State Of J&K vs Abdul Rashid Bhat
2021 Latest Caselaw 698 j&K

                                                                  S. No. 208
              HIGH COURT OF JAMMU AND KASHMIR
                            ATJAMMU

                                               SLA No. 33/2015

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

                   Through :- Mr. Bhanu Jasrotia, GA
                  v/s
                   <




Abdul Rashid Bhat
't
                                                             .....Respondent(s)

                  Through :- None


Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                     ORDER

1. There is delay of 147 days in preferring appeal against the order of

acquittal passed by the trial court, as such, this application has been filed for

condoning the said delay. Learned Principal Sessions Judge Rajouri has passed

said order of acquittal on 31.07.2014 in FIR No. 182/2006, punishable under

sections 21/22 NDPS Act. The appellant has also filed application seeking leave

to file appeal.

2. Condonation of delay is sought on the ground that after the receipt

of the copy of the judgment, record of the case was called and examined at

different levels for implementation or otherwise of the judgment and the matter

itself after examination at different levels with reference to the record was finally

referred to the Law Department along with record of the case for its examination

and opinion. The Law Department, after examining the judgment in light of the

record of the case, advised to file appeal vide communication dated 31.12.2014.

On receipt of the communication from the Law Department, appellant contacted

his counsel and steps for drafting the appeal were taken and finally it is stated

that there is neither deliberate nor intentional delay but delay has occasioned

because of the circumstances detailed above.

3. From the own showing of the appellant, the communication from the

Law Department was received on 31.12.2014 and even thereafter the appeal has

been filed on 26.03.2015. It has taken about three months in filing the appeal.

The grounds for delay are stated in para no. 2. There is no specific reason shown

that the steps which were required to be taken by the appellant were taken

immediately after the judgment was passed on 31.07.2014. The judgment has

been passed in presence of the learned public prosecutor that means that the

appellant had knowledge of passing the judgment whereby the accused have been

acquitted.

4. Nothing has been stated as to what was done from 31.07.2014 till

the filing of the appeal. It is nowhere stated and shown as to when the copy of the

judgment or the record was submitted before the authority and it was the

authority which examined the case and after examination when the case was

forwarded to Law Department. The grounds taken in this application are vague.

5. It is true that while dealing with an application for seeking

condonation of delay, court should also have a glance on the merits of the case as

a meritorious case should ordinarily not fail because of slackness on the part of

the appellant and on account of the delay. So just for considering this application

for delay and whether merits of the case warrant condonation of delay or not,

certain facts may be relevant to consider as to whether there is merit in the appeal

or not so that the condonation of the delay may be warranted.

6. In this case, as per the prosecution on 22.06.2006 while SI Ajit

Singh along with other police personnel were on patrolling, he received an

information that accused Abdul Rashid is dealing in charas and other intoxicated

substances and is spoiling the life of the youngsters by selling the same to them.

He was informed that the said person was in possession of the charas. It is stated

that in presence of Dy. SP, search on shop (hotel) was conducted and from the

wooden counters 195 grams of charas was found which was seized out of which

50 grams of charas was separated as sample for sending the same to FSL and two

packets were prepared. Accused-respondent was arrested and report was sent to

the police station on the basis of which FIR No. 182/2006 under Sections 22/27

of NDPS Act was registered. Two investigating officers namely SI Ajit Singh

and ASI Mohd. Khadam Malik have conducted investigation in this case. None

of them have been examined.

7. The case of the police is that the information was received by SI Ajit

Singh but there is no record or the evidence on the record that on receiving the

information he reduced the same into writing and then forwarded the same to the

higher officials for information as was required under Section 42 of the NDPS

Act. Evidence would also reveal that the prosecution or the investigating officer

has not placed on record the fact that after the contraband was recovered, the

sample was separated, the sample or the contraband was kept in safe custody

before it was got resealed or sent to FSL.

8. The material was sent to the FSL after expiry of 03 days, so

evidence was required to be produced by the prosecution to establish that there

was no chance of the sample having been tampered. It was required to be kept in

safe custody but there is no proof with regard to this. It is stated that the sample

and the contraband was sealed as per the prosecution. The seal with which it was

sealed had been as per the superdnama EXTP-9/1 put on superdnama on

03.07.2006 which shows that from the date when the sample was sealed till

03.07.2006, it was with the police. The seal was required to be kept on the

superdnama of the persons immediately after it was sealed in order to prevent the

sample being tampered with.

9. The apprehension that the sample has been tampered cannot be ruled

out as neither there is any evidence with regard to the fact that the sample was in

safe custody nor there is any evidence that immediately after sealing the ring

with which it was sealed was put on superdnama of a person from whom it could

not have been taken back by the IO or any other police person. It is not stated

anywhere where the ring was kept from 22.06.2006 to 03.07.2006. The statement

of the witnesses also would show that witnesses have given different version

with regard to the weight of the sample.

10. The aforesaid infirmities in the investigation would vitiate the trial

and therefore, the same entitles the accused to the acquittal. Having regard to the

facts and circumstances of the case, the evidence recorded and the merits of this

appeal, I do not find any ground warranting condoning the delay in filing the

appeal, the application seeking condonation of delay is as such, dismissed.

11. Therefore, application seeking leave to file appeal as well as appeal

is dismissed as time barred.

(VINOD CHATTERJI KOUL) JUDGE JAMMU 12.07.2021 SUNIL-I

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