Ali Mohd vs State Of J&K And Others
2021 Latest Caselaw 275 j&K

       HIGH COURT OF JAMMU AND KASHMIR AT JAMMU




                                                CRA No.31/2008
                                                And
                                                CRA No. 30/2008

                                             Reserved on : 25.02.2021
                                              Pronounced on : 09.03.2021


Ali Mohd                                                    ...Appellant(s)

            Through:- Mr. Sunil Sethi, Sr. Advocate with
                      Mr. Ankesh Chandel, Advocate in CRA 31/2008.
                 V/s

State of J&K and others                                 ...Respondent(s)
            Through:- Mr. Jamrodh Singh, GA.

Mukhtar Ahmed                                               ...Appellant(s)

            Through:- Mr. P. N. Raina, Sr. Advocate with
                      Mr. J. Hamal, Advocate in CRA 30/2008.
                 V/s

State of J&K and others                                 ...Respondent(s)
            Through:- Mr. Jamrodh Singh, GA.


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                 JUDGMENT

Sanjeev Kumar-J

1. These two appeals, one filed by Ali Mohd the driver and the other

by Mukhtar Ahmed, the conductor of the Truck, wherefrom the alleged

contraband was seized, are directed against the judgment of conviction and

order of sentence passed on 28.11.2008 by learned Sessions Judge, Ramban

[the trial Court] in File No. 15/C titled State vs. Ali Mohd and another. The

CRA Nos. 31 & 30 of 2008

trial Court has convicted both the appellants for offences under Section 20 (b)

(ii) (C) read with Section 29 of the Narcotics Drugs and Psychotropic

Substances Act, 1985 ( hereinafter „the NDPS Act‟) and has sentenced both to

undergo Rigorous Imprisonment for a period of 12 years and a fine of ₹ 2 lacs

each. In case of default in payment of fine the appellants have been directed to

undergo further rigorous imprisonment for a period of one year.

2. Before we advert to the grounds of challenge urged to assail the

impugned judgment, it is necessary to first give brief resume of the prosecution

case.

3. As per prosecution, on 24.09.2006, Constable Altaf Hussain

presented a docket in Police Station Chanderkote for registration of FIR. As

per the docket, Sachinder Pal Singh, PSI along with SHO Ghulam Hussain,

Constable Altaf Hussain, Parkash Chand, Abdul Wahid, SPO Ravi Kumar and

Dharam Paul had laid a Naka near Makhan Dhaba on National Highway at

Chanderkote. While checking of traffic was going on, at 9.45 P.M one Truck

bearing Registration No. JK02C-9873 driven by appellant Ali Mohd came

from Srinagar and was proceeding towards Jammu. The Truck was ordered to

be stopped but the driver ignored the signal and tried to run away. The vehicle

was chased and stopped near the market in Chanderkote. On checking, one

white plastic bag containing suspected contraband was recovered from near the

driver seat. On enquiry, appellant Ali Mohd informed that it contained

„Charas‟. On the information given in the docket, FIR 67/2006 for offences

under Sections 8/20 of the NDPS Act was registered in Police Station

Chanderkote. During the course of investigation, the Investigating Officer, i.e.

SHO Nazir Ahmed Dar, prepared the site plan and various seizure memos. The

contraband item was seized and was weighed with the help of weighing

CRA Nos. 31 & 30 of 2008

machine belonging to one Gurdev Singh, the owner of Makhan Dhaba. The

contraband item was found to be weighing 8 kg and 700 grams. From the

seized contraband, two samples of 60 grams and 40 grams each were taken and

sealed in two packets marked as „C‟ and „B‟ respectively. The rest of the

contraband, weighing 8 kg and 600 grams was separately sealed and marked as

„A‟. The packet weighing 60 grams i.e. the packet marked as „C‟ was sent to

Forensic Science Laboratory („FSL‟) whereas sealed packet marked as „B‟

weighing 40 grams was sent to the area Magistrate. The third packet marked as

„A‟ was sent to the Malkhana after being sealed on spot and then being

resealed in the presence of the Executive Magistrate, Batote. The ring used for

sealing of samples was given on superdnama of Gurdev Singh, the owner of

Makhan Dhaba. On the basis of opinion of the FSL, the contraband item was

confirmed to be „Charas‟ and, therefore, the investigation was concluded as

proved against the appellants and accordingly a charge sheet for offences

under Sections 8/20/29 NDPS Act and Section 3/181 of the Motor Vehicles

Act was laid before the trial Court.

