Union Territory Of J&K vs Shabir Ahmed

Puneet Gupta, J

The application seeking leave to appeal is filed against the judgment dated 31.08.2019, passed by the learned Principal & Sessions Judge, Samba in case No. 07/Special Challan titled 'State v. Shabir Ahmed', whereby the respondent has been acquitted.

The case set up before the trial court was that on 27.01.2011, a police party led by Tajinder Singh, SHO Police Station was on naka duty near Balole village NHW when the accused was noticed proceedings towards Bari Brahmana and who tried to escape on seeing the police party. The accused was apprehended and on search of the accused a polythene bag containing charas wrapped in maize cob-webs weighing 440 gms was recovered. FIR No. 14/2010 came to be registered under Section 8/20 NDPS Act on the docket sent to Police Station, Bari Brahmana. The investigation was entrusted to PW-8 Tilak Raj and the same was later completed by PW-Shafqat Hussain. The usual proceedings took place in the matter and after investigation challan was produced under Section 8/20 NDPS Act.

The accused denied the charges framed under Section 8/20 NDPS Act and claimed trial.

The learned counsel for the appellant has submitted that the trial court has failed to take into account the evidence and acquitted the accused without reasonable cause. The technicalities on which the trial court has based its findings were unwarranted and required to be ignored.

The prosecution has examined number of witnesses in support of its case.

PW-Tilak Raj investigated the case after the docket was received for registration of the case. As per the witness, SHO was also present on the spot. The charas had already been recovered when he reached the spot and he seized the seizure memo with respect to charas and personal search of the accused. He recorded the statement of the witnesses and got resealed the sealed packets from Naib Tehsildar, Bari Brahmana and also sent sample parcel weighing 40 gms to FSL Jammu for examination. Rest of the investigation was completed by the other I.O as he has retired from the service in the meantime. He has further stated that the docket was received in the police station at 6.45 PM and he reached on spot at 7.15 PM. He weighed the charas and deposited the sealed packets in Malkahna of the Police Station.

PW-Shafqat Hussain has more or less only compiled the challan as he obtained FSL report and thereafter presented the challan in the court.

No evidence was produced in defence after the incriminating circumstances appearing in the prosecution evidence was brought to the knowledge of the accused while recording his statement under section 342 Cr.Pc.

The trial court has analyzed the prosecution evidence. The trial court has observed that the provisions of Sections 42(1) and 42(2) of the Act were mandatorily required to be complied with as it was a chance recovery but the prosecution failed to do so. It has been pointed out that there is some evidence that SHO informed the Dy.S.P about the occurrence who came on spot but there is absolutely no evidence to suggest that the information regarding recovery of charas was given to the superior police officers. The trial court has rightly taken note of the significant lapse on the part of the prosecution that neither the Dy.S.P nor PW-Tajinder Singh SHO who was allegedly on the spot was examined. In Section 42(2), the word 'shall' appears in relation to sending of the copy of the information to the immediate superior by the officer who takes down information in writing or record grounds for his belief regarding commission of offence as provided in sub-section (1) of Section 42. The trial court has referred to case titled 'Karnail Singh v. State of Haryana'( 2009 (8) SCC 539 ) wherein the Hon,ble Apex court held provisions of Section 42(2) to be mandatory and their non-compliance as impermissible. However, the delayed compliance with a satisfactory explanation can be countenanced. In the present case the information to the superior officers is not sent. This Court finds no fault with the finding of the trial court on this aspect of the case.

