State Of Jk Th. Police Station ... vs Ali Mohammad Sheikh
2023 Latest Caselaw 1303 j&K/2

                                                            Sr. No.1
                                                            Regular Cause List

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR
                             CRAA No. 22/2017

State of JK Th. Police Station Shergari             ...Petitioner(s)/Appellant(s)

Through:    Mr. Sajad Ashraf, GA.

                                       Vs.
Ali Mohammad Sheikh                                              ...Respondent(s)

Through:    Mr. Waseem Ramzan Lone, Adv.

CORAM:

      HON'BLE MR JUSTICE ATUL SREEDHARAN, JUDGE
                       ORDER

10.10.2023

The present appeal has been preferred by the State which was aggrieved by the order and judgment of acquittal dated 09.03.2017 passed by the Court of 2nd Additional Sessions Judge, Srinagar in FIR No. 33/2012 of Police Station, Shergari for offences under Section 8/20 of the NDPS Act.

2. The brief facts of the prosecution case are as follows:-

3. SI Farooq Ahmad wrote a docket/letter to the police station Shergari for lodging an FIR alleging that he along-with the Constables Riyaz Ahmad, SG Constable Zahoor Ahmad & SPO Sabzar Ahmad were performing patrolling and checking duty at Androoni Haft Chinar Dogar Basti. The respondent herein was found in suspicious circumstances and his personal search was conducted on spot which lead to the recovery of one polythene bag containing Charas like substance wrapped in a maize cone leaves contained in four small packets. Upon this, FIR No. 33 of 2012 came to be registered for offences under Section 8/20 of the NDPS Act which was registered in Police Station Shergari. The prosecution produced in all, seven witnesses to support its case.

4. PW-1 Farooq Ahmad has stated that the accused is known to him and that in the month of April 2012 he was posted at Police Station Shergari and he was conducting search at Androoni Haft Chinar where

he stopped the respondent and carried out his personal search which lead to the recovery of the contraband material as referred to hereinabove. Thereafter, PW-1 Farooq Ahmad wrote a docket to the Police Station, pursuant to which SHO and DySP reached the spot. The docket was Exhibit PW-1.

5. In cross examination, this witness has stated that he is ignorant about Section 8, 9, 15, 20, 50 and 57 of the NDPS Act. He further states that the SHO has not recovered seized contraband but the same was recovered by him from the accused and he kept the recovered material with him till the arrival of the SHO. He further stated that he has not prepared the seizure memo of the seized material and that the IO has not obtained his signatures at the time of receiving the seized material from him. He further says that the seized material was neither weighed nor sealed on the spot.

6. PW-2 Zahoor Ahmad has stated that on the date of occurrence, he was patrolling along-with PW-1, SI Farooq Ahmad and that they confronted the accused and from him, four pieces were recovered in one polythene bag and after seizing the said pieces, a docket was written to the Police Station for lodging the FIR. He has put a signature on the statement recorded under Section 164 CrPC and on the seizure memo and that he has admitted the contents of the same to be true and correct and they are exhibit PW-2.

7. In cross examination, this witness states that they started patrolling at 5:00 PM and that they caught the respondent at 5:15 PM on a road at Dogar Basti Mohalla. He says that he does not remember who has conducted the search of the accused. This ignorance on the part of PW-2 is important because the search is stated to have been carried out by PW-1. PW-2 was in the company of PW-1 at the time of the search. He further says that he has no knowledge who has prepared the seizure memo in the Police Station. He says that the seizure memo was prepared in the Police Station and he has signed the same. He further says that SHO had asked him to put the signatures on the seizure memo at the Police Station. He further states that no seizure memo was prepared on the spot and the seized material was not weighed in his presence in the Police Station.

8. PW-3 Riyaz Ahmad who is a constable has stated that he was on patrolling along-with PW-1 and PW-2 at Haft Chinar. This witness says that PW-1 asked the police constables to conduct the personal search of the accused during which the contraband, as stated hereinabove, was recovered from the respondent. He further states that seizure memo was prepared by SI Farooq Ahmad and he has put his signatures on the seizure memo. This is again in contradiction to the statement of PW-1 who states categorically that he has not prepared the seizure memo.

