Jammu & Kashmir High Court
State Of J & K Through vs Arshad Ahmed Khan @ Bashir Ahmed on 8 October, 2024
Bench: Sanjeev Kumar, Sanjay Dhar
Sr. No. 14
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 33/2013
State of J & K through .....Applicant(s)/Petitioner(s)
P/S City, Jammu.
Through :- Mr. Amit Gupta, AAG
v/s
Arshad Ahmed Khan @ Bashir Ahmed, .....Respondent(s)
S/o Gul Mohammad Khan,
R/o Naziki Mohalla, Tehsil & District Anantnag,
Kashmir
Through :- Mr. Pankaj Jamwal, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
08.10.2024
(ORAL)
1. The State of Jammu and Kashmir (Now Union Territory of J & K)
is in appeal against the judgment of acquittal dated 12.11.2012
passed by the learned 1st Additional Sessions Judge, Jammu
(hereinafter, to be referred to as "the trial court") in File No.
14/Sessions Challan titled State of J & K Vs. Arshad Ahmed
Khan @ Bashir Ahmed, whereby the trial court has acquitted the
respondent of the offence under Section 20 of the NDPS, Act.
2. The brief prosecution case as has been presented before the trial
court is that on 20.05.1998, a police party led by prosecution
witness Sanjay Kumar laid a Naka at Indira Chowk and at about
06:20 PM intercepted an auto rickshaw bearing registration No.
JK0C-9863 which was coming from Hari Market side. On
questioning the driver of the auto-rickshaw disclosed his name as
Romesh Kumar; the passenger on board disclosed his name as
Bashir Ahmed. From the possession of the passenger, a ragzeen bag
containing charas like material was detected by the team. On a
wireless message, SDPO City North, Jammu reached the spot. The
respondent was given an option, as to whether he would like to be
searched in presence of a Magistrate or a Gazetted Officer. The
respondent chose to be searched before the Gazetted Officer and
accordingly, search was conducted under the supervision of the
SDPO North-Mr. Sewa Singh Mankotia. Charas weighing 4 ½ Kg
was recovered from his possession, out of which 50gms was taken
as a sample. The contraband and the sample were sealed on spot.
On the docket of SHO concerned, FIR was registered and
investigation entrusted to Maqsood Ahmed Bhat-ASI. On
completion of the investigation, challan was presented before the
trial court. The charge under Section 20 of the NDPS Act was
framed against the respondent. The charge was read over and
explained to the respondent, who denied the same and claimed to
be tried.
3. With a view to prove the charge against the respondent, the
prosecution examined PW-1 Sewa Singh-Dy.SP; PW-2 Romesh
Kumar; PW-4 Rasal Singh; PW-5 P S Murti; PW-6 Sukhbinder
Singh; PW-7 Mohd. Rashid Shaheen; PW-8 Jagdish Singh; PW-9
Gul Mohammad Khan and PW-13 Sanjay Sharma.
4. On conclusion of the prosecution evidence, the incriminating
circumstances were put to the respondent and his statement under
Section 342 Cr.P.C was recorded. The respondent denied the
allegations but chose not to lead any evidence in defense. The trial
court considered the matter in light of the evidence on record and
came to the conclusion that the prosecution had miserably failed to
prove the sealing of the contraband seized and the sample picked
therefrom and therefore, acquitted the respondent on the ground
that the prosecution had failed to connect the respondent with the
alleged contraband seized.
5. Having heard learned counsel for the parties and perused the
material available on record, we are of the considered opinion
that the judgment passed by the trial court is legally perfect and is
consonance with the law and evidence on record. Apart from the
fatal defect pointed out by the trial court, we also find that in the
instant case, the contraband was seized on 20.05.1998 and the same
was taken for resealing before the PW-7 Mohd. Rashid Shaheen,
Naib Tehsildar on 22.05.1998. There is no evidence led by the
prosecution to show about the safe custody of the seized contraband
between 20.05.1998 the date of seizure to 22.05.1998 when it was
presented before PW-7 for resealing. Neither the In-charge
Malkhana is a witness nor the Malkhana register has been produced
to show the safe custody of the contraband.
6. In such circumstances, the trial court was correct in arriving at a
conclusion that the prosecution had miserably failed to connect
respondent with the commission of offence. We fully concur with
the view taken by the trial court. Neither the sealing of the
contraband and the sample has been proved nor the safe custody of
the sample from the date of seizure till it was resealed by executive
magistrate has been proved. The prosecution witnesses have given
contradictory versions about the incident which also puts the case
of the prosecution in the realm of suspicion.
7. It is cardinal principle of criminal jurisprudence that the accused is
presumed to be innocent until proven guilty and this presumption
gets fortified by the acquittal of the respondent by the trial court.
Otherwise also, if, on the basis of the evidence on record, two
views are possible, the Appellate Court will take the view which
favours the accused.
8. For all the reasons mentioned hereinabove, we find no merit in the
instant case and the same is accordingly dismissed along with
connected application(s), if any.
9. Interim direction, if any, shall stand vacated.
(Sanjay Dhar) (Sanjeev Kumar)
Judge Judge
JAMMU
08.10.2024
Manan
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
