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JAMMU AND KASHMIR HIGH COURT
Rajesh Sekhri, J.
State Through Police Station Awantipora – Appellant
versus
Abdul Rashid Dar – Respondent
Crl.A (AS) No.2 of 2021 and Crl.M No.8 of 2021
Decided on 19.3.2024
Narcotic Drugs and Psychotropic Substance Act, 1985 – Sections 8/20, 42 and 55 – Criminal Procedure Code, 1973 – Section 378 – Seizure of Charas – Appeal against acquittal – Prosecution has failed to prove that contraband recovered in present case was kept in safe custody and forwarded to FSL in accordance with law and without any delay – Prosecution is obliged to prove that contraband after its recovery and seizure from accused was kept in safe custody, in Malkhana of concerned Police Station under proper entry in Malkhana register – Neither SDPO nor SHO have been examined – Investigating Officer has not appeared in witness box to explain as to whether information received by him was reduced in writing and copy of same was handed over to his immediate officer within 72 hours in terms of Section 42 of NDPS Act – Most vital flaw in prosecution case is failure on part of prosecuting agency to examine Scientific Officer of Forensic Science Laboratory, who is stated to have examined substance recovered in present case – Prosecution evidence is not only replete with material contradictions and discrepancies but mandatory provisions of NDPS Act have been observed in breach by Investigating Agency – Judgment of acquittal upheld. (Paras 10, 18, 20, 24, 32 and 33)
Result: Appeal dismissed.
Key Points: - (!) (!) (!) - (!) (!) - (!) (!) - (!) - (!)
JUDGMENT
This Appeal has been directed against judgment dated 20.07.2018 passed by learned Principal Sessions Judge Pulwama (for short ‘the trial court’), vide which respondent has been acquitted of the charges for offences under Sections 8/20 of the Narcotic Drugs And Psychotropic Substance Act, 1985 (‘NDPS Act’, for short).
2. Before a closer look at the grounds urged in the memo of Appeal, it shall be apt to have an overview of the background facts.
3. Case of the appellant-State, prosecution in the trial court, is that on 27.12.2008, a police party of Police Station Awantipora, during routine checking at village Laddermad Pulwama, spotted a person in suspicious circumstances, who, on seeing the police party, made an attempt to give a slip, however, he was followed and overpowered by the patrolling party. On a personal search, he was found carrying a polythene bag containing ‘charas’ weighing 01 kg. Accordingly, Incharge of the patrolling party, ASI Soleh Rehman dispatched a docket through Constable Tariq Ahmad to Police Station Awantipora. SDPO and SHO were informed about the occurrence. On receipt of this docket, investigation came into vogue, which culminated into final report in terms of Section 173 CrPC against the accused/respondent for the aforesaid offences.
4. Respondent was charged by the trial court on 04.04.2009, whereby he pleaded innocence and claimed trial, which prompted the trial court to ask for the prosecution evidence and prosecution examined five witnesses.
5. On culmination of the prosecution evidence, statement of the respondent-accused, in terms of Section 342 CrPC was reduced into writing, whereby he denied the incriminating imputations arrogated to him in the statement of prosecution witnesses and refused to enter the defence.
6. On appreciation of the prosecution evidence, learned trial court not only found the prosecution evidence discrepant on material aspects but also observed that mandatory provisions of NDPS Act have been observed in breach. Learned trial court also expressed its displeasure about the standard of investigation carried out in the present case and therefore, respondent came to be acquitted of the charges.
7. Appellant-State has questioned the impugned judgment primarily on the conventional premise that respondent has been acquitted by the trial court despite sufficient material on record to sustain conviction, and that learned trial court has failed to appreciate the prosecution evidence in right perspective.
8. Having heard the rival contentions and perused the record, I do not find any illegality or impropriety in the impugned judgment for the following reasons.
9. Instead of giving a detailed resume of the statements of prosecution witnesses, it is proposed to refer to the relevant part of their testimonies as, when and where required.
Infringement of Section 55 of NDPS Act:—
10. At the foremost, prosecution has failed to prove that contraband recovered in the present case was kept in safe custody and forwarded to FSL in accordance with law and without any delay. It is pertinent to note that in view of stringent provisions regarding punishment and grant of bail, the legislature in its wisdom enacted section 55 of the NDPS Act to ensure that officer Incharge of Police Station shall immediately take charge and keep the alleged contraband in safe custody, in order to rule out any possibility of tampering with the contraband. Prosecution is obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register. The prosecution is also obliged to prove that said sample of the contraband was forwarded to FSL without any delay.
11. Chhattisgarh High Court in Ganga Bhai v. State of M.P. reported as 2012 (4) Crimes (HC) 687 in a similar fact situation has made following observation in this respect:—
“30. After having considered the evidence led by the pr
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