4. To prove its case, the prosecution examined PW1-Sachinder Paul

Singh, PW2- Ghulam Hussain, PW3 Mohd Yasin, PW4-Zahoor Hussain,

PW5- Abdul Gani, PW6- Surjeet Singh, PW7-Altaf Hussain, PW8-Mohd

Yousaf, PW9- Abdul Rashid Rather, PW10- Abdul Wahid, PW11- Pawan

Abrol and PW12- Nazir Ahmed Dar. On the closure of the prosecution

evidence, the incriminating circumstances appearing against the appellants

were put to them and their statements under Section 342 Cr.P.C were recorded.

The appellants took the plea that no illicit drug had been recovered from the

truck and that the prosecution witnesses were lying and had framed them in a

false and frivolous case. The trial Court heard the arguments of the learned

CRA Nos. 31 & 30 of 2008

Public Prosecutor and the learned counsel for the accused and, after analyzing

the evidence on record, came to the conclusion that the prosecution had

sufficiently proved the recovery of the contraband item from the possession of

the appellants and the samples drawn from the seized item, on chemical

examination, were found to be „charas‟, and, therefore, it was proved beyond

any shadow of doubt that both the appellants were in conscious possession of

the contraband and had, therefore, committed the offence under Section 20 (b)

(ii) (C) read with Section 29 of the NDPS Act. After affording opportunity of

being heard to the defence counsel as also to the Public Prosecutor with respect

to quantum of sentence, the trial Court imposed the sentence of 12 years

rigorous imprisonment and a fine of ₹ 2 lacs each on the appellants.

5. The appellants have filed two separate appeals though they have

been convicted and sentenced by a common judgment passed on common

evidence. The impugned judgment of conviction and the order of sentence has

been assailed by the appellants primarily on the ground that, having regard to

the nature of evidence that has come on record during the trial, it is difficult,

nay impossible, to conclude that recovery of any contraband item was effected

from the possession of the appellants. It is argued that in view of serious

contradictions in the statements of the prosecution witnesses, there is no link

established between the alleged contraband recovered from the appellants and

the sample subjected to chemical examination by the FSL/ It is submitted that

in view of glaring contradictions in the statements of the prosecution

witnesses, the link evidence is incomplete and it is difficult to show with

certainty that the sample which was subjected to chemical examination by the

FSL was the one drawn from the alleged contraband actually recovered from

the possession of the appellants.

CRA Nos. 31 & 30 of 2008

6. Mr. Sunil Sethi, learned senior counsel appearing for the

appellant- Ali Mohd, would argue that there are serious contradictions in the

statements of the prosecution witnesses which go to the root of the prosecution

case. He laid great emphasis on the following contradictions:-

(i) That there is contradiction with regard to the actual place

from where the recovery of the contraband has been affected. He

submits that as per PW-Sachinder Paul Singh, the white plastic

bag containing contraband was recovered from near the driver‟s

seat, whereas, as per PW-Ghulam Hussain and PW- Altaf Hussain

it was found behind the driver‟s seat. Yet another PW- Mohd

Yasin has stated that it was recovered from the cabin of the Truck.

(ii) That there is serious contradiction with regard to sealing of

the samples by the Executive Magistrate- PW9- Abdul Rashid

Rather. Some of the witnesses have stated that the Executive

Magistrate was present on the spot whereas some of the

prosecution witnesses, including the Executive Magistrate

himself, has stated that the samples were presented before him at

Batote for re-sealing. It is thus submitted that even the re-sealing

by the Magistrate is doubtful.

(iii) That there is serious contradiction with regard to resealing

and sending of the sealed item for chemical examination. As per

PW9- Abdul Rashid Rather Executive Magistrate, the sealed

packet was presented before him for re-sealing on 24.09.2006

when he, vide letter No. 485/NB dated 24.09.2006 sent the same

to the FSL for chemical examination. He has also stated that the

resealed packet was sent to FSL through Constable Ghulam

CRA Nos. 31 & 30 of 2008

Hussain. However, PW-11, Pawan Abrol, in his statement has

deposed that he received the sealed packet from Contable Surjeet

Singh which was forwarded to him by Dy. S.P. DAR, Ramban

along with the specimen seal impression on 31.10.2006.

