State Of J&K vs Chain Lal And Another
2022 Latest Caselaw 1398 j&K

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                AT JAMMU
                                        Reserved on:   28.09.2022
                                        Pronounced on: 07.10.2022

                                        CRAA No. 132/2013

State of J&K                                   ...Appellant/Petitioner(s)


            Through :-               Mr. Dewakar Sharma, Dy. AG

               v/s<




Chain Lal and another                                .....Respondent (s)
     't




            Through :-               Mr. Vikas Mangotra, Advocate


Coram:        HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
              HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                 JUDGMENT

Per Oswal-J

1. The judgment of acquittal dated 19.01.2013 passed by the learned

Sessions Judge, Kathua (hereinafter to be referred as trial court) in

case titled, 'State vs. Chain Lal and another'for commission of

offence under section 8/20 NDPS Act arising out of FIR No. 08/2008

registered with Police Station, Basohli has been impugned by the

appellant on the ground that learned trial court has wrongly acquitted

the respondents as the appellant had led sufficient evidence that

warranted the conviction of the respondents.

2. Mr. Dewakar Sharma, Dy. AG has vehemently argued that the

prosecution had successfully proved the case against the respondents

by leading cogent evidence but the learned trial court has acquitted

the respondents by appreciating evidence wrongly.

3. Mr. Vikas Mangotra, learned counsel for the respondents argued that

there are various infirmities in the prosecution case and the recovery

of contraband from the respondents is doubtful, as such, the appeal is

required to be dismissed.

4. Heard and perused the record.

5. The facts as they emanate from the charge-sheet are that on

20.01.2008, a police patrol party of Police Station, Billawar had laid a

Naka at a place called Khabal. When the respondents saw the police

party, they ran away. However, they were apprehended at about 16:45

hours and two bags were found in their possession. On inquiry, they

disclosed that they were having Charas. The respondent No. 2-Kali

Dass was having black bag with him whereas, the respondent No. 1-

Chain Lal was having green bag with him. They were produced

before the Executive Magistrate First Class and during presence of

the Executive Magistrate, bags were searched and in one bag, two

plastic bags containing Charas were found and they weighed as 4 Kg

912 gms and from that two samples were prepared and from the green

bag, 3 Kgs 848 gms Charas was recovered and from that also two

samples were prepared. The docket was prepared and on the basis of

docket, SHO, Police Station, Basohli registered an FIR bearing No.

08/2008 for commission of offence under section 8/20 NDPS Act.

After the completion of investigation, charge-sheet was laid against

the respondents on 11.03.2008. The respondents were charged for

commission of offence under section 8/20 NDPS Act vide order dated

23.09.2008. As the accused did not plead guilty so, the prosecution

was directed to lead evidence. Out of 15 witnesses, the prosecution

examined 12 witnesses whereas, the respondents examined one

witness in their defence. The learned trial court after hearing both the

parties acquitted the respondents.

6. In order to examine whether the opinion formed by the learned trial

court was possible/plausible one, it is necessary to have brief resume

of the relevant portion of the evidence led by the parties.

7. PW-1 Abdul Wahid Giri stated that on 20.01.2008, he was posted as

SHO, Billawar and he along with Constable, Varinder Kumar and

Murad Ali had laid a Naka near Khabal at about 4:40 PM. They saw

two persons, who on seeing the police ran away. They were

apprehended after chase and they disclosed their identity. Each of

them was having bags. On inquiry, they disclosed that they were

having Charas. The accused consented to the search and he talked to

SDPO, Basohli on phone. He took both of them to the residence of

the Magistrate. The Magistrate told him that he will visit the Police

Station. He took the Magistrate with him. SDPO, Basohli was also in

the Police Station. The Charas was in the shape of balls. 4 Kgs. 912

gms Charas was recovered from the accused-Kali Dass. Two Samples

weighing 50 grams each were taken out of the said charas. The

samples as well as charas were sealed. Likewise, from the accused-

Chain Lal, 3 Kgs. 848 grams of charas was recovered in the form of

balls. Samples of 50 grams and 40 grams were taken out of the same.

