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2014 Supreme(J&K) 268
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mohammad Yaqoob Mir,Janak Raj Kotwal, JJ.
Gh. Mohd. Bhat & Anr. -Appellant
Versus
State Of J&K -Resopndent
Criminal Appeal No. 39-2013 and Cr.MP No. 68-2013
Decided On : 10-07-2014
P.N. Goja, Akshay Koul, Munish Chopra.
The main legal point established in the judgment is the requirement for scrupulous compliance with the provisions of the NDPS Act, the need for a fair trial, and the burden of proof beyond doubt in cases involving narcotic substances.
Headnote:
NDPS Act - Conviction under Section 8/20 - Summary of Acts and Sections: Section 8/20 of NDPS Act - The court discussed the provisions of Section 35 & 54 of NDPS Act, the burden of proof, and the strictness of punishment under the Act. The court also highlighted the importance of fair trial and the need for scrupulous compliance with the provisions of the Act.
Fact of the Case:
The appellants were convicted for possessing narcotic substances and sentenced to 20 years rigorous imprisonment and a fine. The prosecution's case was based on the recovery of narcotics from a vehicle during routine traffic checking. The accused denied complicity and claimed innocence. The prosecution produced only 7 out of 12 listed witnesses, and the defense did not produce any witnesses.
Finding of the Court:
The court found that the prosecution's evidence was inconsistent and full of doubts. It noted that the possession of the contraband with the accused was not established beyond doubt. The court also criticized the trial court for not appreciating the inconsistencies and contradictions in the evidence properly.
Issues: The issues included the inconsistency and contradiction in the prosecution's evidence, non-production of witnesses, and the failure to follow the prescribed trial procedure.
Ratio Decidendi: The court held that the prosecution failed to prove the case beyond doubt, and the conviction and sentence were not in consonance with the law. It emphasized the need for a fair trial and scrupulous compliance with the provisions of the NDPS Act.
Final Decision: The appeal succeeded, and the conviction and sentence were set aside. The accused were acquitted and ordered to be released forthwith if not required otherwise. The recovered material was to be destroyed, and the trial court record along with a copy of the judgment was to be sent to the trial court.
1. Appellants have been convicted for having committed offence punishable under Section 8/20 of NDPS Act, sentenced to 20 years rigorous imprisonment and fine of Rs. 2.00 lacs each by the trial court vide its judgment dated 16.03.2013, which is impugned in this appeal.
2. Case of the prosecution, as is unfolded on perusal of the records is that, on 23.04.2009 during routine traffic checking one Tata Sumo vehicle bearing registration no. JK-01L-3508, on its way from Srinagar to Jammu, was stopped; its middle seat was occupied by accused Ghulam Mohd. Bhat and Feroz Ahmad, who had kept a bag (Toda) beneath their seat. They prevaricated checking of the bag which gave rise to suspicion. On checking, four packets were recovered smelling `charas'(cannabis). On opening the packets, approximately 8 kg `charas' were found, which was being carried by the accused for illegal trade to Mumbai. Report(docket) was prepared and sent to the police station through Constable Abdul Qayoom for registration of the case, based on which case has been registered as FIR No. 24/2009, Police Station, Batote, District Ramban. Investigation of the case culminated in filing of challan(charge-sheet) on 25.07.2009.
Charge against the accused has been framed on 20.01.2010 for commission of offence under Section 8/20 of NDPS Act. Prosecution in support of its case, out of the listed 12 witnesses, has produced only 7 witnesses i.e. PW -2, 4, 6, 8, 9, 10 & 11. Accused have been examined in terms of Section 342 Code of Criminal Procedure, they have denied complicity in the crime and claimed to be innocent. No witness has been produced in defence.
3. Learned counsel for the appellants projected that:-
i) the evidence as produced by the prosecution is inconsistent, contradictory and full of doubts;
ii) the recovery of narcotic substance from the possession of the accused is not proved;
iii) neither two independent witnesses and Investigating Officer have been produced nor any explanation for non-production has been tendered which gives rise to drawing of adverse inference;
iv) the samples of narcotic substance, as alleged to have been recovered on 23.04.2009, is shown to have been sent to FSL on 26.04.2009 which has been received by the FSL on 27.04.2009. No evidence has been produced so as to explain as to where the samples drawn had remained for 3 days;
v) Section 42 and 50 of NDPS Act has not been complied with;
vi) the recovered contraband was not produced in the court during the trial.
vii) the safeguards available have been infringed.
4. Learned counsel appearing for the respondents projected that the offence committed by the accused is proved beyond doubt. Accused have indulged in criminal activities which are anti-social and destroys social fiber. Such type of crime does not deserve any leniency. Trivial contradictions or inconsistencies are to be overlooked. The recovery was a chance recovery, furthermore, it was not affected from the person of the accused, therefore, there was no requirement to comply with the provisions of Section 42 and 50 of NDPS Act.
5. We have bestowed out thoughtful consideration and have meticulously gone through the records of the case. Why only 7 out of 12 listed witnesses have been produced, has not been explained by the prosecution. It is trite that it is quality not quantity of evidence which matters, but non-production more particularly of independent witnesses gives rise to drawing of adverse inference permissible under Section 114(g) of the Evidence Act. It shall be proper first to ascertain as to whether on the strength of the statement of witnesses, as produced, case against the accused is proved or not.
6. Out of the listed 1 to 3 independent witnesses namely, Bashir Ahmad Bhat, Mulkh Raj and Assadullah Bhat, only Mulkh Raj has been produced, rest two have not been produced for unknown reasons.
7. Mulkh Raj (PW-2) was posted as Forest Guard at the Forest Check Post located adjacent to the place of occurrence. He has stated
