Jammu & Kashmir High Court
State Of Jammu And Kashmir vs Gourav Rabotra on 5 October, 2023
S.No.2
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRAA No. 103/2011
CrlM No. 1426/2023
State of Jammu and Kashmir .... Appellant(s)/Petitioner(s)
Through :- Mr. Dewakar Sharma, Dy. AG.
V/s
Gourav Rabotra ....Respondent(s)
S/o Sh. Kishori Lal Caste Mehra
R/o Ward No. 5 Basholi.
Through :- Mr. Vikas Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT(Oral)
05.10.2023
Sanjeev Kumar-J
1. State of Jammu and Kashmir (now Union Territory of Jammu and
Kashmir) is in appeal against order and judgment of acquittal dated 02.07.2011
recorded by the learned Principal Sessions Judge, Kathua ["the trial court"] in
file No. 10/Challan titled „State v. Gourav Rabotra.'
2. Before we advert to the grounds of challenge, reference to prosecution
story would be appropriate.
3. On 18.04.2007, the police of Police Station, Basholi while being on
regular petrol duty, put up a naka and intercepted a motorcycle "Yamaha Black"
which was being driven by the respondent. On an enquiry, the respondent
disclosed his name as Gourav Rabotra. The respondent was searched and on his
CrlM No. 1426/2023
search, one black bag containing 2000 capsules of Parvan Spas was recovered
from his possession. The capsules were immediately seized and an FIR No.
25/2007 under Section 8/21/22 of the NDPS Act was registered. The
investigation was taken up which ultimately culminated into presentation of
Final Report against the respondent. The trial court, after hearing the prosecution
and the respondent, framed charges under Section 8/21/22 of the NDPS Act. The
respondent denied the charges and claimed to be tried.
04. With a view to prove its case against the respondent, the prosecution
has examined only four witnesses i.e. PW Ravi Kumar, PW Manjeet Kumar, PW
Ashraf Ali and PW Mast Ram. The incriminating material appearing in the
statements of prosecution witnesses was put to the respondent and his statement
under Section 342 Cr.P.C was recorded. The respondent denied all the
allegations and pleaded innocence. He, however, chose not to lead any evidence
in defence. Having gone through the material and evidence that had been
brought on record by the prosecution, the trial court came to the conclusion that
the prosecution had miserably failed to establish the guilt of the accused. As a
result, the challan was dismissed and the respondent was acquitted of the charge
vide judgment and order dated 02.04.2011 which is assailed before us in this
appeal.
05. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that the judgment of acquittal passed
by the trial court is perfectly legal and is in consonance with law.
06. The prosecution has undoubtedly failed to perform its duty as is
enjoined upon it under the Code of Criminal Procedure. Out of the total nine
prosecution witnesses cited in the challan, the prosecution has only produced
four witnesses for examination. The important witnesses like Rohit Koul,
CrlM No. 1426/2023
Assistant Scientific Officer, FSL, Jammu, Ashok Singh Sumberia, Investigating
Officer, Mushtaq Ahmed Choudhary, SDPO and Constable, Raghunath have
been left out.
07. From a plain reading of the order-sheets of the trial court, it further
transpires that the trial court, after granting numerous opportunities to the
prosecution to produce rest of the witnesses, closed the prosecution evidence.
However, on an application moved by the prosecution, one more opportunity
was granted to produce the entire evidence but the prosecution failed to do so.
08. Without going much into detail, we are of the considered opinion that
no case under Section 8/21/22 of the NDPS Act can be held proved unless it is
firmly established before the trial court that the item/ material seized from the
accused is a narcotic drug or pyschotropic substance and this can only be
verified by subjecting the material to chemical examination in an approved
Forensic Science Laboratory. In the instant case, the Investigating Officer had
picked up two capsules as samples and sent it to FSL, Jammu but none of the
witnesses produced by the prosecution tendered the report of the Assistant
Scientific Officer, FSL, Jammu in evidence nor was the statement of the
Assistant Scientific Officer, FSL, Jammu- Rohit Koul recorded.
09. We are aware that the report of the Assistant Scientific Officer of the
FSL if tendered by the prosecution witnesses, is admissible in evidence even in
the absence of examination of the author of the report. However, in the instant
case, none of the witnesses have tendered the said report. Interestingly, the
Investigating Officer has not entered the witness box and perhaps he could have
been the relevant witness tendering the FSL report. Even the four witnesses who
were produced by the prosecution have failed to connect the respondent with the
commission of offence. The trial court has discussed the legal position vis-à-vis
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Sections 42 and 50 of the NDPS Act, which, in our opinion, was unnecessary
and uncalled for.
10. In the instant case, the recovery was not made from the personal
search of the respondent but was made from the bag carried by him which
contained 2000 capsules of Parvan Spas. The provisions of Section 50 were thus
admittedly not attracted.
11. Be that as it may, we find the evidence led by the prosecution
completely deficient and not worthy of any credence.
12. For all these reasons, we find no merit in this appeal and the same is,
accordingly, dismissed.
(Mohan Lal) (Sanjeev Kumar)
Judge Judge
Jammu:
05.10.2023
Neha-1
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
