State Through Police Station ... vs Ahad Dar And Another
2021 Latest Caselaw 380 j&K/2

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
                                CRLA (AS) No.5/2021

                          Reserved on 23.03.2021.
                         Pronounced on 02.04.2021


State through Police Station Pulwama
                                                       ...Appellant(s)

                   Through: Mr. Mir Suhail, AAG
                                V/s
Ahad Dar and another
                                                      ...Respondent(s)
                          Through: None.

Coram:      HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGEMENT

1. The present appeal has been filed against the judgment dated

07.08.2018 passed by the Court of learned Principal Sessions Judge

Pulwama (hereinafter referred to as the trial court) in case titled "State

through SHO Police Station Pulwama versus Ahad Dar and

another" by virtue of which respondents have been acquitted of the

charges framed against them for commission of offences under

Section 8/20 and 25 NDPS Act in FIR No.283/2007 of Police Station

Pulwama.

2. The present appeal has been filed by the appellant on the ground that

the judgment impugned is against the law and facts of the case and

prosecution had proved the case beyond any doubt but still the learned

trial court has acquitted the respondents. It is further stated that the

learned trial court had doubted seizure of the charas from the

respondents though the recovery and seizure stood proved by the

witnesses produced during the trial. The learned trial court has

discarded the entire police evidence and seems to have been

influenced by the minor contradictions in the depositions of the

witnesses and also that the learned trial court has fallen into error of

law by holding that the non-examination of the Investigating Officer

casts doubt on the prosecution case as it is a settled principal of law

that non-examination of IO is not fatal to the prosecution case.

3. The brief facts necessary for the consideration of the present appeal is

that FIR No. 283/2007 under Section 8/20 and 25 NDPS Act was

registered at Police Station Pulwama on 16th July, 2007 after reliable

information was received that at Main Chowk Pulwama accused

namely Ahad Dar and Mst. Sara residents of Ladhermur Pulwama

were carrying contraband. The investigation was started and during

the course of investigation respondents were apprehended and on

being enquired they disclosed their names as Abdul Ahad Dar and

Mst. Sara and in presence of Executive Magistrate, the search was

effected and on personal search from the possession of respondent

No.1 a polythene envelope carrying charas was recovered and on

personal search of respondent No.2 one more polythene bag was

recovered. The contraband was weighed, samples were also extracted

and thereafter sent to FSL. During the course of investigation

respondent No.2 disclosed that respondent No.1 asked her to carry the

consignment to Pulwama and she was to get Rs.400/- (Rupees Four

Hundred only) and it was due to this reason that the respondent no.2

agreed to carry the bag. The prosecution has examined as many as

seven witnesses and in order to properly appraise the contentions of

the appellant it is necessary to have a brief resume of depositions

made by them.

4. PW Ali Mohammad Najar, Executive Magistrate stated that on

25/07/2007 he was posted as Naib Tehsildar Pulwama and he was

sitting at his residential house. SHO Police Station Pulwama requested

him on phone at about 9:00 in the morning to come on spot as they

have seized charas. He proceeded to the scene of occurrence near

Shaheed Park Pulwama. On spot he saw one man and a woman

besides SI Gh. Rasool and lady constable. Police told him that the

respondents were carrying charas. He stated that charas was being

carried by the respondents in their hands. On his instructions police

opened the envelope, one envelope that was in the hand of Ahad Dar

Charas was found having corn peels in it and the envelope that the

woman respondent No. 2 was carrying, also contained charas wrapped

in corn peels. Police had already brought the weighing scale and

weighed the contraband in his presence. Police prepared the memos

and the memos bear his signatures. The Contents of which are true

and correct. On spot no further proceedings were conducted in his

presence. The property was sealed and thereafter he went to his office.

On the same date police produced consignment. Samples were taken

and sealed in the office of the witness. He wrote a letter to FSL for

opinion. Remnants of the sample were again received and handed

over to the police. He identified the accused and his statement was

recorded by the IO. In cross examination he stated that he cannot say

as to when he was requested to come on spot, FIR was registered at

that point of time or not. Police told the witness that they have seized

the charas. He has no personal knowledge as to what were the

circumstances in which the charas was recovered from the accused

persons. When he came on the spot people were moving here and

there and shops were also open. If the police had asked the civilians to

associate with the process, they would have done it. He did not

request any civilian to associate with the process. He did not enquire

on spot from the shopkeepers, drivers and common people whether

seized property was recovered from the person of the accused. When

he came on spot police had already brought the weighing scale. He

does not remember as to what sort of weights were used for weighing

the contraband. In his presence no memo was prepared in relation to

weighing scale and weights. The letter that was written to FSL by him

is not present in the records. He does not know when sample was sent

to FSL by the police. He does not remember in whose custody the seal

used on the seizure memo and samples remained. He did not seek any

option from the accused. When he reached on spot the police

personnel were already there. No search of the accused was

conducted.

