Intelligence Office vs Unknown
2023 Latest Caselaw 1995 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                                CRAA No. 260/2014

                                             Reserved on 11.09.2023.
                                             Pronounced on 16 .09.2023


Intelligence Office, NCB                                     ..... appellants (s)

                                 Through :- Mr. Vishal Sharma DSGI.

                           V/s

                                                             .....Respondent(s)

Abdul Hameed Rashi and another
                           Through :- Mr. Ajaz Chowdhary Advocate

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
        HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                        JUDGMENT

Sanjeev Kumar, J.

1 This appeal by Union of India is directed against the judgment of

acquittal dated 23.09.2014 passed by the learned Principal Sessions Judge,

Jammu ["the trial Court"] titled „State through Intelligence Officer vs. Abdul

Hameed Rashi and another‟, whereby the complaint filed by the Narcotics

Control Bureau, Jammu, Zonal Unit against the respondents herein has been

dismissed and the respondents acquitted of the charge under Section 8/20/60 of

NDPS Act.

2 Briefly put the prosecution story projected by the appellant in its

complaint filed before the trial Court are that on 31.03.2012, a secret

information was received by Mr. Naresh Kumar, Intelligence Officer of NCB,

Jammu from a reliable source that the respondents would be transporting

narcotic drugs from Kashmir valley to Akhnoor in a Tavera vehicle.This

information was given by the Intelligence Officer to the Superintendent, NCB,

Jammu, who upon receipt of this information, constituted a team under his

supervision to lay a naka in Malpur area on 31.03.2012. On 01.04.2012 at

about 4.20 am, two persons, namely Ram Pal Sharma and Ghanshyam Sharma,

who were crossing the national highway, were informed by the Intelligence

Officer Naresh Kumar that there was possibility of presence of narcotic drugs

in a Tavera vehicle. They were requested to accompany NCB team to the place

of naka to witness the entire proceedings of seizure, if any, effected from the

vehicle. On the said persons agreeing to the request, a notice under Section 53

of NDPS Act was issued to them by the Intelligence Officer.

3. At about 4.30 am, the Tavera vehicle bearing Registration

No. JK03C-5687 which was coming from Jammu was intercepted. The vehicle

was being driven by the respondent Javaid who was accompanied by the

respondent Abdul Hameed sitting as a co-passenger. The vehicle was searched

by PW Koushal Kumar and PW P.N.Thussoo and on search, a plastic bag from

under the middle seat of the Tavera vehicle was recovered. The bag contained

16 packets. The Intelligence Officer Naresh Kumar opened four packets out of

16 packets and extracted some quantity of black coloured material from each of

the four packets. He mixed them together thoroughly and tested with the help

of drug detection kit. It was found that the material seized was „charas‟. The

weight of all the packets was found to be 7.248 kgs.

4 The requisite formalities in respect of seizure were

complied with. The seizure memo was signed by the respondents as well as

two independent witnesses. The respondents were apprehended and they were

taken along with the seized material to the NCB office. The seized packets

were opened and it was found that each packet contained nine challies of

charas and were 144 in number. As is averred in the complaint, all the challies

were broken and mixed together thoroughly. They were found to contain

„charas‟. The entire material was weighed again and was found to be 6.300

gms. The Intelligence Officer Naresh Kumar took two samples of 24 gms each

from 6.300 gms and sealed the same. The said samples and the remaining

charas were sealed separately. The remaining charas and packing material of

the charas was put into separate packets and marked as Lot-A and Lot-P

respectively and the same were sealed by PW Kuldeep Sharma,

Superintendent.

5. After completing the requisite formalities, a notice under

Section 57 of NDPS Act was given to the respondents and both made voluntary

statements admitting that the contraband weighing 6.300 gms was recovered

from them. They were arrested and the samples picked up were sent to CFSL,

Delhi for chemical analysis. As per the report of CFSL, the samples were

found positive for charas. On the basis of the complaint and the evidence

collected by the appellant, the respondents were charged for the commission of

offences under Sections 8/20/60 NDPS Act to which they pleaded not guilty

and claimed trial.

6. With a view to bring home the charge against the

respondents, NCB examined PWs Ram Pal, Hayat Singh, Ghan Shyam,

P.N.Thusoo, Koushal Kumar, Kuldeep Sharma, Hardeep, Naresh Kumar and

Bhuwan Ram as witnesses.

7 On the conclusion of evidence led by the appellant/NCB,

the matter was considered by the trial Court who vide its judgment dated

23.09.2014 acquitted the respondents of the charge for offences under Sections

8/20/60 NDPS Act. It is this judgment of acquittal which is called in question

before us in this appeal by the appellant.

