State Of J&K vs Rizwan Ahmed
2021 Latest Caselaw 841 j&K

                                                              Sr. No. 216
                                                       (After Notice Cause list)



         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU
                                 SLA No. 33/2017
                                 in
                                 CONCR No. 29/2017


State of J&K                                    .....Appellant(s)/Petitioner(s)

                      Through: Mr. Raman Sharma, AAG vice
                               Mr. Aseem Sawhney, AAG

                 Vs

Rizwan Ahmed                                              ..... Respondent(s)

                      Through: None

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                  ORDER

09.08.2021

(Oral)

Per:Tashi-J

01. The instant application filed seeks leave to file acquittal appeal along with the application seeking condonation of delay of 104 days in filing the appeal.

02. The appeal is filed against the judgment dated 30.07.2016, passed by the Learned 1st Additional Sessions Judge, Jammu acquitting the respondent of the charges framed under Section 8/21 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act).

03. Briefly stated, on 07.04.2006 HC Vijay Kumar along with Constable Mohd. Amin and Ex-serviceman Mejra Singh was deployed at VIP Gate Railway Station, Jammu and at about 10.00 a.m. one person carrying a briefcase came towards the Railway Station platform and was asked by Mejra Singh for checking and briefcase on being subjected to

in CONCR No. 29/2017

checking through X-ray machine some ball type impressions were seen on the screen. The briefcase was opened and was found to contain clothes and three packets of cannabis. The person disclosed his identity as Rizwan Ahmed S/o Abdul Rehman Renzoo, R/o Kokar Bazar, Lal Bazar, Srinagar. An FIR No. 07/2006 was registered with police station GRP Jammu Tawi against the accused under Section 8/20 of the NDPS Act on the docket received through Mejra Singh.

04. The 65 balls of cannabis, weighing 2 ½ kg in first packet, 59 balls weighing 2 ½ kg in second packet and 60 balls, weighing 2 ½ kg in third packet, total 7 ½ were seized and sample of 50 grams from each of the packets was taken out and marked as A, B and C and sealed with a ring and material also photographed. All the three packets and samples were got re- sealed by a Magistrate and sent to FSL for chemical analysis along with magisterial authority letter from the office of Dy. SP Railways. The charge- sheet was filed against Rizwan Ahmed, S/o Abdul Rehman Renzoo on the completion of the investigation.

05. The prosecution in order to prove the case against the accused examined PW 1 HC Vijay Kumar, PW 2 Constable Mohd. Amin, PW 3 Prakash Sharma, PW 4 Mejra Singh, PW 5 Varinder Singh, PW 7 Pawan Abrol, PW 8 Davinder Pal and PW 9 Inspector Hardit Singh as witnesses.

06. PW HC Vijay Kumar has stated that on 07.04.2006 he was deployed at VIP gate and at 10 a.m. the accused came there and the attachi being carried by him was subjected to x-ray and he was informed that some ball like impressions were observed on x-ray machine. The brief case was opened with the help of the accused and three packets were found in it. PW Mejra Singh was also present there. He is witness to the docket sent for lodging the F.I.R., seizure memo and superdnama of the ring.

07. PW Mohd. Amin has also stated of his being deployed at the place of occurrence on 07.04.2006. The incharge opened the attachi of the

in CONCR No. 29/2017

accused in which ball like substance was observed when it was subjected to screening. He was informed of the charas by the incharge.

08. PW Prakash Sharma has stated that the three packets were weighed and found to be 7½ Kg in weight. The witness has denied the contents of superdnama though identifying his signatures on the same. As per the witness, he was called to the police station along with weighing scale and weights.

09. PW Mejra Singh was also deployed at VIP gate. As per the witness the luggage of the accused was subjected to x-ray machine and the witness was told by the officials that attachi contains some ball like material and four packets containing charas was found in them after the incharge Vijay Kumar opened the attachi. In cross-examination he has denied the knowledge as who had opened the attachi.

10. PW Varinder Singh has taken the photographs of the material marked as A, B, C & D. The negatives of the photographs are available at the crime branch headquarter.

11. PW Pawan Kumar Abrol has stated that he had received sealed packets sent by Dy SP Railways, Jammu, dated 10.4.2006 marked as A, B and C and he further exhibited the packets as P-1/2006, P-2/2006 & P-3/2006. On examination he found black coloured resinous material cylindrical in shape. The packets contained charas. The report No. 419 FSL dated 19.04.2006 is exhibited as ExtP-7.

