State (Now U.T) Of Jammu And Kashmir vs Pardeep Singh
2024 Latest Caselaw 1722 j&K

Jammu & Kashmir High Court

State (Now U.T) Of Jammu And Kashmir vs Pardeep Singh on 31 August, 2024

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                         Sr. No. 12



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

Crl LP(D) No. 29/2023


State (Now U.T) of Jammu and Kashmir                               .....Appellant(s)
through SDPO, Gandhi Nagar, Jammu

                                Through :- Mr. Amit Gupta, AAG
                          v/s

Pardeep Singh                                                     .....Respondent(s)
S/o Bhupinder Singh
R/o Kanaspura Baramulla, Srinagar
At present ward No. 04, opp. MMC
College, Gangyal
                                Through :- Mr. Rohit Sharma, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                    ORDER

31.08.2024 Crl LP(D) No. 29/2023

The application, for the reasons stated therein as also in view of no

opposition by the learned counsel for the respondent, is allowed and leave to file

appeal is granted.

Registry to diarize and number the appeal.

01. Admit.

02. Notice.

03. Mr. Rohit Sharma, Advocate waives notice on behalf of the respondent.

04. This appeal by the State (now Union Territory of J&K) is directed against

the judgment of acquittal dated 30.06.2022 passed by the Court of learned

Additional Sessions Judge, Jammu ("the trial Court" for short) in case

titled „State of J&K vs. Pardeep Singh‟ whereby the trial court has

acquitted the respondent of commission the charge under Sections

8/21/22 of Narcotic Drugs and Psychotropic Substances Act 1985

("NDPS Act" for short).

05. Briefly stated, the prosecution case as was laid before the trial Court is

that on the basis of the docket brought to the Police Station, Gandhi

Nagar, Jammu by SGCT- Mohd. Javed, FIR No. 147/2018 came to be

registered. As per prosecution story, on 01.07.2018. SGCT-Javed Ahmed,

Ct.-Rajesh and SPO-Neeraj Kumar were on Naka duty and were checking

the vehicles at Digiana Puli at about 4:45 P.M. The respondent, who was

coming on his Vespa Scooter bearing Registration No. JK02L-9622 from

Digiana towards Digiana Puli was asked to produce the documents of the

vehicle. The respondent could not produce the documents of the vehicle

and on enquiry he told his name as Pardeep Singh. Personal search of the

respondent was conducted by the Incharge Naka through Selection Grade

Constable Javed Ahmed and from left pocket of the respondent, one

green polythene bag containing 40-50 gms of heroin was recovered. On

further checking, 400-500 gms of heroin was recovered from Dicki of the

Scooter. The respondent could not give any satisfactory explanation with

regard to the possession of the contraband and other items including

electronic weighing machine. Accordingly, upon registration of FIR,

investigation was taken up by SI-Kali Charan. The Investigating Officer,

after completing all the requisite formalities, sent the samples for

chemical examination to FSL Jammu. On receipt of FSL report, the

investigation was completed. Since I.O found that offences under sections

8/21/22 NDPS Act were established against the respondent, as such, a

final report/charge-sheet in terms of Section 173 CrPC was filed before

the trial Court.

06. To bring home the charge, the prosecution examined PWs-Javed Ahmed,

Rajesh Bakshi, Neeraj Kumar, Pawan Abrol, Reham Din, Faryad Ahmed,

Inspector-Kali Charan and Sunil Singh Jasrotia as witnesses. The

incriminating evidence was put to respondent and his statement under

Section 342 Cr.P.C was recorded. The respondent denied all the

allegations. However, he opted not to lead any evidence in defence.

07. The trial Court having considered the entire material and the prosecution

evidence on record, came to the conclusion that prosecution had

miserably failed to prove the case against the respondent beyond

reasonable doubt for the following reasons:-

(i) that no civilian witness was examined by the I.O. though several of them were available on spot;

(ii) that there was non-compliance of Section 57 of the NDPS Act;

(iii) that the safe custody of the contraband from the date the samples were picked up till it was received by the FSL was not ensured; and

(iv) that there were major contradictions with regard to the time of apprehension of the respondent and recovery of the contraband.

08. Having heard learned counsels for the parties at length and perused the

record, we are of the considered view that the judgment impugned passed

by the trial Court is perfectly legal and does not call for any interference

by us in this acquittal appeal.

09. It is not disputed before us that as per the evidence on record, there were

number of civilians available on spot, but not even a single civilian

witness was examined. All the witnesses examined by the I.O. are police

witnesses. It is true that one of the witnesses as in his deposition has

stated that civilians were requested to be associated in the process of

recovery but they refused to do so. The witness has, however, not given

any names in this regard. Besides, this solitary statement by the witness is

not corroborated by the Investigating Officer and other witnesses present

on spot. In that view of the matter, we see no reason not to approve the

findings of fact recorded by the trial Court in this regard.

10. Mr. Amit Gupta, learned AAG also did not dispute that in the instant case

there was total non-compliance with Section 57 of the NDPS Act. It is

trite law that failure to comply with Section 57 of the Act causes serious

doubt about the fairness of the Investigation conducted and in such

situation, the accused is entitled to the benefit of doubt.

11. Learned trial court has relied upon several judgments of various High

Courts to support the aforesaid view. We are not reiterating the same in

this judgment for the sake of brevity.

12. Another circumstance indicated in the impugned judgment is with regard

to the safe custody of the contraband from the date the samples were

picked up till these were received by the FSL.

13. In the instant case, the occurrence took place on 01.07.2018 and recovery

of contraband was made on the same date. It is claimed to have been

deposited in the Malkhana on the day of occurrence itself. It was,

however, taken out for resealing on 02.07.2018 and again deposited on

the same date. The I.O. further claims that the samples were taken out

from Malkhana on 03.07.2018 and dispatched to FSL for chemical

examination. The FSL is also stated to have received the samples on

03.07.2018, so far as the dates mentioned by the I.O. and the officer of

the FSL, namely, Pawan Abrol are not in contradiction, however, in the

absence of Malkhana registered having been produced and the Incharge

Malkhana, cited as a witness, the assertions made by the prosecution

witnesses cannot be accepted as a gospel truth. The prosecution was

required to substantiate that the contraband was indeed deposited in the

Malkhana on 01.07.2018 and finally taken out for FSL examination on

03.07.2018. This brings the entire case within the realm of suspicion and

the safe custody of the contraband is seriously jeopardized.

14. Apart from the above, the trial Court has also noted serious

contradictions in the statement of the witnesses, insofar, as the time when

the respondent was apprehended and the contraband was recovered from

him. One witness discloses time at 3:45 P.M, other at 5:00 P.M and one

goes to the extent of indicating the time of completion of investigation as

6:00 P.M. The trial Court could have perhaps ignored such contradiction

had the other mandatory requirements of law been complied with by the

prosecution.

15. Viewed from any angle, we find no reason or justification to interfere

with the well reasoned judgment of acquittal passed by the trial Court.

Needless to say that it is cordial principle of law that accused is presumed

to be innocent until proven guilty. This presumption of innocence is

fortified by the judgment of acquittal recorded in favour of the accused.

16. That apart, in an acquittal appeal, even if the appellate Court is of the

view that on the basis of evidence on record, the second opinion is also

possible, the Court will still go with the opinion that helps the accused.

17. For the reasons given above, we find no merit in this appeal, the same is,

accordingly, dismissed.

                                    (Rajesh Sekhri)               (Sanjeev Kumar)
                                        Judge                          Judge

JAMMU
31.08.2024
Meenakshi




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