Seizure memos/recovery memos are in his hand writing and bear his

signatures. They were true and correct. The charas was weighed by

Om Prakash shopkeeper. Thereafter, he wrote a docket and it was

sent to SHO, Basohli for registration of the case. In cross

examination, he stated that on the day of occurrence, he was posted as

SHO, Billawar. The accused were coming from Malika. He laid a

Naka on the road. No civilian was there at the time of occurrence. All

of them chased the accused when they ran from the spot. They were

apprehended at a distance of 200 yards from the place of Naka. It is

correct that the charas was recovered from the accused prior to the

registration of the case.

8. PW-2 Krishan Paul Singh stated that on 20.01.2008, he was posted

as SDPO, Basohli. As SHO, Billawar had told him that a car has been

stolen by someone, he asked the SHO to lay a Naka at Shara. At

about 04:45, he informed that two persons ran on seeing him and he

pursued them and apprehended both of them. One person was having

black bag and the other was also having bag in his hand. They stated

that bags contained Charas. They were taken before the Magistrate

for search. The Magistrate asked to take them to the Police Station.

The Magistrate reached the Police Station and searched them. Charas

weighing 3 Kgs 848 gms was recovered from Chain Lal and Charas

weighing 4 Kgs 912 gms was recovered from Kali Dass. Two

samples weighing 50 grams and 40 grams were taken from charas

recovered from Chain Lal and two samples weighing 50 grams each

were taken from other accused. The Tehsildar resealed them. The

remaining contraband was also sealed. In cross-examination, he

stated that SHO had not opened the bags containing Charas. The

accused were brought to the Police Station after 17.00 hours. The

Tehsildar arrived at the Police Station along with the accused. At that

time, only Tehsildar searched them. Sample weighing 40 grams was

taken from the charas recovered from Chain Lal but he does not

remember whether it was marked as B1 or B2. The case was

registered after recovery of the charas. The samples were taken after

the sun-set.

9. PW-3 Murad Ali stated that on 20.01.2008 at about 8:40 in the

evening, he along with SHO, Billawar had gone to Tehsil Basohli in

connection with investigation of the case. They had laid Naka at

Malika road. The accused were found there. The SHO called them but

they tried to run away. They chased and arrested them. Each of the

accused had bags with them. SHO searched the bags and it contained

Charas. The Tehsildar was called at Police Station, Basohli. The

SHO, Billawar prepared the memos of recovery and seizure in

presence of the Magistrate. These bear his signatures. In cross-

examination, he stated that on 20.01.2008, they reached at the place

of occurrence at 20:40 hours. After 15 to 20 minutes, the accused

reached there. The place of occurrence is surrounded by houses and

the shops. The shops were open at that moment. No person residing

in the houses or from the shops was associated with the search. The

place of occurrence is a public road and there is movement of people.

The accused were taken to Police Station, Basohli along with seized

bags. The SHO opened the bags at the place of occurrence. They

were weighed at Police Station, Basohli in presence of the Magistrate.

This is correct that Sub Inspector Ishar Dass weighed the seized

charas at the place of occurrence. He does not know the numbers of

balls of charas those were recovered from each accused. He does not

know the quantity of the charas that was sent to FSL for chemical

analysis. This is incorrect that seizure memos were prepared at the

place of occurrence.

10. PW-4 Om Prakash was declared hostile and despite, cross-

examination, no incriminating material could be extracted from him

by learned PP.

11. PW-5 Rohit Kumar Mehra stated that the accused are not known to

him. He is a photographer and he had taken three photographs in the

case. He neither saw the accused nor had taken their photographs.

12. PW-6 Amarjit Singh stated that on 20.08.2008, he was posted as

Tehsildar, Basohli. At around 17/1715 hours, SHO, Billawar, Abdul

Wahid Giri asked him to talk to the SDPO. He talked to him. He

requested him to visit Police Station, Basohli in connection with

arrest of two persons caught with charas. He went to Police Station,

Basohli. He met SDPO, Basohli. Kali Dass was having black bag

with him. There was plastic envelope inside. Some black balls of

different size were in the said bag. Chain Lal was also having bag

containing black balls of different sizes. The accused told him that the

bags contained charas. The weight of balls in one bag was 4 Kgs 900

grams and the balls in other bag weighed 3 Kgs 800 grams. Samples

weighing 50-50 grams out of each bag were taken. They were sealed

by SHO, Billawar. He resealed them. Thereafter, he handed over

them to the SHO. He issued a certificate authorising the Director FSL

to open the samples. Two memos of seizure and recovery were

prepared at the spot. He attested them.