8 Having heard learned counsel for the parties and perused

the material on record, we are of the considered opinion that the view taken by

the trial Court on the evidence on record, is correct and unexceptionable.

9 The evidence on record led by the appellant before the trial

Court is fraught with major contradictions. As is rightly concluded by the trial

Court, the appellant has miserably failed to prove the recovery of any

contraband from the possession of the respondents. Admittedly, the entire

recovery proceedings, leading to seizure and sealing of the recovered material,

are stated to have been witnessed by two independent witnesses, namely PWs

Ram Pal and Ghanshyam. Both the witnesses have not supported the case of

the appellant.

10 It has come in the testimony of PW Ram Pal that he along

with PW Ghansyam was asked by the NCB officials to stop when they were

crossing through the naka laid by them. The NCB did not tell them anything

and took them to their office. The witness also admits that in their presence the

NCB officials stopped one Tavera vehicle from where the respondents/accused

came out. He also does not deny that the vehicle was searched in their

presence. He, however, states that some articles were taken out from the

vehicle, but does not know what articles were taken out. He states that the

seizure memo was prepared by the NCB officials, but, what was written in the

seizure memo, was not made known to him. Anyway, the witness, in view of

his testimony not supporting the case of the appellant, was declared hostile and

subjected to cross-examination. Nothing fruitful and to the benefit of the

appellant came out in his cross examination. To the similar extent is the

testimony of PW Ghanshyam, who is another independent witness to the

seizure of contraband.

11 That apart, we find another glaring discrepancy in the

matter of effecting seizure of the contraband. As is stated by the complainant‟s

witnesses, the material was put into two different packets marked as Lot-A and

Lot-P and seal was provided by the Superintendent, Kuldeep Sharma. It has

nowhere come in the evidence that the samples which were picked up from the

seized material or for that matter, the rest of the seized material, was resealed

by the Executive Magistrate. It has also come on record that the samples were

taken out of the seized material on 01.04.2012, one of which handed over to

PW-2 Hayat Singh on 02.04.2012 and received in CFSL on 03.04.2012.

However, it has not come in the evidence as to where was the sample kept on

01.04.2012 when it was taken out from the seized material. There is nothing in

the evidence of the appellant that the seal which was put at the time of seizure,

tallied with the speciment seal and was found intact by the CFSL. In the

absence of resealing by the Executive Magistrate, the possibility of tampering

with the sample which was sealed only with the seal of Superintendent of NCB

by the officials of NCB themselves cannot be ruled out. In the absence of any

material on record, we have no other option than to assume that on 01.04.2012,

the sample sealed under the seal of Superintendent NCB remained with the

NCB officials without having been deposited in the Malkhana or in other safe

custody.

12 There is another contradiction which has remained without

clarification from the complainant‟s witnesses, particularly the Intelligence

Officer who conducted the entire proceedings. The sample which was taken

from the seized material was found weighing 24 gms and the sample that was

received by the CFSL was found weighing 21.1 gm and interestingly, the

Intelligence Officer has not explained this variation. In the absence of any

explanation in respect of this variation, the trial Court rightly doubted the

complainant‟s version that it was the same sample that was taken on spot and

sealed by the Intelligence Officer was sent to CFSL for examination. That

apart, the manner in which the sample was taken out of the seized material

leaves much to be desired.

13 Indisputably, the material seized consisted of 144 challies.

The NCB broke all the challies and mixed them thoroughly and it was from

this entire mixture weighing 6.300 gms, two samples of 25 gms each were

taken and sealed. The manner in which the samples were collected by the NCB

would make it highly doubtful as to whether the material in all the 144 challies

was charas or only a few of them contained charas. This would raise another

question as to whether the seizure of the contraband charas would fall in the

„small‟, „intermediate‟ or „commercial‟ quantity.

14 Viewed from any angle, we find that the manner in which

the investigation has been conducted by the NCB and a sort of mess is created

would leave one with no option but to give benefit of doubt to the respondents.

15 For the foregoing reasons as also the reasons given by the

trial Court in support of the judgment impugned, we find no merit in this

appeal and the same is, accordingly, dismissed.

Trial Court record be sent back along with a copy of this

judgment.

                             (PUNEET GUPTA)               (SANJEEV KUMAR)
                                      JUDGE                         JUDGE
Jammu
 16 .09.2023Sanjeev                       Whether order is reportable: Yes/No