaled but the vehicle was stopped at some distance and brought to the nakka where the poppy straw was recovered from the cabin of the Truck. The trial Court has doubted the identity of the driver of the vehicle on the ground that there are contradictions in the prosecution evidence. The vehicle was initially signaled to stop by the Santry or by the police personnel and the vehicle was chased by the CRPF personnel or the police personnel and later on stopped by CRPF or police personnel are some of the facts with conflicting evidence. It is important to note that PW-Vijay Kumar has emphatically stated that CRPF personnel signaled the driver of the vehicle to stop but PW-Surinder Singh posted as Company Commander at the post has deposed that the Santry signaled the vehicle to stop. However, PW-Parshotam Kumar has stated during examination that he had signaled the driver of the vehicle to stop and has even contradicted that it has been wrongly stated in his statement under Section 161 Cr.P.C which speaks of the Santry signaling the vehicle to stop. It is not mere signaling of the vehicle which has assumed significance in the case but the chase of the vehicle and then stoppage of the same and bringing it back to the nakka point. Again, PW-Vijay Kumar is specific in stating that CRPF personnel stopped the vehicle after the driver sped away from the nakka point, whereas, PW-Surinder Singh has stated that the police personnel chased the vehicle and stopped it at some distance and PW-Parshotam Kumar has deposed that it was he who chased the vehicle in CRPF vehicle with PW-Vijay Kumar accompanying him and that the vehicle was caught at some distance of the nakka point. Admittedly, the CRPF personnel who were also present at the nakka point have not been examined by the prosecution. Even the identities of those CRPF personnel are not made known during the prosecution evidence. Their statements would not have much relevance otherwise in the case had their role been confined to their mere presence on the nakka without any alleged participation during the occurrence. Admittedly, the same is not the case here. It is not that their presence is merely recorded but their active role in chasing the vehicle or using of CRPF vehicle and even stopping of the vehicle by the CRPF personnel is tried to be brought on record through the prosecution evidence. The vehicle has been stopped at about 200 meters from the nakka and as per the I.O of the case PW-Parshotam chased the vehicle by running on foot as there was traffic jam at that point of time though PW-Parshotam Kumar in his statement has been candid enough to state that he chased the vehicle in question through CRPF vehicle. Once it is not known by whom the vehicle was got stopped at some distance from the nakka point and that it is not made out from the prosecution evidence if the accused had driven back the vehicle from that point to the nakka point and none disclosing that it was in fact the accused who was driving the vehicle when the driver of the vehicle sped away from the nakka point, it cannot be said with certainty that it was only the accused who was driving the vehicle when he sped away from the nakka point. It is noteworthy to mention that PW-Surinder Singh has deposed that there is a possibility that the vehicle could have two persons though the other prosecution witnesses do not say so. The factual aspects of the case are taken care of by the trial Court and their appreciation is not such which can be said to be absurd or not plausible requiring interference by the appellate court.

The non-satisfactory explanation with regard to safe and proper custody of the contraband has been held to be fatal for the prosecution. The prosecution has examined Younis Shah as Incharge malkhana, Chenani. As per the witness, PW-Ajeet Singh, deposited 09 sealed packets in his malkhana on 27.03.2013 and entry was made with regard to the same in Register No. 19 as Item No. 15. The extract of the same is correct as per the witness and exhibited as EXTP-7. The witness has also admitted that there is no entry regarding the handing over of the sealed material to the SHO on 28.03.2013 and the same is not mentioned in the extract. He has admitted that he gave the extract of the Register to the SHO on 08.06.2013. Prior to that on 02.04.2013, two packets marked as "A" and "B" were taken from him by SHO. The witness has not obtained the signatures of SHO on Register while handing over and taking over the sealed packets on all these dates of 28.03.2013 02.04.2013 and 08.06.2013 and all these have not been written in the exhibit EXTP-7. No FSL Form was either deposited in the malkhana by the SHO. The statement of the malkhana Incharge who verbally states but without any backing from the written record about the deposit of the sealed packets and taking of the same on different dates cannot be held to be credible one. The extract which is on the record and exhibited as EXTP-7 itself demolishes the case of the prosecution that the material was safe and in proper custody from its initial deposit and when it was lastly taken out from the malkhana of the concerned Police Station. The reliance placed on this aspect of the matter by the trial court in case titled „State of Rajasthan Vs. Daulat Ram‟ (AIR 1980 SC 1314) cannot be faulted with by the appellate court also.

The trial Court has also rightly observed that non-examination of independent witnesses in the facts and circumstances raises doubt in the case. The non-production of the contraband in the Court is held fatal by the trial court while noticing observations of the Hon‟ble Apex Court in case titled „Jatinder and anr. other Vs. State of M.P‟(AIR2003SC 4236).

The Court finds no ground to upset the findings of the trial court which are well reasoned. No reason not to concur with the judgment.

The application seeking leave to file the appeal is dismissed.

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