State Of J&K vs Tarsem Raj And Others
2021 Latest Caselaw 229 j&K

                                                                           205
               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                                                    SLA No. 133/2016
                                                    in
                                                    CONCR No. 125/2016

State of J&K                                      .....Appellant(s)/Petitioner(s)
               Through :- Mr. Aseem Sawhney, AAG
                        V/s
Tarsem Raj and others                                        .....Respondent(s)

               Through :- None

CORAM :

        HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
        HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                  ORDER

03.03.2021

Tashi Rabstan-J

1. By way of this condonation application, the appellant is seeking to

condone the delay of 113 days in filing the above titled Criminal

Acquittal Appeal against the judgment dated 20.04.2016 delivered by

the learned 1st Additional Sessions Court, Jammu (Special Court

Under NDPS Act), whereby the prosecution case against the accused

No. 1 Balwant Raj and the accused No. 3 Paramjeet Singh, due to

their death during trial was abated and the accused Nos. 2 Tarsem Raj

and 4 Uttam Singh were acquitted of the charge. Along with the

application for condonation of delay, the appellant has also filed SLA

No. 133/2016 seeking leave of the Court to file the appeal.

2. Prosecution case in brief as emerging out from the perusal of the

record is that on 17.10.1995, SDPO Gandhi Nagar, Jammu sent a

written dispatch from Peer Baba Bahu Rakh to the Police Station that

in CONCR No. 125/2016

on an information received on wireless from the In-charge Naka Party,

HC Dharam Chand of Police Post Bagh-a-Bahu, who was deployed

there along with constables Dwarka Dass and Tarsem Raj that one

Balwant Raj alias Balwanta S/o Angrezoo Saryara R/o Kacha Talab

Bahu Fort Jammu, had been apprehended, from whose possession two

packets of opium had been recovered. He seized those packets and

samples were drawn and sealed. Balwant Raj disclosed that he had

purchased those opium packets from Tarsem Raj S/o Des Raj R/o

Manda Jammu and Paramjeet Singh S/o Maan Singh R/o Gurha

Bakshi Nagar, who had come to Bawa Basti Bahu Fort for the sale of

the opium which was under their possession and punishable under

sections 20 & 27 of NDPS Act were found to have been committed.

The dispatch was sent for registration of the case and the investigation

was assigned to SI Kamaljeet Singh. On receipt of this dispatch, a case

was registered at P/S Bahu Fort Jammu vide FIR NO: 253/1995 for

the commission of offences punishable under sections 20/27 of NDPS

Act.

3. Before dealing with the application for condonation of delay, we deem

it appropriate to examine the judgment delivered by the learned 1 st

Additional Sessions Court, Jammu (Special Court Under NDPS Act)

to find out as to whether or not any interference is warranted

therewith, so that injustice may not occasion merely because of lapse

on the part of the appellant-State in filing the appeal within the

prescribed period of limitation.

4. The prosecution has examined as many as 18 witnesses. The

Prosecution Witness Nos. 1 HC Dharam Chand, 2 Constable Tarsem

in CONCR No. 125/2016

Raj and 3 SGC Dwarka Dass were members of the Naka party

deployed near Peer Baba Rakh Bahu from Police Post Bahu Fort on

17.10.1995 and they all had stated that accused No.1 Balwant Raj was

detained at Naka and opium was found in his possession, as such, In-

charge Naka Party flashed a wireless message in this respect and that

officer In-charge Police Post Bahu PW Kamaljeet Singh and SDPO

Gandhi Nagar PW17 Hemant Kumar Lohia reached on spot after

receiving massage and during search of the accused opium weighing

1.830 Kg was recovered from the detained Balwant Raj and that on

his disclosure which was admittedly not recorded, accused no.2

Tarsem Kumar and accused no.3 Paramjeet Singh were arrested from

Bagh-e-Bahu park on the same evening on his identification in

presence of the prosecution witnesses 1 to 9 and 17 to 18. PW4 Ct.

John Khunja, PW5 Ct. Thakur Dass and PW6 SGC Ahmed Din had

accompanied PW18 SI Kamaljeet Singh, In-charge Police Post Bahu,

whereas, PW 7 Ct. Jameet Singh and PW9 Ct. Ashok Kumar had

accompanied PW 17 Hemant Kumar Lohia SDPO Gandhi Nagar and

all of them stated that recoveries and seizures were made from

accused Nos. 1 to 3 on the same evening in their presence and also at

the instance of accused No.4 Uttam Singh later on. PW12 M.K. Abrol

stated that the seized Van had been seized by him as SHO, P/S

Ramgarh on 19.10.1995 lying unclaimed vide seizure memo (EXPW-

MK) and the same was further seized by Jammu police in this case on

20.10.1995. He, however, stated that nothing incriminating had been

seized from Van when it was checked before its seizure. PWs 13

Mohan Lal, 14 Janak Singh and 15 Mangat Ram Duggal are all the

in CONCR No. 125/2016

Executive Magistrates who have stated that they had re-sealed the

sealed packets and issued certificates in this behalf and authorized

FSL for chemical analysis of the samples. PW 17 Hemant Kumar was

SDPO Gandhi Nagar and in whose presence, accused were alleged to

have been searched, recoveries were made and seizures were

conducted. He, however, further could not say as to where accused

Uttam Singh made disclosure, in his office or at Police Station. PW18

Kamaljeet Singh who had investigated the case has stated that on the

search of all the accused at different places, opium was recovered and

seized in presence of PW 17 Hemant Kumar who was a Gazetted

Officer after seeking option of search from the accused. However,

there is nothing on record to suggest that any option as required by

law was sought from any of the accused, disclosing them that they had

right of being searched either in presence of Magistrate or a Gazetted

Officer.

