Farooq Ahmed Dhobi vs State Of Jammu & Kashmir
2025 Latest Caselaw 1603 J&K

Jammu & Kashmir High Court

Farooq Ahmed Dhobi vs State Of Jammu & Kashmir on 31 May, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT JAMMU

                                             Reserved on:   13.03.2025
                                             Pronounced on: 31.05.2025

CRA No. 37/2011
IA Nos. 95/2014, 173/2013, 131/2013,
109/2013 & 54/2011
CrlM Nos. 310/2019[1/2019],
319/2019[2/2019] & 329/2019[3/2019]


1. Farooq Ahmed Dhobi, Aged 45                .....Appellant(s)/Petitioner(s)
years Son of Late Sh. Gh. Mohd.
Dhobi, R/o Near Gurudwara
Kotwal Mohalla, Kishtwar.
Presently Lodged in District Jail,
Amphalla, Jammu.

2. Shahnawaz, Aged 28 years Son
of Sh. Ghulam Ali, R/o Village
Soti, Tehsil Gundoh, District Doa.
Presently Lodged in District Jail,
Amphalla, Jammu.
3. Bharat Bhushan Wazir, Aged 38
years Son of Late Mohan Lal
Wazir, R/o Hidyal, Kishtwar.
Presently lodged in Distirct Jail,
Amphalla, Jammu.

                     Through: Mr. Sunil Sethi, Sr. Advocate with
                              Mr. Navyug Sethi, Advocate
                vs
State of Jammu & Kashmir, Through                      ..... Respondent(s)
Police Station, Kishtwar.

                     Through: Mr. Rajesh Kumar Thappa, AAG

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                              JUDGMENT

1. The appellants are aggrieved of the judgment of conviction dated

30.09.2011 and order of sentence dated 11.10.2011 passed by learned

Principal Sessions Judge, (Special Judge), Kishtwar (for short „the trial

court‟), by virtue of which, they were sentenced to undergo rigorous

imprisonment for a period of 10 years alongwith fine of Rs. 1,00,000/- for

commission of offence under Section 21(b) of NDPS Act. The appellants

have impugned the judgment of conviction and order of sentence on the

ground that the learned trial court has not appreciated the evidence in its

right perspective.

2. Mr. Sunil Sethi, learned Senior counsel for the appellants has

argued that the recovery of the alleged contraband from the appellants was

doubtful as the witnesses examined by the prosecution in support of charge,

have made contradictory statements to each other. He has laid much stress

that neither the Malkhana register was produced/proved by the prosecution

nor Malkhana In-charge was examined to demonstrate that after the

recovery of the alleged contraband was affected from the appellants,

alleged contraband and samples extracted from the same were kept in safe

custody. He has further argued that the prosecution has not even proved the

re-sealing of the contraband by the Executive Magistrate.

3. Mr. Rajesh Kumar Thappa, learned AAG, for the respondent has

argued that the prosecution had proved the recovery of the contraband from

the appellant, namely, Farooq Ahmed by leading cogent evidence and the

learned trial court has rightly appreciated the evidence and there is no

infirmity in the judgment passed by the learned trial court.

4. Heard learned counsels for the parties and perused the record.

5. Briefly stated, the prosecution case is that a docket was sent by

Surjeet Kumar, Sub Inspector of Police Station, Kishtwar to Police Station,

Kishtwar wherein it was stated that on 30.08.2009, he along with personnel

of Police and 26 RR was on Naka duty near Dak Bungalow Kishtwar road,

at around 1830 hours, one motorcycle bearing Registration No. JK0AA

5642 was stopped and during checking, three persons, who were riding the

motorcycle, disclosed their names as Farooq Ahmed, Shahnawaz and

Bharat Bhushan. The motorcycle was being driven by Farooq Ahmed.

During search of Farooq Ahmed, from his shirt, black coloured packet was

recovered on which, „Made in Afganistan‟ was written. Inside the packet,

white coloured narcotic substance was found and on enquiry, the accused

person disclosed that the narcotic substance was heroin, which they were

carrying for selling. On receipt of that docket, FIR No. 141/2009 under

Section 8/21/22 NDPS Act was registered against the appellants. SHO

arrived on spot and seized the contraband, which was in three packets,

weighing 740 gms. in total. 20-20 gms. of samples were extracted from

each packet and sealed on spot for its chemical analysis. The contraband

and the samples were re-sealed before Executive Magistrate, Kishtwar and

thereafter sent for chemical analysis to FSL, Jammu. After the conclusion

of the investigation, Investigating Officer established the offences under

Sections 8/21/22 NDPS Act against the appellants. The charge sheet was

filed on 06.11.2009 and thereafter, charges under Section 8/21/22 NDPS

Act were framed against all the appellants vide order dated 22.12.2009. As

the appellants did not plead guilty, prosecution was directed to lead

evidence. The prosecution has examined all the nine witnesses. Statements

of the appellants were also recorded under Section 342 Cr.P.C. The

appellants did not choose to lead any evidence in defence. The learned trial

court, vide judgment and order impugned, convicted and sentenced the

appellants as mentioned above.