5. PW Manzoor Ahmad Mir stated that on 16/07/2007 he was posted in

Pulwama and he identifies the accused. Occurrence is of the month of

July 2007. At that point of time he was in the escort of SHO. Munshi

of the police station told Aijaz Ahmad, Shabir Ahmad and him to

proceed to bazaar along with Gh. Rasool. On reaching Pulwama

bazaar, SI noticed accused moving in suspicious circumstances. SI

called the Magistrate and asked him and other constables to take the

custody of the accused. On arrival of the Magistrate, personal search

of the accused was conducted and from their possession two

envelopes were recovered. SI told him to get the weighing scale. He

brought a weighing scale alone with weights. Property was weighed.

Perhaps one envelope was having 03 kgs and 300 gms and another

envelope was having 01 kgs and 700 gms. When SI called the

Magistrate, exactly at the same time the docket was sent to police

station. Property was seized on spot. In cross examination stated that

he did not take docket to the police station. It is correct that after

search docket was sent to police station and thereafter FIR was

registered. It is correct that respondents were searched in front of the

shop of Moma Check. People were moving on the roads besides

vehicles were also plying. He did not personally search the accused.

He does not know whether Investigating Officer called any civilian to

remain as a witness to proceedings or not. He does not know whether

Tehsildar gave any paper to the respondents. He at the time of

occurrence was overseeing the security of the party, as such he could

not concentrate fully on the search. The shopkeeper from whom the

weighing scale was taken, has not been cited as a witness and also he

does not remember his name. He was not knowing before leaving, the

place that they have to go for investigation of FIR. In his presence no

sample was taken on spot. Property was sealed on spot. Seal was

under the impression of ring.

6. PW Yaseen constable stated that on 16/07/2007 he was posted in

Pulwamá and during routine patrol under the supervision of SI Gh.

Rasool, Ghulam Rasool arrested one man and woman. They were

searched and from their possession three envelops were recovered. He

was at a distance from the spot and when he came closer by that time

search was already over. One lady constable Dilshada was with us.

Seizure memo was prepared on spot. He identifies his signatures on

the same. The seized property was wrapped in corn peels. In cross

examination stated that in his presence no charas was recovered from

the person of the accused No.1. When he reached the scene of

occurrence, the search was already over. He has no personal

knowledge regarding recovery. However, SI told him that charas was

recovered from both the accused. In his presence the contraband was

not weighed. Number of people were there at that point of time and

they were witnessing the proceedings. In his presence no sample was

taken on spot from the seized property. He cannot say whether Sub

Inspector had prior information about the respondents carrying the

contraband or not. In his presence, Sub-Inspector did not affect the

search of the respondents in presence of the Magistrate or gazetted

officer. He left the police station at 7:00 in the morning. He has no

knowledge as to how much quantity of charas was recovered from

each accused.

7. PW Dilshada stated that she knows the accused. On 16/07/2007 she

was posted in police station Pulwama. Sub-Inspector Gh. Rasool told

her that they have received some information and she was asked to

board the gypsy. As per the instructions, she boarded the gypsy and

reached Pulwama Chowk. In gypsy besides her, Aijaz Ahmad,

Manzoor Ahmad and Shabir Ahmad were also travelling. Sub-

Inspector Gh. Rasool saw the accused and stated that they are to be

searched. Accused were told by SI Gh. Rasool whether they needed to

be searched by the police or Magistrate. Accused told the SI that they

want to be searched in presence of the Magistrate. Memo was

prepared. Thumb impressions of the accused were obtained. Contents

of option memo are true and correct. However she did not sign on

them. Thereafter SI told constable Manzoor to ask the Magistrate to

come. Envelope was recovered from Ahad Dar in which charas was

wrapped in corn peels. She searched Mst Sara and from her

possession one polythene envelope was recovered that contained

charas wrapped in corn peels weighing 01 KG and 700 gms. Both

recovery memos were prepared and they are correct. Charas was

weighed in presence of Magistrate. She took accused Sara to police

station. She was shown the seized property in the Court. In cross-

examination stated that when they reached the Chowk, time was 9:30

in the morning. Investigating Officer and other constables went in the

same gypsy. Gypsy was stopped near the textile shop and the accused

were arrested. When Investigating Officer called Ahad Dar, she

alighted from the gypsy. Search of both the accused were carried out

simultaneously. Sara had concealed envelope under her pheran.

