Jammu & Kashmir High Court
State Of J&K vs Gurjinder Singh on 16 September, 2021
Supplementary Cause List-2
Sr. No. 36
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 16.09.2021
Crl LP No. 63/2019
in
Crl A (AD) No. 17/2019
I
State of J&K .....Appellant(s)
Through :- Mr. Aseem Sawhney, AAG.
v/s
Gurjinder Singh ......Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Per Puneet Gupta-J:
1. The appellant-State has preferred appeal against judgment dated
19.04.2019, passed by the learned Principal Sessions Judge, Kathua
whereby the respondent has been acquitted of the charges framed
under Sections 8/21/22 NDPS Act on the ground that the same is
against law and facts of the case; that there is sufficient material on
record to convict the respondent; that the prosecution established the
case against the respondent through oral as well as the documentary
evidence and that the trial court has ignored important piece of
evidence.
2. The case set up by the prosecution against the accused was that on
20.01.2016 the naka was laid by DySP (P) Mohd. Adrees Wani near
Maggar Khad on National Highway and was accompanied by other
police officials. At about 6.15 PM a Car No. JK02BF-2624, driven by
the accused was stopped at the naka point during the course of
checking of the vehicles and on the personal search of the accused, one
white colour polythene envelope containing 9.05 gms of heroine was
recovered from the pant of the accused. The written docket from the
DySP resulted into registration of FIR No. 27/2016 with Police
Station, Kathua under Sections 8/21/22 NDPS Act against the accused.
On the completion of the investigation, the challan was produced
against the accused for the aforesaid offences. The accused was
charged for the commission of offence under Sections 8/21/22 NDPS
Act. As the accused did not plead guilty to the charges framed against
him, the prosecution was directed to produce evidence in support of its
case.
3. The statement of the accused was also recorded under Section
342 Cr.P.C on the closure of prosecution evidence. The accused did
not choose to produce any evidence in defense.
4. The prosecution produced number of witnesses in support of its case. It
is profitable to take stock of the statements of the witnesses before
proceeding further in the matter.
5. PW-1 Mohd. Idrees Wani, DySP has deposed that it took about two
hours to complete the proceedings on spot and which relate to seizure
and weighing of the contraband. The proceedings were completed by
I.O while sitting on the side of the road. No civilian was present on
spot at the naka point. PW-2 Sanjeevan Jyoti, S.I has deposed of
intercepting of the car of the accused and recovery of 9.05 gms of
charas which was kept in a white polythene envelop in the pant by the
accused. The contraband was seized. Two separate parcels containing
representative sample and remaining one were prepared and marked as
A & B. The witness has further deposed that there are two hotels at
some distance from the naka point and no one was called from the
hotels. The civilians were also moving on the spot and called by the
I.O. The FSL form no. 29 was not filled up on spot. The proceedings
were conducted by I.O while sitting on the roadside. PW-3 Surinder
Singh, Head Constable has also deposed of recovery of the contraband
from the possession of the accused and taking of sample of the same.
As per the witness no civilian witness was called on spot due to their
non-availability. No FSL form was filled by the I.O. The proceedings
were conducted by I.O on spot in the mobile phone due to darkness.
PW-4 Rajesh Singh, SGCT is also witness to the contents of memo
ExtP-1/1 pertaining to seizure of heroine, seizure of car of the accused
ExtP-1/2 and superdnama of ring used for sealing of the packets
ExtP-1/5 and kept on his superdnama which he has produced in the
court. In cross-examination, the witness has stated that the seizure
memo was prepared by the I.O on the bonnet of the official gypsy
while switching on the internal light of the said vehicle and not on the
road while sitting there. No civilian was called on spot by the I.O.
PW-5 Ravinder Singh, Constable has also deposed about the recovery
of contraband from the possession of the accused and has admitted the
contents of memos prepared during investigation. No civil witness was
called from the nearby hotels and factories. No civilian was moving on
the road at that time. PW-9 Mohd. Shafi is I.O of the case and has
stated about the investigation carried by him on spot and which
includes seizure, sampling and sealing of the parcels containing the
contraband. The parcels containing contraband were kept by him in the
malkhana and entry made in this regard in register No. 19 of malkhana
register marked as B. The sample was taken out from malkhana and
produced for re-sealing by executive magistrate and thereafter was sent
to FSL Jammu. In cross-examination he has stated that office of Forest
Protection Force is situated at a distance of 100 ft. from the place
wherefrom the accused was apprehended. The proceedings were
conducted by him in a torch light. It is wrong to state that paper work
was done while sitting on the road side and keeping the front light on
of the gypsy. The form no. 29 was not filled by him. The sample was
got re-sealed on 23.01.2016 and was sent to FSL for examination on
27.01.2016. There is no documentary material placed on record to
show of the sample being taken for re-sealing on 23rd January, 2016
nor this fact is mentioned in malkhana register. There is no
documentary record about the whereabouts of the said sample from 23
to 27 when the sample was sent to FSL. He cannot say as to where the
said sample was kept for four days. The sample was wrapped in a
white colour polythene envelope before its sealing and not in
aluminum foil. He cannot say as to how the report of FSL expert
reveals that the sample was received in the laboratory wrapped in an
aluminum foil.
