State Of J&K vs Shabir Ahmed
2021 Latest Caselaw 342 j&K

                                                                    Sr. No. 509


               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                              ......

                                               CRAA No.27/2013
                                               Reserved on 09.03.2021
                                               Pronounced on 19.03.2021


State of J&K
                                                                 ...Appellant
                      Through: Mr. Vishal Bharti, Dy. A.G.

               versus
Shabir Ahmed

                                                               ...Respondent
                      Through: None

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

                                 JUDGMENT

TashiRabstan-J

1. This Criminal Acquittal Appeal is directed against the judgment dated 07.12.2012 delivered by the learned Additional Sessions Judge, Udhampurin case File No.66/Special Challan, whereby, the respondent-accused came to be acquitted of the charges under Sections 8/15/20 of NDPS Act.

2. We have heard learned counsel appearing for the appellant, gone through the file and also perused the judgment under appeal as well as the Trial Court record.

3. The only ground taken by the appellant in the memo of appeal is that despite being sufficient material on record to convict the respondent- accused, the learned trial Court has failed to appreciate the same in its true perspective, rather the trial Court has not appreciated the statement of prosecution witnesses in their totality.

CRAA 27/2013

4. A perusal of the file reveals that there were as many as 11 prosecution witnesses, but none of them was independent witness to prove that actually it was the respondent-accused who was carrying 16 Kg Bhukki and 8 Kg Charas in the truck-in-question on 25.04.2010, more particularly when DW Haroof Ahmed Sofi had specifically deposed that the respondent-accused was rather the driver of his TATA Sumo bearing No.JK03/9456 since 2005.

5. Further, the respondent-accused has specifically deposed that he was not having the license to drive the truck and he has been falsely implicated in the case just to save the elder son of PW Mehbooba because, as per respondent-accused, it was Mehbooba who was owner of the truck-in- question and his elder son Bilal was allegedly driving the said truck on 25.04.2010 when it came to be seized and Bhukki and Charas was recovered from the truck.However, it reveals that the prosecution has failed to investigate the matter taking into account this aspect of the matter also, more particularly when DW Haroof Ahmed Sofi had specifically deposed that the respondent-accused was the driver of his TATA Sumo since 2005. Moreover, it is the admitted position as also deposed by the PWs, who were present at the Naka point being part of the police party that it was dark when the truck-in-question was stopped for checking and that the truck was searched with the light of torch. It has also not been disputed that the accused was not known to any of the police personnel prior to the occurrence and all these PWs had just a glance of the accused, because, as per the deposition of these PWs itself,the respondent-accused had fled away from the spot when the truck was stopped for checking. Once there was dark when the truck was stopped for checking and the accused had fled away from the spot immediately after the truck was stopped and it took about two months to arrest the accused, then it is very strange that how the PWs identified the accused in the police station when he came to be arrested.

6. Further, as per the prosecution story, the Election Identity Card of the accused was recovered from the truck. After the recovery of contraband and CRAA 27/2013

the Election Identity Card of the accused, PW Surinder Singh, I/C Police Post Khoon wrote a docket to Police Station Majalta for lodging of the FIR. However, it is very strange that the docket did not disclose the seizure of identify card. Moreover, PW Surinder Singh, a witnesses of seizure memo, had specifically deposed that he identified the accused in the police station and he signed the seizure memo 4/5 days thereafter after identification of the accused; meaning thereby the version of PW Surinder Singh fortifies the defence of the accused that the identity card was seized after the arrest of the accused.

7. There is another aspect of the matter that the registered owner was not associated with the investigation nor anyone came forward for seeking release of the truck for one and a half month, nor the person accused in the commission of offence was implicated till then. All these facts make the prosecution story further doubtful and do not support the version of police theory. Thus, the acquittal of respondent-accused seems to be well merited.

8. Viewed thus, we do not find any solid and weighty reason to take a view other than the one taken by the learned trial Court; rather the trial Court in these circumstances had no option but to acquit the accused for want of adequacy of evidence. Accordingly, Criminal Acquittal Appeal fails and the impugned judgment dated 07.12.2012 recording acquittal of respondent is upheld.

9. Send down the record of trial Court along with a copy of this judgment.

                                      (Vinod Chatterji Koul)           (Tashi Rabstan)
                                                    Judge                     Judge
                Jammu
                19.03.2021
                (Anil Sanhotra)




ANIL SANHOTRA
2021.03.22 15:23
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integrity of this document