Seized property was weighed in her presence. Weighing Scale was

brought from a shopkeeper and Manzoor Ahmad constable brought

the weighing scale from the shopkeeper. All the memos were signed

by her on spot. She did not sign any paper in the police station. She

further stated that they reached the scene of occurrence at 10:30 AM.

She cannot say who had reliable information about the occurrence.

She was told by the Investigating Officer about the occurrence in the

gypsy. Gh. Rasool SI conducted the personal search of the accused

Ahad Dar and she cannot say as to from which part of the body of

accused No.1 recovery was made, as she was fully concentrating on

accused No.2. Before obtaining option, Investigating Officer asked

the accused whether they are educated. Accused told Investigating

Officer that they would put the thumb impressions on the option

memo. Option memo was read over and explained to the accused.

Since accused were illiterate they could not read the option memo.

Investigating Officer did not call any civilian on spot. She cannot say

whether option memo was written by Investigating Officer since she

was not conversant with the signature of the IO. Who wrote the option

memo she does not know. Magistrate came on spot within 5-6 minutes

and talked to Ahad Dar and Sara but what transpired in between them

she has no knowledge. She was at a distance from the Magistrate. She

does not know whether samples were sealed. Khaki sahib had written

the names of the accused on the memos and he did not prepare any

paper.

8. PW Aijaz Ahmad stated that on 16/07/2007 under the supervision of

Sub-Inspector Gh. Rasool Khaki, Constable Shabir Ahmed,

Muhammad Maqbool, Dilshada left for patrolling and as soon as we

reached the main chowk, we found the accused in suspicious

circumstances. Sub-Inspector told the accused that he wanted to

search them and asked them as to whether they wanted their search to

be conducted in presence of a senior officer and the option was sought

from the accused in writing. He took a docket to Tehsildar. Tehsildar

came along with him to the place of occurrence. Accused Ahad Dar

was searched by Shabir Ahmad. Mst Sara was searched by Dilshada.

During the search charas was recovered from them and was seized

and sealed on spot. From the possession of Ahad Dar 3 kgs 700 gms

charas was recovered and from the possession of Sara 01 kg and 800

gms was recovered. Thereafter, we went to the police station along

with accused. He identified the seized property in the court. In cross

examination stated that we left at 9:00 in the morning. On spot

number of people were moving to and fro. Shops were open. Perhaps

superior officers had information about the occurrence. However, he

had no knowledge. He does not know whether FIR was already

registered or not. FIR was not lodged since we had not seized the

charas. SI Gh. Rasool had come to the main chowk Pulwama.

However he cannot say whether he came to Pulwama in connection

with the investigation of the case. We did not take any vehicle from

the police station and we walked. When we reached the scene of

occurrence, accused was standing there along with other people. He

was given docket to call the Tehsildar but that docket is not on the

file. He reached Tehsil office at 9:30 AM. SI Gh. Rasool had already

called Tehsildar. When he returned back after informing the

Tehsildar, the investigation was complete and recovery was effected.

He does not have knowledge as to whether any civilian was associated

with the process of investigation. He saw recovery from the accused

himself. Till the Tehsildar came on spot accused were not searched

and till search he did not know that the accused were carrying charas.

He cannot disclose the name of the shopkeeper who was asked to give

weighing scale. It took one hour to complete the proceedings. During

investigation no superior officer was present on spot. SHO also did

not come on spot and he also did not prepare any paper on spot.

9. PW Muhammad Maqbool Mir stated that on 16/07/2007 he was

posted in Pulwama. During patrolling in the main chowk under the

supervision of SI Gh. Rasool Khaki, Sub-Inspector arrested one man

and woman. Arrested accused were searched on spot. SI recovered the

charas from the person of the accused. He was watching the

proceedings from a distance and when he reached near the scene of

occurrence by that time search was complete. We were accompanied

by one lady constable Dilshada. He cannot say how much charas was

recovered. He identifies his signature on EXPW2 and the contents of

the same are true and correct. In cross examination he stated that in

his presence nothing was recovered from the possession of the

accused No.1. He has no personal knowledge about the recovery.

However, SI told him that charas was recovered from the possession

of the accused. In his presence nothing was weighed. When charas

was recovered, there was great hustle and bustle in the market. No

sample was taken in presence of the witness. He cannot say whether

SI had prior information that accused were carrying the charras. In

presence of the witness Sub-Inspector did not conduct the search of

the accused before the Magistrate or gazetted officer. Sub-Inspector

did not ask any pedestrian to sign the seizure memo. We left the

police station at 7:00 AM in the morning. So there was no question of

alighting from the vehicle.