6. The perusal of the judgment reveals that the learned trial court has
doubted the manner in which the occurrence is alleged to have taken
place. The court has taken note of the statements of the prosecution
witnesses and has found that the witnesses have contradicted in this
respect. PW-2 has stated that the proceedings were carried out by the
I.O. while sitting on the road side but failed to speak of the source of
light while conducting the investigation. PW-3 states of the
proceedings have been conducted in the mobile phone light whereas
PW-4 has stated that the proceedings were conducted by the I.O. on the
bonnet of the official gypsy and the internal light of the vehicle was
kept on during the proceedings. PW-5 has stated of the proceedings
having been conducted by him on spot in the torch light. The trial court
has found the aforesaid contradictions in the statements of the
prosecution witnesses as not minor one. The Court does not find any
reason to disturb this finding of the trial court and hold otherwise as
there is no perversity in the same.
7. The trial court has also noted that the occurrence is alleged to have
taken place at a distance of 100 ft from the office of Forest Protection
Force which remains open throughout night and further the civil people
were also moving on the nearby road but none had been called on spot
during the course of investigation. The hotels are also there but no one
was summoned from the hotels for associating with the investigation.
PW-1 Mohd. Idrees Wani, DySP has deposed that no civilian was
present on the spot though PW-2 Sanjeevan Jyoti, S.I has deposed of
the availability of the independent witnesses at the place of occurrence.
The trial court has disbelieved the version of the I.O. that independent
witnesses could not be made part of the proceedings as they did not
agree for the same. Again this Court finds that the conclusion drawn by
the trial court after going through the prosecution evidence on this
aspect of the matter is not farfetched or implausible. The reliance
placed by the trial court on AIR 2017 SC 3751 titled Krishan Chand v.
State of Himachal Pardesh is not misplaced and squarely applies to the
present case. The Hon'ble Supreme Court in the above case took note
of the fact that the police failed to associate the independent witnesses
during recovery and acquitted the accused who was alleged to have
been found in possession of 7 Kgs of Charas.
8. The trial court while acquitting the respondent-accused has given
finding that the representative samples obtained during the course of
investigation are not duly proved to have been kept in safe custody
during the relevant period when it was supposed to be in safe custody.
The Court has emphatically held that the Malkhana Register No. 19
does not mention of any entry of parcel of representative sample
having been taken out for the purpose of resealing on 23.02.2016 or
deposit of the same after resealing and again taking out of the parcel
from malkhana for being sent to FSL, Jammu on 27.01.2016 for
chemical analysis. The Court has also found that ASI Ajit Singh has
not been examined as prosecution witness who is stated to have
deposited the sample in the FSL Office, Jammu so as to prove the
factum of the parcel of the sample having been taken by him from the
malkahna to FSL, Jammu. The trial court has rightly held about the
possibility of the tampering of the samples in view of the above fact
and the fact that the I.O. has admitted in his cross-examination that he
is not aware of the whereabouts of the parcel of representative sample
from 23rd to 27th January and further that the parcel marked as 'A' was
wrapped in polythene envelope and not in aluminum foil though PW-8
Pawan Kumar Abrol from FSL report has proved FSL report exhibited
as Ext.P-9 and has stated that the sample was in aluminum foil. This
contradiction has again raised genuine doubt in the mind of the trial
court as to whether the alleged contraband seized from the accused was
the one which was later on analyzed as part of investigation. It is trite
proposition of law that where the prosecution has failed to explain
satisfactorily that the sample was duly in safe custody during the
relevant period the tampering of sample collected during investigation
cannot be ruled out and this is what has happened in the present case
also. This court finds no reason to hold otherwise that the sample
obtained during investigation was in fact the one which was sent for
chemical analysis. The appellant has failed to convince this court that
during the period from 23 to 27 the sample was in safe custody. The
provisions of the NDPS Act are stringent and are required to be
observed with utmost care so that no innocent is unnecessarily is
prosecuted.
9. The learned Additional Advocate General appearing on behalf of the
appellant has failed to convince the court of any perversity in the
findings of the trial court which led to the acquittal of the accused and
thus requiring interference by the Court in the impugned judgment.
10. In view of the discussion made above, it is held that the application
filed for leave to appeal is without merit and is, accordingly, dismissed.
(Puneet Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu:
16.09.2021
Pawan Chopra
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
PAWAN CHOPRA
2021.09.16 16:51
I attest to the accuracy and
integrity of this document