9. In cross examination, this witness states that they had reached the Police Station along-with the accused at 5:00 pm. This is in contradiction with the statement of PW-2 who says that they confronted the respondent only at 5:15 pm. PW-3 in his cross examination also states that no recovery or seizure memo was prepared on spot. He goes ahead and says that Sabzar Ahmad SPO has conducted the personal search of the accused which is in total contradiction to the statement of PW-1 who says that it was PW-1 who conducted the personal search of the accused. PW-3also states that he does not remember how many packets were recovered from the accused and that he had put his signatures on the seizure memo on the next date after the seizure memo was prepared. He further says that the seizure memo was not prepared by the SHO.

10. PW-4 Sabzar Ahmad Rather who says that he was posted as driver with SHO Police Station Shergari and was on patrolling duty with PW-1, PW-2 and PW-3, when they found the respondent in suspicious circumstances at Haft Chinar and PW-1 asked them to search the respondent and how during the search, the aforementioned contraband was recovered from the respondent.

11. In cross examination, the witness states that he has no knowledge who conducted the search of the accused. This denial of knowledge with regard to the search of the accused assumes great significance and relevance as this witness was there along-with PW-1 who stated that he had conducted the search of the accused.

12. PW-5 Shakeel Ahmad Wani who is a Scientific Officer, FSL Srinagar, states that he received one sealed packed market „A‟ enclosed within cloth bearing 8 intact seals forwarded by SDPO Shaheed Gunj through

ASI Abdul Rehman, from which he found certain greenish colored material in the form of pieces weighing 25 grams which upon examination was detected to be charas. PW-1, 2, 3 and 4 do not state that the material that was seized from the respondent was ever packed or sealed, neither do they say that it was ever weighed at the Police Station, but the PW-5 who is a Scientific Officer says that the quantity sent to him was 25 grams. Therefore, a grave doubt is raised with regard to the seized quantity which was never recorded or spoken of by the witnesses, and the quantity received at the FSL.

13. PW-7 is Mohammad Asgar who is an Inspector, was the IO in this case. He was posted as SHO in Police Station Shergari and on 15. 04.2012, he received a docket from SI Farooq Ahmad through Sabzar Ahmad who was on patrolling duty with the said SI along-with other constables in Androoni Haft Chinar. He says that he registered the FIR and went to the spot and prepared the site plan. This witness says that the charas like substance recovered from the possession of the accused wrapped in maize cone leaves was seized on the spot. He further says that the seized material was sealed on the spot and thereafter it was resealed before the Executive Magistrate and out of the seized substance some part of the same was sent to FSL Srinagar for chemical analysis. Here, it is relevant to state that PW-7 does not say that before sealing, the contraband was ever weighed at the spot and how much was seized from the respondent at the spot.

14. In cross examination by the defence counsel, the witness states that even before he had reached the scene of occurence, the charas was already recovered by SI Farooq Ahmad and he has given the said charas to PW-7 and thereafter he has prepared the seizure memo. The other three witnesses who were there along-with PW-1 do not say that the seizure memo was ever prepared at the scene of occurrence. Instead they have stated that the seizure memo was prepared in a police station with one of them having said that he signed on the next day after the recovery.

15. The learned trial court in page 6 of its judgment has referred to the inherent discrepancies and contradictions specifically with the statements of PW-1, 2, 3 and 4 who were together at the time of making the alleged seizure from the respondent. The learned trial

court has also spoken about the contradictions which, have also already been observed by the court hereinabove, while holding that the prosecution witnesses are not reliable. The learned trial court has also held that no option was given by the police to the respondent under Section 50, to get himself searched by a Magistrate or a Gazetted Officer. On the basis of the discrepancies between the statement of PW-1, 2, 3 and 4and the non-compliance of Section 50, the trial court has acquitted the respondent giving him the benefit of doubt.