10.PW Shabir Ahmad stated that on 16/07/2007 he was posted in Police

Station Pulwama. SHO had a reliable information. Police party under

the supervision of Sub-Inspector left towards main chowk. We saw a

man and a woman in the market. SI Gh. Rasool asked the accused that

they are required to be searched. Both the accused stated that they

wanted to be searched in presence of the Magistrate. Magistrate was

called on phone and docket was also sent. Accused had already

disclosed their names to the SI. Accused No.1 was searched by one

constable and accused No.2 was searched by Dilshada. Search was

conducted in presence of the Magistrate. From the accused No.1,

charas weighing 3 kgs was recovered and from the possession of

accused No. 2 same quantity was recovered. Seizure memo was

prepared and he identified his signature on the same. In cross

examination stated that he has no personal knowledge about the

information which SHO had received about the occurrence. However,

he was told to accompany the party. Investigating Officer Gh. Rasool

was present on spot. In the main chowk accused were arrested near

taxi stand. As per the instructions of SI we laid a cordon around the

accused. In the chowk many people had assembled. He does not

remember as to whether accused were wearing pheran on that date or

not. He has no knowledge as to what transpired between the accused

and the Magistrate. Charas was weighed on spot with the weighing

scale that was brought from a shopkeeper. He did not count the seized

property that was wrapped in corn peels. Charas was weighed along-

with the envelopes. Seizure memo was signed by Dilshada and

Manzoor in his presence.

11.This is the whole of prosecution evidence and after the closure of

prosecution evidence, the accused were examined under Section 342

Cr.P.C. and they denied that any charas was recovered from them.

Accused had examined one Mohammad Shaban Sheikh and Ghulam

Ahmad Sheikh in defence. Both of them have stated that the accused

are gentle person and on that date they were travelling in a sumo and

went towards Pulwama and on reaching there, they were intercepted

by police and taken to Police Station.

12.Mr. Mir Suhail, AAG has vehemently argued that the recovery of the

contraband from both the accused stand duly proved by the police

officials and as such the learned trial has wrongly acquitted the

accused. He further argued that the minor contradictions have been

given much weight by the trial court, as such judgment is not

sustainable in the eyes of law.

13. Heard and perused the record.

14. The prosecution story is that that the accused were given an option of

search in terms of Section 50 of NDPS Act in the presence of

Magistrate. The Magistrate has categorically denied in his statement

that any search option was given to the accused in his presence and

rather he has stated that when he reached on the place of occurrence

recovery was already effected and he has gone to the extent of saying

that he cannot say under what circumstances recovery was effected

from the person of the accused. PW Aijaz Ahmed stated that when he

came back from Tehsil, recovery had already been affected. PW

Manzoor Ahmed Mir has stated that after search, docket was sent and

then FIR was registered, that runs contrary to the prosecution case.

PW Yaseen, who is witness to the seizure memo has stated that three

envelopes were recovered from accused that is also contrary to the

prosecution case and he has further stated that no charas was

recovered. PW Mohd Maqbool stated that nothing was recovered from

accused No:1 and has no personal knowledge of recovery. PW Shabir

Ahmed has stated altogether different story by narrating 3 Kgs.

Charas was recovered from both the accused. Thus there are material

contradictions in the statement of the witnesses, those cause doubt

about the recovery of the contraband from the accused. It is further

evident that the samples were received by FSL on 27.07.2007 along-

with letter dated 21.07.2007 sent through Ghulam Rasool Head

Constable. The said person Ghulam Rasool is not figuring as the

prosecution witness and also there is nothing on record to demonstrate

that the samples as well as contraband recovered from the accused

remained in whose custody from the date of recovery till the same

were sent to FSL. Not only this, there is delay in sending samples to

FSL. All these aspects were required to be explained by the

Investigating Officer who is the most material witness in cases

particularly in NDPS cases. More-so when the police was already

having information with regard to the accused persons, there is

nothing on record to demonstrate that such information was reduced

into writing and was communicated to superior officers in terms of

Section 57 of NDPS Act.

15. Appellant has not been able to convince this Court that the opinion

formed by the learned trial court is perverse and contrary to the facts

led by the prosecution. No doubt the powers of the appellate court in

appeal against acquittal are no less than in an appeal against

conviction. But where on the basis of evidence on record, two views

are reasonably possible, the appellate court cannot substitute its view

in place of that of the trial court. It is only when the approach of the

trial court in acquitting accused is found to be clearly erroneous in its

consideration of evidence on record and in deducing conclusion there

from, the appellate court can interfere with the order of acquittal.

16. I have also perused the judgment passed by the trial court and I find

that the finding recorded by the trial court can neither be termed as

perverse, contrary to the evidence nor erroneous, therefore no case is

made out. In the result, this appeal is without any merit and is hereby

dismissed.

(RAJNESH OSWAL) JUDGE Srinagar 02.04.2021 Shameem H.

Whether the order is speaking: Yes

Whether the order is reportable: No