State Of Jammu And Kashmir vs Mohinder Singh And Another
2021 Latest Caselaw 538 j&K

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             HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                     (THROUGH VIRTUAL MODE)
                                            CRAA 111/2011

                                                     Reserved on : 23.04.2021
                                                     Pronounced on: 30.04.2021

State of Jammu and Kashmir
                                                                .....Appellant(s)

                          Through :- Mr. Aseem Sawhney, AAG

                V/s

Mohinder Singh and another                                    .....Respondent(s)


                          Through :- Mr. Rohan Nanda Advocate


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                              JUDGMENT

1. Instant appeal is directed against the judgment of acquittal

dated 30.04.2011 passed by the learned Special Judge (Additional Sessions

Judge), Jammu (hereinafter referred to as the 'trial Court') in the case titled

'State vs Mohinder Singh and anr' arising out of FIR No.101/2003 of

Police Station, Gandhi Nagar, Jammu for offence under Section 15 of

NDPS Act.

2. Briefly stated, the case of prosecution is that on 03.04.2003,

the police of Police Post, Nehru Market, Jammu received a source

information that the respondents/accused are trading in poppy straw at Bus

Stand, Nehru Market, Jammu and that they are in possession of poppy

straw. The report was entered into the concerned register and a docket was 2 CRAA 111 of 2011

sent to the Police Station, Gandhi Nagar, Jammu for registration of a case.

Accordingly, the aforesaid FIR came to be registered.

3. The Investigating Officer Harminder Singh along with ASI

Chaman Lal and other police officials proceeded to spot and they

apprehended the respondents/accused. They were served with a notice in

terms of Section 50 of NDPS Act seeking an option from them with regard

to their search. The respondents/accused opted to get themselves searched

in presence of a Dy.SP, who arrived on spot and both the

respondents/accused were subjected to search in his presence. Upon

personal search of respondent/accused Mohinder Singh, 500 gms of poppy

straw and upon personal search of respondent/accused Raj Singh, 400 gms

of poppy straw was recovered. The representative samples of the recovered

contraband were sealed and seized. The same were sent to FSL, Jammu for

analysis. Upon completion of the investigation, offence under Section 15

NDPS Act was found established against the respondents/accused. Charge-

sheet was, accordingly, filed before the learned trial Court.

4. In terms of order dated 02.08.2004 of the learned trial Court,

the respondents/accused were charged for offence under Section 15 NDPS

Act to which they pleaded not guilty. Accordingly the prosecution was

directed to lead evidence in support of the charge. The prosecution

examined seven out of eleven listed witnesses. The learned trial Court,

after analyzing the prosecution evidence and after hearing the parties,

passed the impugned judgment thereby acquitting the respondents/accused

of the charges.

5. The judgment of acquittal passed by the trial Court has been

assailed by the appellant-State on the grounds that the same is contrary to

law and facts; that the learned trial Court has failed to appreciate the 3 CRAA 111 of 2011

prosecution evidence in its proper perspective; that the evidence led by the

prosecution is sufficient in the ordinary course to prove the guilt of the

respondents/ accused and that the learned trial Court has taken a hyper

technical approach while acquitting the respondents/accused.

6. I have head learned counsel for the parties and perused the

impugned judgment, the grounds of appeal and the evidence on record.

7. It has been vehemently argued by learned counsel for the

appellant that the prosecution has succeeded in proving the charge against

the respondents/accused by leading cogent and convincing evidence in the

shape of statements of witnesses in whose presence the recovery of

contraband from the possession of the respondents/accused has taken place.

It has been further contended that once the recovery was proved, the

presumption contained in Section 54 of NDPS Act would come into play

and it was for the respondents/accused to prove the contrary which they

have failed to do. Taking this argument further, it has been contended that

the learned trial Court has failed to take into account this aspect of the

matter while passing the impugned order of acquittal in favour of the

respondents/accused.

8. Per contra, learned counsel for the respondents/accused has

vehemently contended that, unless the facts as regards the recovery of

contraband from the possession of respondents/accused are proved by the

prosecution by leading cogent and convincing evidence, the presumption

under Section 54 of NDPS Act would not come into play. The learned

counsel has further contended that the evidence on record as has been led

by the prosecution, is contradictory in nature which cannot be relied upon.

He has further contended that in spite of availability of independent

witnesses on spot at the time of the alleged recovery of contraband, no 4 CRAA 111 of 2011

independent witness has been associated by the prosecution and, as such,

the statements of police witnesses cannot be relied upon. Another

contention that has been raised by learned counsel for the

respondents/accused is that the requirements of Section 50 of NDPS Act

have not been complied with by the investigating agency and on this

ground also, the acquittal of respondents/accused is justified.