However, during his cross examination, the witness has stated that

as per the certificate, the sample was sent to him on 26.09.2006

and the same was received by him on 29.09.2006. It is thus

pointed out that it is doubtful as to whether the sample, which was

allegedly sealed by the Investigating Officer on spot and resealed

by the Executive Magistrate had ever reached the FSL.

7. Having heard the learned counsel for the parties, perused the

judgment and examined the evidence on record, we are of the view that the

prosecution has failed to bring home the guilt of the appellants beyond

reasonable doubt.

8. With a view to prove the offences with which the appellants had

been charge sheeted, it was incumbent upon the prosecution to prove beyond

reasonable doubt the following factors:-

(i) That the recovery of the alleged contraband was effected

from the possession of the appellants, it could be actual or

constructive possession;

(ii) That the samples taken out of the seized material were

sealed and re-sealed in a manner leaving no scope for their

tempering or replacement;

(iii) That the item, which was subjected to chemical

examination in the FSL and was found to be contraband,

CRA Nos. 31 & 30 of 2008

was the same as was seized/recovered from the possession

of the appellants.

9. In the instant case, when we carefully analyzed the statements of

the prosecution witnesses, particularly PW Sachinder Paul Singh, who, along

with other witnesses, had searched the vehicle and found the alleged

contraband in a white plastic bag hidden near the driver‟s seat, we find that the

prosecution has succeeded in proving that a white plastic bag containing

suspected contraband was recovered from the possession of the appellants,

minor contradictions here and there in the statements of the prosecution

witnesses notwithstanding. PW1- Sachinder Paul Singh, PW7- Altaf Hussain

and PW -2, Ghulam Hussain, have unequivocally stated that the alleged

contraband was recovered near/behind the driver‟s seat. However, PW3- Mohd

Yasin in his statement refers to the recovery having been made from the Cabin

of the vehicle. It needs to be borne in mind that the driver‟s seat is in the Cabin

of the Truck and recovery whether it is from behind the driver‟s seat or from

near the driver‟s seat does not make any difference and could be two different

ways of expression of same thing or situation. Such minor contradictions are

not sufficient to discredit the otherwise consistent version of the prosecution

witnesses. We are not in agreement with Mr. Sethi that the contradictions with

regard to actual place of recovery of the alleged contraband are so serious as

would knock the very basis of the prosecution case. We also do not wish to

attach too much importance to the contradictions in the statements of the

prosecution witnesses with regard to the place where the Executive Magistrate

actually resealed the samples. It is true that in the statement of some of the

prosecution witnesses it has come on record that the Magistrate was called on

CRA Nos. 31 & 30 of 2008

the spot for resealing of samples but the Magistrate, in his statement, has

categorically stated that it was presented to him by the Police at Batote. To the

similar effect is the testimony of the Investigating officer, who, in his

deposition, has stated that resealing was got done by the Executive Magistrate

Batote on 26.09.2006 i.e. two days after the occurrence when the seizure was

effected.

10. It is thus held that, notwithstanding the minor contradictions here

and some discrepancies there in the statements of the prosecution witnesses,

the prosecution has succeeded in proving that the alleged contraband was

recovered from the possession of the appellants. However, the appellants

cannot be connected with the offence unless it is also proved by the

prosecution that the seized item is a contraband item, possession whereof is

culpable under the NDPS Act.