5. The trial Court in the judgment has observed that the standard of proof

should be equally higher in the case. It was incumbent upon the

prosecution to prove that they had observed the mandatory provisions

of Section 42 with regard to reducing into writing the information

received by them, Section 50 with regard to providing option of search

to the accused and Section 57 to inform the superior officers of the

information reduced into writing in terms of Section 42 of NDPS Act,

however, the prosecution in this case has failed to sufficiently prove

these aspects of the case.

6. The trial Court further observed that almost all the prosecution

witnesses from the police have stated that despite availability of the

in CONCR No. 125/2016

Independent witnesses at all the places of search and seizure no

civilian was associated with these proceedings. PW18 Kamaljeet

Singh though tried to justify that civilian witnesses were reluctant to

give the statement, but failed to say as to what effort he had made in

this behalf. He stated that it was legally prudent to cite only constables

as witnesses to the seizures and supurdnamas.

7. From the statement of prosecution witnesses available on record it is

revealed that the Investigating Officer had admitted that the seized

packets of the contraband had been kept lying at Malkhana for 15-16

days and had failed to place on record the entries with regard to

keeping the contraband in the malkhana or taking out from there

including samples, so the apprehension of the samples being not

tampered for such a long time cannot be ruled out as Magistrate has

also stated that some of the seals did not tally with the impression of

the seal.

8. Accused No.2 Tarsem had examined Mohan Lal, Tilak Raj and

Joginder Pal his neighbourers, as defence witnesses who have stated

that accused Tarsem was arrested by the police from his home at

Marh. With regard to accused no.4 Uttam Singh, some of the

witnesses who have been cited as eye witnesses have stated that he

was found sitting near Tawi Lift Irrigation Pumping House situated at

Bagh-e-Bahu, whereas prosecution case is that he had been arrested

from Bus Stand, Jammu. Therefore, the disclosures, recoveries and

seizures also become doubtful besides the option of search not being

in consonance with the law.

in CONCR No. 125/2016

9. The FSL Report was submitted and the same was placed on file but

the prosecution has not examined the FSL Expert in the case who

could be a witness to say that seized contraband was

narcotic/psychotropic substance or not. Without examination of the

Analyst and without giving opportunity to the accused to cross-

examine, the report cannot be admitted into evidence with being

proved. Thus, there being no evidence as to what was the seized

substance, the case cannot be said to have been proved so as to record

conviction.

10. It is well settled in law that this Court while hearing an acquittal

appeal can re-appreciate the evidence, however, it should not interfere

with the order of acquittal if the view taken by the trial Court is a

reasonable view of the evidence on record and the findings recorded

by the trial Court are not manifestly erroneous, contrary to the

evidence on record or perverse. [See Ram Swaroop and others vs

State of Rajasthan, (2002) 13 SCC 134; Vijay Kumar vs State by

Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs

State of Orissa, (2015) 11 SCC 124].

11. Viewed thus, we are in agreement with the observation made by the

learned trial Court that the prosecution has miserably failed to bring

home the charge against the accused. As such, we are of the

considered opinion that the acquittal of respondents is well-merited

and needs no interference.

12. So far as the application seeking to condone the delay in filing the

Criminal Acquittal Appeal is concerned, a perusal of the file reveals

in CONCR No. 125/2016

that there is 113 days delay in filing the appeal. The judgment

impugned came to be delivered on 20.04.2016. In the application, the

State has not mentioned as to when it had applied for obtaining

certified copy of the judgment. It is revealed that sanction to file the

appeal was given on 09.08.2016 and the appeal came to be filed only

on 18.11.2016. The applicant has failed to give any cogent reason for

this delay, let alone explain day-to-day delay in filing the appeal.

Delay in filing appeal after the statutory period of limitation

prescribed cannot be condoned as a matter of course. The party

seeking condonation of delay was required to satisfy the Court that

there was sufficient cause justifying condonation of delay. Merely

saying that the delay was on account of procedural aspect, is not

sufficient cause to condone the delay. The Hon'ble Supreme Court in

SLP (Civil) Diary No(s).19846/2020 titled as Union of India Vs.

Central Tibetan Schools Admin & Ors., decided on 04.02.2021 while

dismissing it on account of delay observed as under:-

"We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary

in CONCR No. 125/2016

effect and that the present matter should have been brought up, really takes the cake!

The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No.22605/2020 decided on 11.01.2021]...."

13. The application, therefore, does not deserve to be allowed on its own

merits. Accordingly, CONCR No.125/2016 is dismissed.

14. Consequently, Criminal Acquittal Appeal along with SLA

No.133/2016 shall stand dismissed.

                                             (Vinod Chatterji Koul)            (Tashi Rabstan)
                                                     Judge                         Judge
            JAMMU
            03.03.2021
            Pawan Angotra

                                                           Whether the order is speaking? : Yes
                                                           Whether the order is reportable? : Yes


PAWAN ANGOTRA
2021.03.10 10:49
I attest to the accuracy and
integrity of this document