In cross-examination, he stated that when he reached the Police

Station, the accused were in the office of SHO. The accused did not

make any confession before him. However, SHO told him that

recovery was made from the accused. The accused stated that bags

belong to them. SHO did not make any inquiry from the accused in

his presence. He does not know who prepared the memos of recovery.

He also does not know whether these memos were prepared in his

presence.

13. PW-7 Hans Raj, Judicial Clerk stated that on 20.01.2008, he saw

the Tehsildar in the Police Station. He was also called at Police

Station at 1730 hours. Two/three persons were there and Dy.SP and

SHO were also there. The Tehsildar handed over four packets for

resealing but he does not know what was contained in those packets.

He did not weigh them. He took print out of letter written by the

Tehsildar from the computer. The Tehsildar signed the letter.

In cross-examination, he stated that seals with which he resealed the

packets were in his office. He carried the packets to the office

personally. The Tehsildar was in the Police Station when the seal was

affixed. After resealing the packets, he took them to the Police

Station.

14. PW-8 Anant Ram stated that on 25.01.2008, he was posted at Police

Station, Basohli. On 24.01.2008, he was deputed to deliver the

samples of charas along with letter to the Director FSL, Jammu for

chemical analysis. The samples were four in number He obtained a

receipt from FSL, Jammu in token of the delivery.

15. PW-9 Sat Paul stated that on 20.01.2008, he was posted as a

Selection Grade Constable at Police Station, Basohli. SHO seized two

memos of the consent of the accused and two memos of the

recovery/seizure which were produced before him by Abdul Wahid

Giri, SHO Police Station, Billawar. On the same day, the accused

were taken into custody by SHO, Basohli.

In cross-examination, he stated that memos of consent and recovery

and seizure were prepared by SHO, Basohli at about 21 to 22 hours.

16. PW-10 Shakti Singh stated that on 20.01.2008, he was posted as

Investigating Head Constable at Police Station, Basohli. In his

presence, two memos of consent and two memos of recovery/seizure

of charas were made. He signed them. In cross-examination, he stated

that memos of consent and memos of recovery/seizure were prepared

by Investigating Officer namely Ishar Dass Verma. They were in his

hand writing and bear his signatures.

17. PW-11 Pawan Abrol stated that on 25.01.2008, he received four

sealed packets. They were found to contain some greenish black

coloured powdered material weighing 51,52,50,50 grams each. He

proved the FSL report and as per the test conducted by him, the

exhibits were found to be charas.

18. PW-12 Ishar Dass Verma stated that FIR bearing No. 8/2008 was

registered on the receipt of the docket. He prepared the site plan

which is true and correct. The documents were produced before him

by the complainant. Two memos of recovery/seizure and two memos

of consent were seized by him. A letter was addressed to FSL for

chemical analysis of the contents of the packets. The charas was

weighed by Om Prakash. The report was obtained from FSL. In

cross-examination, he stated that he received the docket at 17:30

hours. He does not know the name of the person who produced the

docket before him. He does not know whether Abdul Wahid Giri

conducted the search of the accused at the spot. The accused along

with seizure material were produced before him at the Police Station

in the evening. The complainant had called the Magistrate at the

Police Station. The accused were searched in the presence of the

complainant. After the registration of the case, he investigated the

matter. The docket does not form the part of the file. The weight of

the charas and photography was conducted by him. He does not know

the number of the balls of charas. The samples of the seized charas

were taken by complainant and the complainant sealed them. He did

not seal them. The samples were sent to FSL on 25.01.2008. The

seized charas was lying in the Police Station from 20.01.2008 to

28.01.2008. Thereafter, it was deposited in Malkhana.

19. Defence has examined one witness namely Sher Singh. DW Sher

Singh stated that the respondents are also shepherds and four years

ago in the winter, the respondents were grazing their cattle. They

spotted two persons. At that time, one officer and three constables

reached there. The two persons threw their bags and ran away. The

police called the respondents from their houses and asked them to

carry the bags to Basohli. The bags did not belong to the accused. In

cross-examination, he stated that the accused are neither related to

him nor do they reside in his village. He does not know whether the

accused had consumed the liqour or any drug.

