State Through Sho P/S Gandoh vs Shabir Ahmed And Another
2021 Latest Caselaw 627 j&K

S.no. 209                     HIGH COURT OF JAMMU AND KASHMIR
After Notice
Cause List                                AT JAMMU
                                   (Through Video Conferencing from Srinagar)
                                                  ...
                                         SLA no.83/2014
                                        CRAA no.75/2014
        State through SHO P/S Gandoh                                      ....... Appellant(s)
                                                   Through: Mr Sunil Malhotra, Advocate
                                               Versus
        Shabir Ahmed and another                                  .........Respondent(s)
                                                   Through: Mr S.M.Wajahat, Advocate

        CORAM:
                       HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                          JUDGEMENT

28.06.2021 SLA no.83/2014

1. Application, taking into consideration averments made therein, is

allowed and leave to file Appeal is granted. SLA disposed of

2. Appeal is taken on board.

CRAA no.75/2014

3. This Appeal is directed against judgment dated 4 th December 2013, delivered by learned Sessions Judge, Bhaderwah (for short "Sessions Judge" in Challan File no.36/Spl.Challan, titled State v. Shabir Ahmed and another, acquitting respondents-accused of charges under Sections 8/20 NDPS Act.

4. It is the case of appellant that on 19th January 2008, SHO P/S Gandoh

along with police personnel had laid a Naka in Butt Market, Gandoh,

where accused were frisked and from possession of accused Shabir

Ahmed a polythene bag containing 24 balls of charas of different size

weighing 100 grams approximately were recovered whereas from

possession of accused Mohammad Yaqoob, charas weighing 50 grams

in the shape of balls lying in polythene bag was recovered. FIR

no.7/2007 was, accordingly, registered. It is contended that during

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investigation, SHO seized charas and took out samples of 05 grams

each from both the recoveries and prepared parcels, which were sealed

and after getting them resealed through Magistrate, sent them to FSL,

Jammu, for chemical analysis. The charge sheet was presented before

learned Sessions Judge. On 7th June 2007 charge under Section 8/20,

NDPS Act, was framed against accused-respondents, to which they

pleaded not guilty.

5. The grounds of challenge in the Appeal on hand are that impugned

judgment is against law and facts of the case; that there is sufficient

material on record to convict respondents but learned Sessions Judge

has not appreciated law and facts of the case; that prosecution had

established the case against respondents by adducing documentary as

well as oral evidence which in ordinary course of nature is sufficient to

guilt respondents; that respondents willfully and intentionally

committed crime for which they deserve to be punished; that learned

Sessions Judge failed to appreciate prosecution evidence in its true and

correct perspective and important pieces of evidence have been ignored

and that impugned judgement is based on surmises and conjectures; that

learned Sessions Judge has taken hyper technical approach and the

direct and circumstantial evidence have sufficiently proved guilt of

respondents.

6. It may be mentioned here that the prosecution, before learned Sessions

Judge, in support of its case produced eight witnesses, namely, Atta

Mohammad, Hoshiar Singh, Mohammad Ayub, Nazoor Ahmed, Majid

Ayaz, Naresh Kumar, Farooq Ahmed and Pawan Abrol. Prosecution

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witness, Atta Mohammad, in his statement deposed that on 19th January

2007, he along with constables Hoshiar Singh and Ismail, accompanied

SHO to village Gwari, where accused were searched on the way and

from their possession one polythene bag, each containing charas was

recovered. During cross-examination, he stated that seizure memos

were prepared in police station and the place where accused were

searched is a busy place, open to human traffic and that no civilian was

called on spot at the time of search. Prosecution witness, Hoshiar Singh,

also stated during cross examination that SHO did not give option of

being searched in presence of somebody to the accused and recovery

was made at Butt Market, which is a busy place and no civilian was

called on spot at the time of search and that seizure memos were

prepared in police station. Prosecution witnesses, namely, Mohammad

Ayub, Nazoor Ahmad, and Majid Ayaz, stated that they have no

knowledge about occurrence and they were declared hostile and

prosecution cross-examined them, but nothing concrete could be

extracted from them. Prosecution witness, namely, Naresh Kumar,

stated that in the year 2007, he was posted as Tehsildar Gandoh and

SHO P/S Gandoh came to him with two sealed packets for the purposes

of reseal and he resealed the packed and prepared an authority letter in

favour of Director, FSL, Jammu. Prosecution witness, Pawan Abrol,

Scientific Officer, stated that on 31st January 2007, he received two

sealed packets forwarded by SDPO, Bhaderwah, through ASI Babu

Ram, and on putting the samples on chemical tests, microscopical and

chromatographic examination, were identified as charas. Prosecution

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witness, namely, Farooq Ahmed, stated that in the year 2007, he was