9. If we have a look at the statements of the witnesses examined

by the prosecution in this case, all the witnesses including the police

officials, who as per the prosecution story were present on spot at the time

of alleged recovery of contraband, have stated that the recovery was made

near the Bus Stand and there were a number of people around at the

relevant time. PW-3 Constable Mohd Razak has stated that the place of

recovery is a busy place. He has further stated that the police did not call

any person on spot at the time of search of the respondents/accused. PW

SPO Ajay Sharma and PW S.S. Johar SDPO have given statements on

similar lines. The Investigating Officer PW-10 Harminder Singh has also

admitted that the place of recovery is a busy place. He has further gone on

to state that he did not summon any civilian as a witness at the time of the

recovery.

10. From the aforesaid evidence on record it is clear that alleged

recovery was effected at a busy spot near bus stand and that there was

availability of civilians for their association as witnesses to the recovery of

the contraband from the respondents/accused, but in spite of this, they were

not associated. The Investigating Officer in his statement has not given any

reason as to why he did not associate the civilians. This leads to only one

inference that the Investigating Officer has intentionally avoided to

associate the civilians in the process of recovery of alleged contraband 5 CRAA 111 of 2011

from the respondents. The non-association of independent witnesses in

these circumstances, therefore, cannot be wished away lightly. It certainly

creates a doubt about the recovery of the contraband from the possession of

the respondents.

11. The recovery of contraband from the possession of

respondents/accused becomes further suspicious from the statement of PW

J. S. Johar, the then SDPO in whose presence the respondents/accused are

alleged to have been subjected to personal search. In his cross-examination,

he has stated that he does not remember as to who searched the accused. He

also does not remember as to from which portion of the person of the

accused the recovery was affected. The other witness to the recovery memo

is PW- 5 Constable Mohd Aslam. He has denied the prosecution story and

has turned hostile. In these circumstances, it would be highly unsafe to rely

upon the uncorroborated testimony of PW- 3 Constable Mohd Razak, the

only person, who has supported the prosecution case so far as the seizure of

contraband from the possession of respondents is concerned.

12. In the face of aforesaid discussion, it cannot be stated that the

prosecution has succeeded in this case in proving the recovery of

contraband from the possession of the respondents. Once, this foundational

fact is not established, the presumption available to the prosecution under

Section 54 NDPS Act would not come into play. In this regard, I am

supported by the judgment of the Supreme Court in the case of Noor Aga

vs State of Punjab (2008) 16 SCC 417. The relevant excerpts of the said

judgment are reproduced as under:

"58......An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove 6 CRAA 111 of 2011

his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."

13. In the instant case, in view of the nature of evidence as

discussed herein before, the prosecution has failed to establish the

foundational facts relating to recovery of the contraband from the accused

beyond all reasonable doubt and, therefore, it cannot be stated that the the

learned trial Court has committed any error in refusing to rely upon the

evidence of prosecution in this regard.

14. There is yet another aspect of the mater which is required to

be noticed. In the instant case, there can be no dispute that prior to effecting

search of respondents, the requirements of Section 50 of NDPS Act were

required to be followed because it was not a case of chance recovery, but

the police had prior information with regard to the possession of

contraband by the respondents and further the contraband as per the

prosecution case, was recovered from the personal search of the

respondents/accused.

7 CRAA 111 of 2011

15. Section 50 NDPS Act lays down the conditions under which

the search of persons is to be conducted. It reads as under:

"50. Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior"

8 CRAA 111 of 2011

16. From a perusal of aforesaid provisions, it is clear that an

accused (suspect) should be made aware of the existence of his right to be

searched in presence of one of the officers named in the Section.

17. As already noted, learned counsel for the respondents has

contended that the requirements of Section 50 of NDPS would stand

complied with only if an accused is informed about his right to get himself

searched in presence of a 'Gazetted Officer' or a 'Magistrate'. According

to the learned counsel, merely making an enquiry from the accused as to

whether he would like to get himself searched in presence of a 'Gazetted

Officer' or a 'Magistrate' does not fulfill the requirement of Section 50 of

NDPS Act. In this regard, the learned counsel has relied upon the judgment

of Supreme Court in the case of Myla Venkateswarlu vs State of Andhra

Pradesh, AIR 2012 Supreme Court 1619.

18. The Supreme Court in the aforesaid case while dealing with

this aspect of the matter has, after noting the provisions contained in

Section 50 of NDPS Act, observed as under:

"7. On account of divergence of opinion between the two decisions of this court with regard to the dictum laid down by the Constitution Bench in Baldev Singh (AIR 1999 SC 2378) another Constitution Bench in Vijaysingh Chandubha Jadeja v. State of Gujarat considered the question whether Section 50 of the NDPS Act casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section. The Constitution Bench held that although Baldev Singh did not 9 CRAA 111 of 2011

decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 makes it imperative for the empowered officer to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to inform the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Constitution Bench noted that in Baldev Singh, it was clarified that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. The Constitution Bench reiterated the principles laid down by this court in Baldev Singh and added that the concept of substantial compliance with the requirement of Section 50 of the NDPS Act is neither borne out from the language of Section 50(1) nor it is in consonance with the dictum laid down in Baldev Singh. Thus, it is no longer in dispute that strict compliance with the provisions of Section 50(1) of the NDPS Act is necessary. We need to see whether evidence adduced in this case establishes that there was strict compliance of Section 50(1) of the NDPS Act".

