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2018 Supreme(J&K) 473
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Tashi Rabstan, Sanjay Kumar Gupta, JJ.
State of J&K – Appellant
Vs.
Deepak Sharma – Respondent
Cr. Acq. Appeal No. 9900018 of 2011
Decided On : 03-08-2018
For the Appellant : Mr. S.S. Nanda, Sr. AAG.
The importance of following mandatory safeguards in NDPS Act cases and the need for legally admissible evidence.
Headnote:
NDPS Act - Narcotic Drugs and Psychotropic Substances - 20, 22 - The court discussed the provisions of the NDPS Act, emphasizing the importance of following mandatory safeguards in investigations and the relevance of the manner of conducting investigations. The court highlighted the contradictions in the statements of witnesses regarding the timing of the recovery, the variation in the weight of the sample sent to the FSL, and the lack of documentation regarding the re-sealing of the sample. The court emphasized the need for legally admissible evidence and the absence of perversity in the trial court's judgment.
Fact of the Case:
The prosecution's case was based on the recovery of a charas-like substance from the accused during a police interception. However, the court found contradictions in the statements of witnesses regarding the timing of the recovery and the weight of the sample sent to the FSL.
Finding of the Court:
The court found that the trial court had thoroughly examined the evidence and concluded that there was no reason to interfere with the acquittal of the accused.
Issues: Contradictions in witness statements, variation in sample weight, lack of documentation on re-sealing of the sample
Ratio Decidendi: The court emphasized the importance of following mandatory safeguards in NDPS Act cases, the need for legally admissible evidence, and the absence of perversity in the trial court's judgment.
Final Decision: The appeal was dismissed, and the trial court's acquittal of the accused was upheld.
Sanjay Kumar Gupta, J.
1. The State has preferred this Criminal Acquittal Appeal against judgment dated 02.02.2011 passed by learned Sessions Judge, Rajouri in case FIR No.112/2008 of Police Station Nowshera, whereby respondent herein stands acquitted of the charges for the offences under Sections 20/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’).
2. The case of the prosecution is based on occurrence dated 30.06.2008 when police while on patrolling and traffic checking duty intercepted a Maruti Van bearing No.5463-JK02K at Rajal TCP. The driver of the vehicle, after parking the said vehicle on the road side, tried to run away and that he was carrying a polythene packet with him. However, the police party over-powered him. The said person was identified as accused Deepak Sharma and from the polythene packet that was in possession of the accused a charas like substance was recovered. The accused was given option to be searched either before a Magistrate or before some police officer. As per the option exercised by the accused, his search was conducted in presence of SDPO, who was called on the spot. The recovered charas like substance was found to be weighing 1kg and 400 gms. It was sealed on spot and its sample was sent to FSL for chemical examination. After investigation of the case, upon receipt of report of FSL, offences u/s 20/22 NDPS Act were found proved against the accused and the charge sheet was accordingly laid against him and vide order dated 17.02.2009, charges for offences u/s 20/22 NDPS Act were framed against the accused. Accused denied the charges and claimed trial of the case.
3. Court below after conclusion of trial acquitted the accused on various grounds. It was held by Court below that no independent witness was examined though incident took place in Bazar; that there is contradiction with regard to time of occurrence in statements of witnesses; that there is no evidence with regard to re-sealing of seized materials; that there is difference of weight of sample taken on spot and which were received in FSL.
4. Heard learned counsel for appellant. Perused the impugned judgment and considered the law on the point. We have given thoughtful consideration to whole aspects of matter. The principles to be adopted by the Appellate Court in appeals against acquittal have been analyzed by Hon’ble the Supreme Court in the decisions reported in (2003) 8 SCC 180, State of Rajasthan v. Raja Ram; (2009) 12 SCC 629 Vijay Kumar v. State; (2015) 11 SCC 124, Upendra Pradhan v. State of Orissa. In State of Rajsthan v. Raja Ram (supra) Hon’ble the Supreme Court has observed thus:
“Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not…….”
5. Before appreciating the evidence again, the brief resume of the statements made by the prosecution witnesses is as under:
PW1 Constable Vajinder Kumar, in his statement deposed that on 30.06.2008, he along with SHO Police Station Nowshera was conducting traffic checking at TCP Rajal. During the said period a Maruti Van bearing registration No.5463/JK02K came over there from