posted as SHO P/S Gandoh and on 19th January 2007, during search of

accused, he recovered charas from their possession, which was sent to

FSL, Jammu. During cross examination, he stated that he sent detail of

seizure to his superior officers but the record is not on the file and that

he sealed seized articles on spot and used a ring as mark of

identification, but he did not remember where he kept the ring used for

sealing the packets and that charas was not weighed.

7. Learned Sessions Judge vide order dated 3rd July 2012 closed

prosecution evidence. On 8th September 2012, accused were examined

under Section 342 Cr.P.C. Accused produced witness, namely,

Mohammad Abbass, before learned Sessions Judge on 19th January. He

stated that police picked up accused from their respective residences

and were extracting information about terrorist and accused told police

that they had no knowledge about terrorists and on this basis, police

framed the accused in the false case.

8. As may be seen from the above, prosecution witnesses, namely, Atta

Mohammad and Hoshiar Singh, witness to the occurrence are police

personnel and, in their statement, they have nowhere stated that samples

were taken out from seized charas and parcels were prepared and sealed

on spot. They have stated that seizures memos were prepared in police

station, thereby belying the statement of I.O. There is no evidence to

show how charas was weighed and wherefrom weights and measure

were brought. On the other hand, I.O. has stated that charas was not

weighed. He showed ignorance about the ring which he stated to have

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used at the time of sealing of charas. Other three prosecution witnesses,

namely, Mohammad Ayub, Nazoor Ahmed and Majid Ayaz Wani, are

civilians and they turned hostile and, therefore, have not supported

prosecution case. In such circumstances, discrepancies, and rightly so,

have been found by learned Sessions Judge in prosecution evidence,

thereby creating doubts in the prosecution story as to recovery, weight

and seal of contraband. While rendering the impugned judgement, after

discussing the facts and circumstances of the case, the learned Sessions

Judge has rightly discussed the law laid down on the subject-matter.

The impugned is comprehensive and elaborate, and the learned

Sessions Judge has taken care of all the aspects of the matters.

Reproduction of section 42(2), NDPS has also been made by Trial

Court, which provides that empowered officer, who takes down any

information in writing or record, the grounds under proviso to Section

42(1), NDPS Act, should forthwith send a copy thereof to his

immediate official superior and if there is total non-compliance with

this provision, the same would adversely affect the prosecution case

and to that extent it is mandatory. If there is delay, whether it was undue

or whether the same has been explained or not, will be a question of

fact in each case and it is to be concluded that mandatory enforcement

of provisions of Section 41 of the Act, non-compliance with which may

vitiate a trial, has been restricted only to the provisions of sending a

copy of the information written down by empowered officer to the

immediate official superior and not to any other condition of the

section. Section 50 of the Act says that when any officer duly

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authorized under Section 42 is about to search any person under the

provisions of Section 41, 42 or 43, he shall if such person so requires,

take such person without unnecessary delay to the nearest gazette

officer of any of the departments mentioned in Section 42 or to the

nearest magistrate. It has been found by learned Sessions Judge that

inventory of seized articles as required under law was not prepared,

which reflects non-compliance of Sections 52-A, 55 and 57, NDPS Act.

In that view of matter, impugned judgement does not call for any

interference and as a consequence of which, the Appeal is liable to be

dismissed.

9. For the reasons discussed above, the instant Appeal is dismissed with

connected CM(s). Interim direction, if any, shall stand vacated. The

judgement dated 4th December 2013, passed by learned Sessions Judge,

Bhaderwah in Challan File no.36/Spl.Challan, titled State v. Shabir

Ahmed and another, is upheld.

10.The record of the learned Sessions Judge, if summoned/received, along

with copy of this judgement be sent down.

(Vinod Chatterji Koul) Judge Jammu 28.06.2021 Ajaz Ahmad, PS Whether approved for reporting? Yes/No