In addition to the above, the trial court has pointed out the contradictions in the statements of the prosecution witnesses which are material ones and cause dent in the prosecution case. The prosecution has examined, Rakesh Kumar and Rajesh Kumar, who were allegedly present on the spot. Whereas, PW- Rakesh Kuamr states in his examination that SHO was present on the spot in connection with VIP movement and so was Dy.S.P when the accused was apprehended and that SHO prepared the docket and sent to Police Station for lodging F.I.R, on the other hand, PW-Rajesh Kumar records the presence of SHO and Dy.S.P after 15-20 minutes of apprehending of the accused. As per the witness PW-Sunil Khajuria prepared the docket and sent to Police Station for lodging F.I.R. PW Shisu Pal has deposed that he searched the accused whereas PW Rajesh Kumar states that he searched the accused on the direction of the Dy.SP. There could be no better fatal contradiction that this one in the prosecution case. Not only that, the witnesses though are police personnel have deposed in a contradictory manner with regard to the bringing on spot the balance and the weights for weighing the alleged seized article-charas. As per PW-Shishu Pal, these were brought by Dy.S.P in his vehicle whereas Tilak Raj has deposed that he got the balance from a shop. This aspect of the case may not have much significance as to who had brought the balance and the weights but keeping in view the fact that only police personnel have been examined the case who have onerous duty to perform as police personnel but failed to do perform responsibly in such an important matter. In such a situation, when there is discrepancy on material aspect of the case the same cannot be overlooked by the court nor any advantage to the prosecution can be given moreso in a case when the accused is charged for commission of offence under NDPS Act which has very stringent punishment in case the charges stand proved against the accused person.

The trial court has also doubted the prosecution case for the reason that no independent witness was associated during the occurrence which took place on the National Highway. Without doubt, the prosecution witnesses in their respective statements have deposed that the place of occurrence was open to human and vehicular traffic. There is not an iota of evidence on record which reveals that any effort was made on spot to bring any civilian who could stand as witness to the proceedings.

A very important link and which in the absence of the proper explanation is found to be fatal for the prosecution has been discussed by the trial court. The samples were received at FSL Jammu on 01.02.2010 as per PW-Rohit Koul from FSL. PW-Manzoor Hussain has stated that he resealed the three sealed packets brought before him. However, there is nothing on record to suggest as to where the recovered packets and sealed ones were deposited before being finally sent to FSL, Jammu for examination. PW-Tilak Raj, Investigating Officer, though has stated in cross-examination that he deposited the sealed packets in Malkhana of the Police Station but there is nothing on the record to give leverage and weightage to his statement. There is no documentary evidence in the form of production of Malkhana register to this effect. There is no plausible explanation coming through the prosecution evidence as to whether the samples can be said to be in proper custody from 27.01.2010 to 01.02.2010 when the samples were received in the FSL by PW-Rohit Koul. It is the duty of the prosecution to bring to convince the court that there was no possibility of tampering with the samples during relevant period. No allowance can be given to the prosecution for the fault committed by it and the case of the prosecution gets knocked out on that score itself.

Lastly, the trial court has detailed out other discrepancies that appeared in the prosecution evidence which include fixation of the seal by the SHO on the parcels of sample before depositing it in the Malkhana, particulars of arrest and report of seizure to immediate official within 48 hours as per Sections 55 and 57 of the NDPS Act and also non-filling up of CFSL form on spot as required under law. The breach of these provisions may not in all the cases prove fatal for the prosecution but it cannot be said that the non-compliance of the same can be over-looked and given complete go-by to the provisions of law making these provisions redundant. The provisions which are directory in nature have to be appreciated in the light of the evidence that has come on record.

PW-Rohit Koul is from FSL and found the examined article as charas and issued the certificate which is exhibited as EXT-P-7. He was not forwarded FSL form by the I.O. The result of the examination of the article tested is not to prove the case against the accused unless his involvement is not established through other evidence which is found conspicuously missing in the case in hand.

It is culled out from the judgment passed by the trial court that the prosecution has failed to prove its case beyond shadow of doubt on many grounds, which include contradictions in the statements of the prosecution witnesses, non-examination of Dy.S.P and even SHO Tajinder Singh, the non-compliance of Section 42 of the NDPS Act, no evidence with regard to the proper and safe custody of the sample from its initial sealing till it was sent to FSL for examination and finally the non-compliance of those provisions of law which though directory in nature had serious impact on the prosecution case in the light of the evidence produced by it.

The trial court has by its lucid findings acquitted the accused. No interference is called for in the impugned judgment. The application filed for leave to appeal is declined.

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