6. In order to appreciate the contentions raised by the appellants, it is

necessary to extract relevant portion of the evidence led by the prosecution.

7. PW 1 Surjeet Kumar, Sub Inspector SSR Camp Kishtwar stated

that on 30.08.2009, he was on Naka duty at Dak Banglow along with

Selection Grade Constable Lok Raj, Constable Iftitaq Hussain, Constable

Mohd. Yousaf, Constable Kamaljeet Singh along with officers of 26 RR

namely, Ramji Tiwari. During the checking of vehicles, at 6:30 pm, one

motorcycle with two pillion riders coming from Bus stand Kishtwar

towards Kuleed was stopped. Driver of the motorcycle was having

something in his shirt which was visible. He asked him as to what he had

kept inside the shirt. He brought out black coloured packet of rexine

material from his pocket. When he asked him about the contents of the

packet, he disclosed that it was heroin. He prepared a docket and sent it

through Lok Raj SGC to SHO P/S Kishtwar. He proved the docket

(EXPW-SK). Thereafter, SHO came on spot. He seized the packet of

heroin which was weighed on spot and was found to be 740 gms. All the

three accused were arrested. He proved the seizure memo (EXPW-R/C).

His statement was also recorded under Section 164-ACr.P.C. During cross-

examination, he stated that nakas are laid in routine. On 23.08.2009, he laid

naka on the instructions of senior officer. On Kishtwar-Padder road, there

remains rush of people and during evening, large number of people move

here and there. He did not affect the search of the accused but had only

asked him, who on his own brought out one packet from his shirt. He did

not prepare any recovery memo on spot but had only sent a docket. It was

necessary for him to conduct search of the accused in presence of

Magistrate or Gazetted Officer but as all of sudden checking was done, he

did not deem it necessary to call the Magistrate. If he had prior information,

he would have got the search of the accused affected before the Magistrate.

At the time of recovery, he did not call any civilian on spot. SHO arrived

on spot within 10-15 minutes. The packet was weighed in a fruit shop

which was on the front side, but he does not know the name of shopkeeper.

SHO prepared the seizure memo, however, civilians were called on spot,

but they refused. He knows the accused persons from the day of occurrence

and as per his knowledge, they did not have any militancy record. Seal

impression was kept by SHO with him. SHO prepared the seizure memo on

spot.

8. PW 2 Rajinder Kumar stated that on 30.08.2009, he was posted

with SHO P/S Kishtwar. He knows only Farooq Ahmed and Ashok. The

accused persons present in the court are known to him. He was

accompanied by SHO, ASI Surjeet Singh. Naka was laid near Dak

Bangalow Kishtwar. Accused-Farooq Ahmed and Ashok had come on

motorcycle, when they were stopped. SHO affected their search and from

possession of accused-Farooq Ahmed, heroin was recovered. Seizure

memo was prepared, and the weight of the contraband was found to be 800

gms. Two samples of 20-20 gms. were extracted on spot. He proved the

seizure memo (EXPW-RK). He identified three sealed packets, shown to

him in the court. During cross-examination, he stated that during naka, the

documents of the vehicle were being checked. The accused were coming

from Kishtwar towards Dak Bangalow. Two persons were riding the

motorcycle. He was stopping the vehicles and conducting the search. The

search was being affected by Surjeet Singh. He was told by SHO that

seized contraband was heroin. The packet was weighed in a karyana shop

by SHO and ASI Surjeet Singh. Packet was opened by SHO and sealed on

spot. Packet was sealed in the shop of one Dhani Ram. He does not know

who brought the seal.

9. PW 3 Constable Kewal Kumar has stated that in the month of

August, 2009, he was posted in Police Station, Kishtwar. He was PSO with

SHO, who was on patrol duty at Dak Banglow. SHO seized the articles i.e.

one packet weighing 800 gms. Out of the said packet, two samples of 20/20

gms each were extracted. SHO prepared the seizure memo (EXPW-RK).

He proved the same. During cross-examination, he stated that he cannot say

as to how SHO came to know about the occurrence. When he reached on

spot, the packet was already lying with Surjeet Singh. In his presence, IO

did not call any civilian on spot. After seizure, packets were kept by IO

with himself.