16. Learned counsel for the appellant-State, has vehemently argued that the application of the law with regard to the appellant not being given the option of getting himself searched by a Magistrate or a Gazetted Officer which form one of the basis for the acquittal of the respondent, was a misconception of the law on the part of the learned trial court judge. In this regard, learned counsel for the State has relied upon a judgment of the Supreme Court reported in (2009) 3 SCC 403 (Hamidbhai Azambhai Malik vs. State of Gujarat) where the Supreme Court had dealt with the invocation of Section 42. In that case, the Supreme Court held on the basis of the facts of that case that where the complainant who was the police Sub-Inspector while investigating some other offence discovered the possession and selling of contraband articles by the appellant Hamidbhai at his residence, whereupon the search of the house, the contraband stood discovered. In that case, the Supreme Court held that Section 42 of the NDPS Act was invocable only if the search is made by the police officer or the concerned authority, upon prior information. However, when such information or intimation or knowledge comes to the notice of the Investigating Officer in course of regular patrolling or investigation of some other offence, it is not necessary to follow the conditions incorporated in Section 42 in all cases. It is pertinent to mention here that it was a two Judge Bench of the Supreme Court which had passed the order. However, in State of Punjab vs. Baldev Singh (1999) 6 SCC 172, a Constitution Bench of the Supreme Court was dealing with the reference to examine the ambit and scope of Section 42 and 50 of NDPS Act. The Court held in paragraph 12 "on its plain reading, Section 50 would come into play only in the case of a search of a person, as distinguished from search of any premises etc.

However, if the empowered police officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." Also relevant here is Paragraph 25 of the same judgment where the Supreme Court held that the right to be searched before a Gazetted Officer or a Magistrate is an extremely valuable right which the legislature has given to the person concerned, having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act and that the same was incorporated in view of the severity of the punishment. It further held that the reason behind the provision is even otherwise manifest and that the search before a Gazetted Officer or a Magistrate would impart more authenticity and creditworthiness to the search and seizure proceeding which would resultantly strengthen the prosecution‟s case. It further held that there is no justification for the officer so empowered to search a person on prior information to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. The learned counsel for the appellant-State has relied upon this paragraph to buttress his case that it is only in the event of a search, pursuant to prior information, that the option of being searched by a Magistrate or a Gazetted Officer is to be offered mandatorily to the prospective accused. If this contention of the learned counsel for the appellant- State is accepted as the only condition in which such an offer should be made to the prospective accused under Section 50 of the NDPS Act, what would happen in a case where even on a prior information, the police does not record information and conducts the search as a routine search? If the said contention is accepted as the correct proposition of law, the police would have no difficulty in circumventing it by showing a search and seizure as a chance seizure even where they have prior knowledge of accused carrying the contraband.

17. The safeguard given by the legislature is precisely to ensure that there is no subterfuge by the police in conducting the search and seizure in such a manner that by a strict interpretation of the procedure given, it can bypass the safeguards of Section 50 of the NDPS Act. The only exception is provided in paragraph 12 of the judgment of the Constitution in State of Punjab vs. Baldev Singh, where the police stumbles upon the contraband in the course of its investigation into another offence. Therefore, the contention of learned counsel for the appellant-State cannot be accepted.

18. Even otherwise, the appreciation of the evidence by the learned trial court which this Court has also reiterated hereinabove, goes to show that there are major contradictions amongst the statements of PW-1, 2, 3 and 4 who were together at the same time when the search and seizure was allegedly effected from the respondent.

19. It is trite law that the scope for interference in an order of acquittal by the trial court is extremely limited. If the judgment of the learned trial court is reasonable and does not bear glaring defects or perversity, the appellate court cannot interfere merely because a better view is possible. This court is of the opinion that the appreciation of evidence and the findings of the learned trial court with regard to the major discrepancies in the statements of PW-1, 2, 3 and 4 cannot be said to be perverse by any extent and the same are reasonable and just and, therefore, the impugned order and judgment dated 09.03.2017 does not call for any interference.

20. The appeal is dismissed. The bail bonds of the respondent stand discharged.

(ATUL SREEDHARAN) JUDGE SRINAGAR:

10.10.2023
Altaf

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