20. From the evidence brought on record it is evident that the recovery

and seizure of the charas from the respondents is doubtful. As per the

statement of Abdul Wahid Giri, the seizure was effected by him and

the memos of seizure/recovery are in his hand writing whereas,

statement of PW Amarjit Singh Executive Magistrate reveals that the

accused were searched in his presence and the charas was recovered

from them at the Police Station, Basohli. Amarjit Singh has further

stated that SHO told him that recovery has been made from the

accused and he does not know who prepared the recovery memos and

also does not know whether the same were prepared in his presence.

PW K.P.Singh has stated that the accused were searched by

Magistrate. Ishar Dass Verma, I.O. stated that memos of seizure were

prepared by Abdul Wahid Giri but PW Sat Paul and Shakti Singh

have categorically stated that memos of consent and memos of

recovery and seizure were prepared by SHO, Basohli i.e. Ishar Dass

Verma. This also makes the seizure doubtful. Not only this, the time

when the respondents were spotted is also doubtful. The statement of

SDPO K.P. Singh reveals that he has stated that the accused were

brought to Police Station after 1700 hours. Ishar Dass Verma has

stated that he received the docket at 17:30 hours. PW Sat Paul has

deposed that memos of recovery and seizure were prepared at Police

Station, Basohli between 21 to 22 hours. PW Murad Ali has stated

that at 08:40 in the evening, he along with Abdul Wahid Giri SHO,

Billawar went to Basohli in connection with the case and after 15 to

20 minutes, the accused reached there. Thus, there are different

versions with regard to apprehending of the respondents. All these

infirmities cannot be ignored particularly when in NDPS cases,

burden is very high upon the prosecution to prove the recovery of

contraband beyond any shadow of doubt. More so, there is

discrepancy in the weight of the samples as extracted by the

Investigating Officers vis-a-vis the weight of the samples received by

the FSL. As per the prosecution case, three samples of 50 grams each

and one sample of 40 grams were extracted out of the two bags.

However, the FSL report reveals that there were four samples

weighing 51, 52, 50 and 50 grams. Though, difference of one or two

grams can be ignored but there is a substantial difference in one

sample when as per the prosecution story, 40 grams of the sample

was extracted from the seized contraband but when the same was

received by the FSL, the same was found to be 50 grams. This

discrepancy in the weight is substantial and cannot be ignored. It

assumes significance that only independent witness PW Om Prakash,

who is alleged to have weighed the contraband, has not supported the

prosecution. The samples were extracted on 20.01.2008 and received

by the FSL on 25.01.2008. There is no evidence that in this

intervening period, the samples remained in safe custody as neither

Malkhana register has been placed on record nor In-charge, Malkhana

has been examined. The Investigating Officer has miserably failed to

prove that the samples were kept in safe custody from the date they

were extracted till the same were sent to FSL so as to negate any

chance of tempering with the samples.

21. We have gone through the judgment passed by the learned trial court

and the learned trial court has rightly come to the conclusion that the

prosecution has failed to prove the charges against the accused

beyond doubt. In view of the major infirmities/material contradictions

in the case projected by the prosecution, we do not find any reason,

whatsoever, to disagree with the findings returned by the learned trial

court. As such, the judgment of the learned trial court is upheld and

this appeal is, accordingly, dismissed, as is found to be without any

merit.

22. Record of the trial court be sent back.

                               (RAJESH SEKHRI)                    (RAJNESH OSWAL)
                                    JUDGE                              JUDGE
JAMMU
 07.10.2022
Neha
                               Whether the order is speaking:        Yes/No
                               Whether the order is reportable:      Yes/No