Union Territory Of J&K vs Mushtaq Ahmed

Puneet Gupta, J

The application is filed seeking leave to appeal against the judgment dated 30.09.2019, passed by the learned Principal Sessions Judge, Reasi in case No. 16/2014 Sessions titled 'State v. Mushtaq Ahmed' whereby the respondent has earned acquittal.

The police party led by P.S.I Yog Raj while discharging duty at Symbal Choua on 22.03.2014 at about 3.15 PM signaled one truck bearing registration No. JK02AB/9171 on front side and JK02B/8171 on the other side of the truck was signaled to stop but the driver of the truck raced the truck towards Reasi which was chased by the police. The Truck driver is stated to have kept the truck on the road side and fled from the spot along with conductor towards the Jungle. The search of the two boxes in the truck resulted into the recovery of two plastic bags containing bhuki weighing 52 Kgs. This culminated into registration of FIR No. 18/2014 under Sections 8/15 NDPS Act. The SHO of Police Station, Reasi conducted investigation in the case and during investigation Mushtaq Ahmed and Din Mohd. were found to be the accused persons who had purchased the contraband from Qazigund, Kashmir.

The challan was presented against the accused, Mushtaq Ahmed and Din Mohd. The accused Din Mohd. was initially proceeded under Section 512 Cr.P.C as he could not be traced but who later on appeared before the court. The said Din Mohd. was discharged as no prima facie evidence was disclosed against him and the accused Mushtaq Ahmed was charged for offences under NDPS Act.

The prosecution examined number of witnesses in the case. On the closure of prosecution evidence, the statement of the accused under Section 342 Cr.P.C was recorded wherein he denied the prosecution allegations as baseless. He did not produce any evidence in defence. It may be mentioned herein that the prosecution examined only 5 witnesses out of 18 witnesses mentioned in the challan and even failed to produce FSL expert as well as Investigation Officer of the case.

The trial court while examining the prosecution evidence has found material contradictions in the statements of the prosecution witnesses.

PW-3 Rakesh Kumar who was on the spot has deposed of one person who had jumped from the truck and that no weighing balance was seized in his presence and further that seizure was made in Police Station. The witness has no knowledge about the identification parade conducted in the case. PW-6 Ashok Kumar has, on the other hand, stated that Ved Parkash recovered the contraband from the truck and that he did not know the driver or conductor of the vehicle. PW-8 Bishamber Dass has taken photographs of the bhuki seized in the case and has not stated anything about the person who had seized the same from the truck as the same was not recovered in his presence. This witness is a photographer in Police Station, Reasi. PW-4 Davinder Singh who also claims to be at the naka point during the course of occurrence has stated that it is true that the truck driver had jumped from the truck and ran away along with conductor before the police party reached near the truck. This is the only evidence which has come on record so far as the actual occurrence is concerned. PW-Rajesh Kumar is witness to the resealing of the packets and issuance of certificate Ext.P-14. The examination of the statement of the witnesses reveals that the statements of the witnesses are not supportive of each other and the witnesses have gone to the extent of showing material contradictions in the manner occurrence is alleged to have taken place.

Another factor which is very significant in the case is about the identification of the accused. Admittedly, when the vehicle was allegedly searched no person was found there as the truck driver and the conductor even if any present in the truck had left the truck by the time police party reached the site. On what basis the accused is considered as driver of the vehicle by the prosecution is not known. There is not an iota of evidence that the witnesses who were on spot at the time of occurrence and have deposed during the trial have stated that it was the accused who was driving the vehicle or that the witnesses had otherwise identified the truck driver when the driver raced the truck from the naka point. The possibility of the truck driver being recognized at the naka point cannot be comprehended.

The trial court has also doubted the prosecution story as the court has held that the civilians were available at the time of occurrence but were not involved in the recovery and seizure of the article and that too without any reasonable explanation. In addition, the court has also discussed of the consequences of the non-examination of chemical examiner from FSL and the delay caused in sending the sample to FSL after considerable delay and without any proof that the same remained in safe and proper custody during the relevant period of time. The non-examination of the Investigation Officer is held to be fatal for the prosecution case as he was the one who prepared the seizure and kept the sample during the period in question. The trial court noticed the flaws in the prosecution evidence which makes the prosecution case doubtful and the findings of the trial court being based upon the appreciation of evidence in its right perspective, the judgment of the trial court need not be interfered with.

The application filed for leave to appeal is without merit and is dismissed.

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