Jammu & Kashmir High Court
State Of Jammu & Kashmir vs Naresh Kumar S/O Duni Chand on 31 August, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr.No. 08
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
CRAA No.17/2012
State of Jammu & Kashmir .... Appellant(s)
Through :- Mr. Raman Sharma, AAG with
Ms. Saleeqa Sheikh, Advocate
V/s
Naresh Kumar S/o Duni Chand ....Respondent(s)
R/o Sateni Tehsil Udhampur
Through :- Mr. O.P.Thakur, Sr. Advocate with
Mr. O.S.Bandral, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT(ORAL)
31.08.2024
Sanjeev Kumar J
1. The State is in appeal against the judgment of acquittal dated 19 th
October, 2011 passed by the learned Additional Sessions Judge,
Udhampur ["trial Court"] in File No.32 and 8/Special Challan titled
State v. Naresh Kumar, whereby the trial Court has acquitted the
respondent for commission of offence under Section 18 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 ["NDPS Act"].
2. The impugned judgment of acquittal is assailed by the appellant on
multiple grounds. However, before we advert to the grounds of
challenge, we deem it appropriate to narrate few material facts germane
to the disposal of this appeal.
3. As the prosecution story goes, on 28.10.2004, PSI Bhopinder Singh
along with other police personnel, who were on patrolling duty, saw the
respondent moving in suspicious circumstances at Salathia Chowk,
Udhampur. On seeing the police, respondent tried to run. He was
chased and from out of his possession 380 gms of heroin was
recovered. PSI Bhopinder Singh took out 110 gms of heroin out of the
seized contraband as samples and sealed the same on spot. Rest 270
gms of heroin was separately packed. The sealed 110 gms of heroin
was sent for chemical examination and as per the report of the FSL, the
samples were found containing 8.5% morphine. Offence under Section
18 NDPS Act was, thus, established against the respondent and
accordingly, charge-sheet was presented by the police before the trial
Court.
7. Charges were framed by the trial Court under Section 18 NDPS Act
against the respondent on 10th August, 2005 and the statement of the
respondent was recorded. He pleaded not guilty and claimed to be tried.
With a view to proving the charge against the respondent, the
prosecution examined PW-1 S.I. Bhopider Singh, PW-2 Ct. Mohd.
Farid, PW-3 ASI Narayan Dass, PW-4 Ct. Subhash Singh, PW-5 Ct.
Sunil Kumar, PW-6 Head Constable Hukam Chand, PW-7 Madan Lal,
PW-8 Rohit Koul (Scientific Officer), PW-9, S.I.. Sharief, and PW-10
Jagdev Singh. The incriminating evidence that had appeared in the
prosecution case against the respondent was put to the respondent and
his statement under Section 342 Cr.P.C was recorded on 12 th May,
2009. The respondent denied the allegations and opted to produce
evidence in defence. The accused produced DW-1 Shiv Kumar and
DW-2 Suram Chand as his defence witnesses.
8. The trial Court considered the entire evidence that had come on record
in the light of the charge-sheet presented by the police and came to the
conclusion that the prosecution had failed to connect the respondent
with the commission of offence with which he had been charged. The
trial court, in terms of the judgment impugned, acquitted the respondent
of the charges primarily for the following reasons:-
i) That there are serious contradictions in the evidence of the
prosecution regarding recovery and seizure and the manner
in which it was effected by the prosecution witness S.I.
Bhopinder Singh.
ii) That there is serious doubt about the safe custody of the
seized contraband from the date it was seized till it reached
FSL for chemical examination.
9. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that the reasoning given by
the trial Court to support the impugned judgment of acquittal is
perfectly legal and in consonance with law.
10. Apart from the contradictions which are writ large in the prosecution
evidence, there is serious doubt about the safe custody of the
contraband item. Admittedly, the contraband-heroin was seized by PW-
Bhopinder Singh along with police party from near Salathia Chowk,
Udhampur on 28th October, 2004. As per the statement of PW-7 Hukam
Chand, two samples were deposited with him on 29 th October, 2004
against which he has made entry in the Malkhana register at S.No.124.
There is, however, no evidence on record to demonstrate as to when
these samples were taken out from the Malkhana for re-sealing.
Though, as per the statement of the Executive Magistrate PW-8 Madan
Lal, re-sealing of the samples was done on 03.11.2004.
11. From the FSL report on record, it further transpires that the samples
which were re-sealed on 03.11.2004, were dispatched to FSL on
06.11.2004 and the same were received by the FSL on 13.11.2004, as is
evident from the receipt of the FSL dated 13.11.2004 available on
record. There is, thus, no explanation tendered by any of the
prosecution witnesses, in particular, Investigating Officer as to where
the samples remained between 03.11.2004, when these were re-sealed
by the Executive Magistrate, to 06.11.2004, when there were dispatched
to the FSL. There is also no explanation forthcoming from any of the
prosecution witnesses as to where the samples remained from
06.11.2004 till 13.11.2004 when these were received by the FSL.
12. PW-9 Rohit Koul has also not rendered any explanation as to why the
samples which were received on 13.11.2004 were subjected to chemical
examination on 11.03.2005. Though, in his report as also in his
statement made before the Court, he has categorically submitted that
out of the nine seals put on the samples only four seals tallied with the
specimen seal impression forwarded by the Executive Magistrate,
Udhampur, whereas rest of the five seals could not be tallied.
13. Viewed in this background, it can safely be said that the samples which
were taken out from the contraband item on 28th October, 2004 were
not kept in safe custody and there is every apprehension of same being
tempered with anywhere from the date of seizure till it reached the FSL.
The onus to prove that the samples which were sent to FSL for
chemical examination were the same as were picked up at the time of
seizure/recovery of the contraband and that there was no opportunity to
any person to temper with the same in between was on the prosecution.
This onus has not been discharged.
14. The trial Court has rightly concluded that the manner in which the
samples were handled casts a serious doubt about their safe custody
and, therefore, the report of the FSL cannot be relied upon to connect
the respondent with the commission of offence under Section 18 of
NDPS Act. We are also in agreement with the trial Court that the
contradictions appearing in the evidence of the prosecution are not
minor contradictions but are so serious as would make the prosecution
story highly doubtful. PSI Bhopinder Singh in his statement has
categorically stated that the contraband item was recovered from the
pocket of the respondent whereas other witnesses have deposed that the
respondent was carrying the contraband in a black polythene packet.
There is also contradiction with regard to the manner in which the
samples were prepared. One of the prosecution witnesses alone stated
that small quantity of contraband was taken out from 10 packets
whereas others are silent on the issue.
15. Be that as it may, we see no reason to differ with the findings of fact
recorded by the trial Court. It is cardinal principle of law that the
accused is presumed to be innocent until proven guilty. This
presumption of innocence gets fortified with the acquittal of the
accused. Therefore, while hearing an acquittal appeal, even if this Court
is of the opinion that on the basis of evidence on record, another view is
possible, it would adopt the view that favours the accused.
16. For the foregoing reasons, we find no merit in this appeal, the same is,
accordingly, dismissed.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
Jammu:
31.08.2024
Vinod, PS
Whether the order is reportable: Yes/No
