Jammu & Kashmir High Court
State Of J&K vs Prabhjot Singh Alias Kala on 6 October, 2021
Sr. No. 47
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: SLA No. 119 of 2017
CONCR No. 118 of 2017
CrlA (AD) No. 17 of 2021
State of J&K .....Appellant/Petitioner(s)
Through :- Sh. Aseem Sawhney, AAG
v/s
Prabhjot Singh alias Kala .....Respondent(s)
Through :- None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The present application has been filed by the applicant/appellant
seeking condonation of delay in filing the appeal. The applicant has
given the detailed reasons for not preferring the appeal within the
statutory period of limitation. The Registry of this Court has reported
that there is delay of 182 days in filing the appeal.
2. We are satisfied with the reasons furnished by the applicant in the
application duly supported with an affidavit for not preferring the
appeal within the statutory period of limitation. As such, the delay of
182 days in filing the appeal is condoned.
3. Condonation application No. 118 of 2017 stands disposed of.
4. Application seeking leave to file appeal is taken on board.
& CrlA (AD) No. 17/2021
5. The applicant/appellant through the medium of the instant application
seeks leave to file appeal against the judgment dated 25.02.2017
passed by the learned 1st Additional Sessions Judge, Jammu
(hereinafter to be referred as the trial court) in case, titled, State of
J&K vs. Prabhjot Singh alias Kala arising out of FIR No. 84 of 2010
for commission of offences under sections 8, 20 and 21 of the
Narcotic Drugs Psychotropic Substances, Act, 1985 (for short the
Act).
6. Heard Sh. Aseem Sawhney, learned Additional Advocate General and
perused the trial court judgment.
7. The learned trial court has acquitted the respondent primarily on the
ground that the mandatory provisions of section 50 of the Act have not
been followed and that there was a delay of ten days in sending the
samples of contraband to the Forensic Science Laboratory,
particularly when they were seized on 18.04.2010 and also that the
prosecution has neither examined any witness including the
'Malakhana' incharge nor has produced any other documentary
evidence to demonstrate that the samples were kept in a safe custody.
8. The prosecution story is that on 18.04.2010, the Police Party
comprising of PW-1 ASI Pritam Singh, PW-2 Head Constable
Mahesh Raj, PW-4 Sgct. Kuldeep Kumar and PW-5 Sgct Susheel
Kumar, under suspicious circumstances searched the accused,
respondent herein and recovered 1600 Paravan Spas Capsules from
his possession while they were on patrolling duty without uniform at
Khalsa Chowk, Nanak Nagar.
& CrlA (AD) No. 17/2021
9. The prosecution has examined as many as six witnesses out of 12
cited witnesses, namely, PW-1 ASI Pritam Singh, PW-2 Head
Constable Mahesh Raj, PW-4 Sgct Kuldeep Kumar, PW-5 Sgct
Susheel Kumar, PW-7 Amit Dubey and PW-8 Rohit Koul.
10. A perusal of the statements of the witnesses, namely, ASI Pritam
Singh, PW Mahesh Kumar, PW Sgct Kuldeep Kumar and PW Sgct
Sushil Kumar reveal that 1600 Paravan Spas Capsules were recovered
from the search of the respondent on 18.04.2010.
11. It is admitted fact that no notice under section 50 of the Act was
served upon the respondent so as to seek his consent as to whether he
wanted to get himself searched in presence of a Magistrate or a
Gazetted Officer. Needless to say that the compliance of section 50 of
the Act is mandatory and in no way, the same can be dispensed with.
Further, from the perusal of the evidence, it is revealed that there is no
evidence on record as to where the samples were kept after the alleged
capsules were recovered from the respondent. The prosecution has
neither produced the 'Malakhana Register' nor has examined the
Malakhana Incharge so as to demonstrate the place where the samples
were kept during the intervening period after its recovery on
18.04.2010 to 29.04.2010, when the same were forwarded to the FSL.
More so, a perusal of the record reveals that the Investigation Officer
has not been examined by the prosecution. Investigating Officer in
NDPS cases is one of the most important witnesses and it is his duty
to effect proper seizure, prepare samples and to place the samples in
proper and safe custody so as to negate every chance of tempering
& CrlA (AD) No. 17/2021
with the samples. As such, non examination of Investigating Officer
has caused prejudice to the samples.
12. In view of all what has been discussed above, no fruitful purpose shall
be served in the event any leave is granted to the applicant/appellant
as besides other legal infirmities, there has been non-compliance of
the mandatory provisions of section 50 of the Act. As such, we do not
find any reason to grant leave to file the criminal acquittal appeal. The
application bearing SLA No. 119 of 2017 is, accordingly, dismissed.
As a result, the accompanied appeal shall also stands dismissed.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
06.10.2021
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