10. PW 4 Darshan Kumar has stated that on 30.08.2009, he was

posted in the Police Station, Kishtwar. He along with SPO Dimpal Kumar

had gone towards Dak Bangalow, where one motorcycle bearing

JK02/5642 was seized. Seizure memo was prepared. He proved the seizure

memo (EXPW-DK). Dimpal Kumar had also signed the seizure memo.

During cross-examination, he stated that there used to be lot of movement

of the people at Dak Banglow road. SHO had called the shopkeepers on

spot but nobody came.

11. PW-5 Dimpal Kumar also deposed on the lines of PW 4 Darshan

Kumar and he too proved the seizure memo of the motorcycle (EXPW

DK).

12. PW-6 Bharat Bhushan Constable stated that he was performing

his duty near Cinema Hall, Army Camp. He was on duty at Naka near Dak

Bangalow along with Subedar Karan Singh. Three men came riding on

motorcycle from Bus stand towards Kuleed. In his presence, nothing was

recovered from the accused because at the place of checking, he was

performing duty at distant place. He could not identify the accused persons

as there was darkness. During cross-examination, he stated that no papers

were prepared on spot, and Police did not record his statement. It was so

dark that one person could identify another with difficulty at a distance of

one meter. In his presence, Police did not seize any article.

13. PW-7 Subedar Ramji Tiwari stated that on 30.08.2009, at about

6:30 pm, he was performing his duty in front of Dak Banglow. He

identified the accused present in the Court. On spot, they were checking all

the vehicles and at that time, one motorcycle came from Bus stand

Kishtwar on which three persons were riding. The motorcycle was being

driven by the appellant-Farooq Ahmed and when the motorcycle reached

near them, it was stopped. The appellant, who was driving motorcycle, was

having protruded belly. Sub Inspector Surjeet asked him about the contents

of it and the appellant Farooq Ahmed replied that it was heroin. SI asked

the appellant to take heroin out of the shirt. The heroin was packed in black

coloured rexine. The packet was brought out and brown coloured powder

was found. The names of the other accused were asked, and they disclosed

their names as Shahnawaz and Bharat Bhushan. S.I. Surjeet prepared a

docket and sent the same to Police Station through policeman. In the

meantime, SHO came on spot. Civilians were called but no one came. His

statement was recorded under Section 164-A Cr.P.C. During cross-

examination, he stated that when he was performing naka duty, that day,

police was having information. He knows SI Surjeet from the day of

incident. Search was affected by ASI Surjeet Singh, who after search had

not prepared recovery memo but wrote a docket to then SHO. After they

reached on spot, SHO came on spot after 1 ½ /2 hours later. In his presence

SHO did nothing.

14. PW-8 Rohit Koul, Assistant Scientific Officer proved FSL report

marked as EXPW-RK and as per the report, DiacetylMorphine (Heroin)

was detected in exhibit No. K-593/09. During cross-examination, he stated

that as per letter dated 12.09.2009, the date of dispatch has been shown as

12.09.2009 whereas it was forwarded to the laboratory on 16.09.2009 for

chemical analysis.

15. PW9 Davinder Singh, Investigating Officer stated that on receipt

of one docket from SI Surjeet Singh, FIR No. 141/2009 was registered, and

he proceeded towards the place of occurrence at Dak Bungalow Chowk

Kishtwar. He prepared the seizure memo (EXPW-RK). He also identified

the docket (EXPW-SK), seizure memo of motorcycle (EXPW-DK). Site

plan was also prepared by him (EXPW-DS). The seized contraband was

weighed on spot. Samples were extracted and sent for chemical analysis to

FSL. Black coloured resin bag on which, „Made in Afganistan‟ was written

was containing white coloured heroin. Heroin was weighing 740 gms and

with the weight of the bag, it was 800 gms. He got the recovered

contraband, sealed from Executive Magistrate and sent the samples for

chemical analysis to Jammu. Thereafter, expert opinion was obtained, and

he filed the challan against the appellants for commission of offence under

Section 8/21/22 NDPS Act. During cross-examination, he stated that he

received a docket from Surjeet Singh at 06:30 pm. There remains a rush of

people on the road. Heroin was produced before him by SI Surjeet Singh,

who was accompanied by other officials. In his presence, heroin was not

recovered from the possession of the accused. He did not conduct the

search of the accused. However, search was affected by SI Surjeet Singh.

While the search was in progress, he also arrived on spot. The contraband

was recovered from the appellant-Farooq Ahmed as the recovery from the

appellant was chance recovery, therefore, he did not deem it necessary to

get the appellant searched before the Magistrate. During the preparation of

seizure memo, he summoned large number of people, but none came on

spot. At the time of sealing the contraband, he placed the ring on

supurdnama but no supurdnama was prepared. At the time of re-sealing, he

did not prepare any memo and, also he did not deem it necessary to keep

the Executive Magistrate as witness. Seizure was prepared on 30.08.2009

and on 18.09.2009, he had dispatched the samples to FSL. From

30.08.2009 till 15.09.2009, heroin was kept in police malkhana. The

contraband was got re-sealed from Executive Magistrate on 03.09.2009.