19. From a perusal of afore-quoted observations of the Supreme

Court, it is clear that strict compliance of provisions contained in Section

50 (1) of NDPS Act is necessary and in this regard, failure to inform the 10 CRAA 111 of 2011

suspect about the existence of his right to be searched before a 'gazetted

officer' or a 'Magistrate renders the recovery of illicit article suspect and

vitiates the conviction. It also appears from the ratio laid down in the afore-

quoted judgment that a mere enquiry by the investigating officer as to

whether the suspect would like to be searched in presence of a 'gazetted

officer' or a 'Magistrate' cannot be said to be due compliance with the

mandate of Section 50 (1) of NDPS Act.

20. Coming to the instant case, contents of the memos of option

Ext- P and Ext-P1 would show that the investigating officer has merely

made an enquiry from the accused whether they desire themselves to be

subjected to search in presence of a 'Gazetted Officer' or in presence of a

'Magistrate'. They have not been informed about their right in this regard.

As per the ratio laid down by the Supreme Court in the aforesaid judgment,

the requirements of Section 50(1) of NDPS Act, in the instant case, have,

therefore, not been complied with while undertaking the search of the

respondents. On this ground also, the respondents are entitled to acquittal.

21. Apart from the above, the evidence on record shows that the

safe custody of sealed samples from the time of their sealing up to the time

of their resealing before the Magistrate is shrouded in suspicion. Even the

sealing of samples is not beyond suspicion.

22. The prosecution has neither examined the In-charge of

Malkhana nor has it produced the Malkhana register or its relevant extract

to prove the safe custody of sealed samples from 03.04.2003, the date when

the samples of recovered drugs are alleged to have been sealed to

05.04.2003, the date when these samples are stated to have been delivered

in FSL Jammu. It was necessary for the prosecution to prove that the sealed

samples were kept in safe custody so as to rule out any possibility of their 11 CRAA 111 of 2011

tampering. Unfortunately for the prosecution, there is no evidence on

record in this behalf.

23. The matters for the prosecution get more worse because when

the seal (ring) used for sealing the samples, was shown to the investigating

officer during his cross examination, he stated that it does not bear the

impression 'RAM' in Hindi. It is pertinent to mention here that as per

Suparadnama EXT. P/VI, the seal (ring) used for sealing was bearing

impression 'RAM' in Hindi. This means that even the safe custody of the

seal used in sealing of samples of seized contraband is shrouded in

suspicion thereby raising question mark about the fairness of process of

sealing of samples.

24. The absence of evidence with regard to the safe custody of

samples and the suspicious circumstances surrounding the actual process of

sealing of the samples casts grave shadow upon the fairness of the manner

in which the investigation of the case has been conducted. This has given a

fatal blow to the prosecution case. In this behalf support can be drawn from

the ratio laid down by the Supreme Court in the case of State of Uttar

Pradesh vs Hansraj alias Hansu, 2018 (4) Law Herald (SC) 3154,

wherein it has been held that if the prosecution has failed to answer as to in

what conditions the articles were preserved at the Police Station/Malkhana

and how safely they were taken from there to the respective chemical

examiners by its carriers, the accused would be entitled to acquittal

25. Thus the findings of the learned trial Court as recorded in the

impugned judgement, are based on proper appreciation of evidence on

record and it would not be open for this Court to interfere in these findings

in appeal.

12 CRAA 111 of 2011

26. The Supreme Court in the case of Chandrappa and others v.

State of Karnataka (2007) 4 SCC 415, has summarized the general

principles regarding the powers of the appellate court while dealing with an

appeal against the order of acquittal and held as under:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion;

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court;

13 CRAA 111 of 2011

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

27. The aforesaid principles have been reiterated and reaffirmed

by the Supreme Court in the case of Mohinder Singh vs. State of Punjab,

(2018) 18 SCC 540

28. In view of the aforesaid principles, the judgement of

acquittal recorded by the trial Court is based on cogent and convincing

reasons and the same does not warrant any interference. The impugned

judgment of acquittal passed by the learned trial Court is, therefore, upheld

and the appeal is dismissed.

(SANJAY DHAR) JUDGE Jammu 30.04.2021 Sanjeev PS

Whether the order is speaking : Yes Whether the order is reportable : Yes/No

RENU BALA 2021.05.03 13:45 I attest to the accuracy and integrity of this document