11. The trial Court has failed to notice that a very important witness

in the case, namely, Gurdev Singh, owner of Makhan Dhaba who had weighed

the alleged contraband and on whose superdnama the ring used for sealing the

sample was kept, has neither been cited as prosecution witnesses nor examined

before the trial Court. It is also not forthcoming from the evidence of the

prosecution as to whether the ring, which was used to seal the samples, was

forwarded to the Executive Magistrate when he resealed the samples. There is

also a major contradiction as to whether the sample, which was re-sealed by

the Executive Magistrate and sent to the FSL through Constable Ghulam

Hussain, was actually received by the FSL for chemical examination. As a

matter of fact, the statement of PW-11 Pawan Abrol clearly points to the fact

that what was subjected by him to the chemical examination was the product

CRA Nos. 31 & 30 of 2008

received by him in the shape of sample forwarded to him by the Dy. S. P. DAR

through Constable Surjeet Singh. It is thus not understandable as to where the

sample, which was re-sealed by the Executive Magistrate, has gone and which

was the sample forwarded by Dy. S.P. DAR, Ramban, to FSL. So far as the

testimony of PW-11 Pawan Abrol is concerned, he claims to have received the

sealed packet sent to him by Dy. S.P., DAR, Ramban through Constable

Surjeet Singh, which, as per the witness, was sent by the Dy. S.P on

27.09.2006 and received by him on 29.09.2006. He also claims to have

received a letter of the Executive Magistrate dated 26.09.2006 but claims that

he has not given his opinion in response to the aforesaid letter.

12. As per the statement of the Investigating officer, in all three

samples were prepared i.e. „A‟, „B‟ and „C‟. Out of the three packets prepared

by him, one was sent to the Magistrate for re-sealing and other two were

deposited in the Malkhana. If that be the true position, than it is not

forthcoming as to which of the sample was with the Dy. S.P., DAR, Ramban,

which he forwarded to the FSL through Constable Surjeet Singh. Interestingly,

neither the Malkhana register has been produced nor the in-charge Malkhana

has been produced as a witness.

13. Going by the nature of evidence, which has been led by the

prosecution, it is very difficult rather impossible to conclude that the

contraband, which was subjected to chemical examination by the FSL and was

found to be „charas‟, was the same as was recovered by the police on spot

from the possession of the appellants. The link evidence is, therefore,

incomplete. This aspect has not been considered by the trial Court and the

conviction has been based only on the ground that the prosecution had

CRA Nos. 31 & 30 of 2008

sufficiently proved the recovery of the item, which, on chemical examination

by the FSL, was found to be „charas‟. The movement of the alleged contraband

from the time of its seizure till it reached FSL for chemical examination leaves

enough scope for its tempering and re-placement. As is the case of the

prosecution, the samples were prepared on spot on 24.09.2006 itself and the

same were taken to the Magistrate for re-sealing on 26.09.2006. It took two

days for the prosecution to produce the sealed samples for re-sealing before the

Magistrate, which puts the safe custody of the contraband in jeopardy. It is the

categoric statement of the Executive Magistrate that one of the samples, after

re-sealing, was sent to the FSL through Constable Ghulam Hussain on the

same day i.e. 26.09.2006, whereas PW Surjeet Singh claims that he collected

the sample from Dy. S. P. DAR, Ramban on 27.09.2006 and delivered the

same to the FSL on 29.09.2006, without explaining as to where he had kept the

sample for two days. That apart, the seal impression i.e. ring with which the

three different samples „A‟, „B‟ and „C‟ were sealed on spot and was kept on

the superdnama of Gurdev Singh, was never sent to the Executive Magistrate

nor to the FSL. Interestingly, Gurdev Singh has not been produced as a witness

by the prosecution nor the seal impression i.e. ring has been produced before

the trial Court. In these circumstances, the link evidence is rendered

incomplete and puts the whole case of the prosecution in the realm of doubt.

Hon‟ble the Supreme Court in State of Rajasthan v. Gurmail Singh, 2005

SCC (Cri) 641, in somewhat similar circumstances held thus:-

"...................We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the

CRA Nos. 31 & 30 of 2008

seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.

We find no error in the judgment of the High Court. This appeal is, therefore, dismissed."

14. Having given our anxious consideration to all aspects of the case,

we are of the view that it is a case where the prosecution has failed to place on

record cogent link evidence which could connect the appellants with the

offences charged.

15. Accordingly, both these appeals succeed. The appellants are given

the benefit of doubt and are, therefore, acquitted of all the charges. The

appellants are already on bail. Their bail bonds are, accordingly discharged.

                                          (Puneet Gupta)                    (Sanjeev Kumar)
                                                 Judge                               Judge

JAMMU.
09.03.2021
Anil Raina, Addl. Registrar/Secy

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

The judgment is pronounced in terms of Rule 138 (4) of the Jammu and Kashmir High Court Rules, 1999.

(Sanjeev Kumar) Judge JAMMU:

March 09, 2021