Head Constable Lekh Raj was Malkhana Incharge but he has not been cited

as witness in the case. He had also not annexed any written proof with the

challan in that regard however, he had mentioned it in the case diary. FSL

report was received on 15.10.2009.

16. This is the whole evidence led by the prosecution. The allegations

against the appellants are that on 30.08.2009 while they were riding on a

motor-cycle bearing registration No. JK02AA 5642, they were stopped and

when ASI Surjeet Singh enquired from the appellant-Farooq Ahmed with

regard to his protruded shirt, he brought one packet out of the same and on

a query by ASI Surjeet Singh, he stated that it was heroin. It is also the

prosecution case that a docket was written by ASI Surjeet Singh, pursuant

to which, FIR No. 141/2009 was registered with Police Station, Kishtwar.

After the registration of FIR, SHO arrived on spot.

17. When the statements of the witnesses are examined, it is found that

there are different versions of arrival of SHO on spot, search of accused

and recovery of contraband. PW Surjeet Kumar has stated that the

appellant-Farooq Ahmed himself brought out one packet from his shirt and

himself stated that it was heroin. He has further stated that SHO arrived on

the spot within 10 to 15 minutes. Interestingly, PW Rajendra Kumar, who

was posted with SHO, has stated that two accused namely Farooq Ahmed

and Ashok were riding the bike, when they were stopped. SHO affected

their search, and heroin was recovered from the possession of appellant-

Farooq Ahmed. PW Subedar Ramji Tiwari has stated that ASI Surjeet

Kumar conducted the search, and S.H.O. came on spot 1½ to 2 hours later.

PW Kewal Kumar has stated that when he reached on spot, packet was

lying with Surjit Singh. PW Bharat Bhushan has stated that nothing was

recovered in his presence. Davinder Singh-I/O has stated that search was

affected by Surjeet Singh, whereas PW Surjeet has nowhere stated that he

conducted the search of appellants. The different versions of the witnesses

mentioned above, in respect of same fact, make the prosecution case

doubtful and under such circumstances, it would not be prudent to rely on

their statements for connecting the appellants with the commission of

offence. Constable Lok Raj, who carried the docket to Police Station for

registration of FIR, has not been cited as a witness in the challan.

18. Further, a perusal of record indicates that link evidence is absolutely

missing. The contraband was seized on 30.08.2009 and there is nothing on

record as to where the recovered contraband and samples extracted from

the same, were kept after its seizure. Though I/O Davinder Singh has stated

that heroin was kept in Malkhana from 30.08.2009 till 15.09.2009 but

neither Malkhana register was produced before the learned trial court nor

Malkhana In-charge was examined to prove the safe custody of samples

from 30.08.2009 till 18.09.2009, when the same were received by F.S.L.

Besides, contraband was re-sealed by the Executive Magistrate on

03.09.2009. Again, there is no evidence that seized contraband, and

samples were taken out from Malkhana on 03.09.2009 for the purpose of

resealing and were deposited back after resealing. Executive Magistrate

was neither cited nor examined to prove the factum of resealing of the

seized contraband and samples. Thus, this court has no hesitation to

observe that the prosecution has not been able to prove that samples

extracted from seized contraband only were sent to F.S.L for chemical

analysis and in absence of this missing link in the chain of evidence, the

F.S.L. report loses its relevance.

19. This Court has examined the judgement delivered by the learned trial

court and finds that the learned trial court has not rightly appreciated the

evidence in its proper perspective and in fact, has not taken the note of

above-mentioned discrepancies noted by this Court. In such view of the

matter, it would not be safe to convict the appellants when there are major

deficiencies in the prosecution case and the prosecution has not been able

to prove its case beyond reasonable doubt.

20. In the light of above discussion, this Court is of the considered view

that the judgement of conviction dated 30.09.2011 and the order of

sentence dated 11.10.2011 passed by the learned trial court in case titled

"State Vs. Farooq Ahmad Dhobi and Ors." arising out of F.I.R

No.141/2009 of Police Station, Kishtwar are not sustainable in the eyes of

law and the same are, accordingly, set aside. The appellants are acquitted,

and their bail and personal bonds are discharged. The challan stands

dismissed.

21. Appeal is allowed.

(RAJNESH OSWAL) JUDGE

Jammu 31.05.2025 Neha-II Whether the order is speaking: Yes Whether the order is reportable: No