12. PW 8 Davinder Pal Singh, Executive Magistrate, has stated that he re-sealed the packets A, B and C at Gho Manhasan in the capacity of Naib Tehsildar and had also issued an authorization letter (Ext. P-8) to the Director FSL, Jammu for opening the packets. He did not know the contents of the packets.

in CONCR No. 29/2017

13. PW 9 Inspector Hardit Singh has stated that he was posted as SHO GRP Police Station, Jammu and had registered FIR No. 7/2006 which is marked as ExtP-9. The witness has then deposed of the investigation carried in the matter which included the preparation of site plan exhibited as ExtP-9/1, seizure of three packets of cannabis vide seizure memo ExtP- 1/1 and recording of statement of witnesses. The material was recovered by PW Vijay Kumar before he arrived on the spot. He had shifted the seized cannabis to Police Station where the material remained for three days and got the same entered in malkhana record.

14. On the closure of prosecution evidence the statement of the accused was recorded in terms of Section 342 Cr.P.C wherein he denied the incriminating evidence produced against him. The accused did not lead evidence in defense.

15. The case of the prosecution is that on the day of occurrence the accused was carrying the briefcase which was subjected to screening. The briefcase was found to contain 7 ½ Kg of cannabis when opened by the security personnel deployed at VIP Gate, Railway Station.

16. The trial court while referring to the statements of PWs HC Vijay Kumar and Constable Mohd. Amin has held that the said witnesses had contradicted each other with regard to the fact as who had opened the attachi after the suspected material was observed during scanning as PW Vijay Kumar claimed that attachi was opened with the help of the accused, whereas, constable PW Mohd. Amin during examination has stated that the attachi was opened him by him and was not locked. The trial court has noticed the above said discrepancy in the statements of the witnesses which materially impacts the prosecution case and causes suspicion with regard to the manner in which the occurrence has taken place. Not only that, PW Mejra Singh who was also stated to be on spot has deposed during cross- examination that he has no knowledge as who had opened the attachi though initially stating that the PW Vijay Kumar had opened the attachi.

in CONCR No. 29/2017

The statement of this witness to that extent also dents the case of the appellant.

17. The trial court has also found the prosecution case vitiated on the ground that the investigating agency has not associated independent witnesses despite their availability at a place like railway station which is frequented by public and is a crowded place. It is well settled that where the independent witnesses are available but not associated with the investigation in a case of the present nature the same can knock out the prosecution case moreso when no explanation for not associating the independent witnesses is forthcoming in the case. The police agency by associating the independent witnesses during the investigation in NDPS case provides credibility to the investigation which is found wanting in the case in hand.

18. PW Prakash Sharma who can be stated to be independent witness in the case has brought the weighing scale along with the weights but only in the police station. The seizure memo of the articles seized, as per the witness, has taken place in the police station whereas the seizure is stated to have taken place on spot which again creates genuine suspicion with regard to the occurrence as projected by the prosecution.

19. As per the prosecution case, the seized material was in the shape of balls whereas PW 7 Pawan Kumar Abrol from FSL who examined the seized articles has stated that the material found in the packets contained blackish coloured resinous material cylindrical in shape. The trial court has noted the discrepancy with regard to the nature of substance which was allegedly seized from the attachi being carried by the accused and has held that either the sample had not been drawn from the seized article or the sample had been tampered. This court does not find fallacy in the reasoning of the trial court on this aspect of the matter. The provisions of NDPS Act are stringent and the prosecution is required to prove its case against the accused to the hilt.

in CONCR No. 29/2017

20. The safe custody of the material from the time it is seized till it reaches forensic laboratory for examination is imperative so as to rule out its tempering. PW Hardit Singh, SHO, has vaguely stated that the cannabis seized was kept in the malkhana for three days and the entry was made in the malkhana record. Notably, neither the incharge malkhana is produced in the court as witness nor the malkhana register showing the entry in the register is got proved during the course of trial. The contraband seized on 07.7.2006 is received in the laboratory on 10.4.2006 meaning thereby there is no proof on the record of safe custody of the article during the relevant period. The prosecution case fails on the said score also.

21. The findings given by the trial court for acquitting the respondent are well-reasoned and there is no perversity in appreciating the evidence brought on record. In the totality of the circumstances of the case, the court does not find any plausible reason to interfere with the judgment impugned in the present appeal. The appellant has failed to make out a case in the application filed for leave to appeal as the same is devoid of merits which is accordingly dismissed. The application filed for condonation of delay is also dismissed.

                                                   (Puneet Gupta)                       (Tashi Rabstan)
                                                            Judge                                Judge
               Jammu
               09.08.2021
               Muneesh




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




MUNEESH SHARMA
2021.08.13 13:50
I attest to the accuracy and
integrity of this document