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2019 Supreme(J&K) 235
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Ali Mohammad Magrey, J.
State of J&K – Appellant
Versus
Nirmal Singh and Ors. – Respondents
CRAA No.54/2007
Decided on 11.7.2019
For the Petitioner(s): Mr. Aseem Sawhney, AAG
For the Respondent(s):Mr. Rajnesh Oswal, Advocate
Headnote:
Narcotic Drug and Psychotropic Substances Act, 1985 – Sections 8/20, 22 and 29 – Seizure of Heroin and Brown Sugar – Acquittal appeal – Best evidence would have been seized materials which ought to have been produced during trial and marked as material objects – There is no explanation for failure to produce them – Mere oral evidence that materials were seized from accused would not be sufficient to make out offence under NDPS Act – Link evidence adduced by prosecution was not at all satisfactory – Though seized articles are said to have been kept in Malkhana, however, Malkhana register was not produced to prove that it was so kept in Malkhana till it was sent to FSL – Sample seal was not produced in Court which was mandatory – Heroin and brown sugar alleged to have been seized from possession of accused were not produced before trial court, so as to connect them with samples sent to Forensic Science laboratory – Appeal dismissed. (Paras 10 to 13).
JUDGMENT :
1. This acquittal appeal has been filed against judgment/order dated 26th July, 2007 passed by 1st Additional Sessions Judge, Jammu in case titled State Vs. Swarn Singh and ors., by virtue of which accused (respondents herein) have been acquitted of the charges framed against them.
2. The appeal is preferred on the grounds that the impugned judgment and order dated 26.07.2007 is passed against the fact and law and the court below has misappreciated the evidence and misconstrued the law attracted to the facts of the present case.
3. In brief the prosecution’s case is that on 29.03.2003, SHO Police Station, Gandhi Nagar, Jammu received an information from reliable source that four accused (respondents herein) are in the business of smuggling Brown Sugar and Heroin within and outside the State and presently they are having in their possession Heroin and Brown Sugar and are proceeding from Nanak Nagar towards Digiana Sanjay Nagar on foot. On this information, the police registered a case FIR No. 97/2003 under Sections 8/20,22/29 NDPS Act. Investigation was entrusted to Shyam Sharma S.I who along with his constables proceeded towards the spot and reached at Mohalla Preet Nagar along with SDPO South Jammu. A Naka was laid down in presence of the SDPO South Jammu. PSI Incharge Police Post Digiana as per the instructions also brought Executive Magistrate 1st Class on spot. During the Naka four persons came from Nanak Nagar side on foot who were surrounded and during interrogation these four persons disclosed their names as Swaran Lal, Rakesh Kumar, Gurmeet Singh and Nirmal Singh. The Magistrate instructed Mushtaq Ahmed S.I for conducting search and from the search of Swaran Lal two plastic pouches were found to be in his possession. One pouch was containing heroin and other containing brown sugar, one pouch was found to be containing 900 gms of heroin, out of which 50 gms was taken as sample and other packed was found to be containing 250 gms of brown Sugar out of which 50 gms was taken as a sample and the same were packed in two different packets. Similarly, on the search of Nirmal Singh through Mushtaq Ahmed S.I one plastic pouch containing brown sugar was recovered and on weighing the same it was found to be of 550 gms of of which 50 gms was taken as sample. Further, on the search of Rakesh Kumar one plastic pouch containing brown sugar weighing 350 gms was found and 50 gms was taken as sample and the same were packed in two different packets. On the search of Gurmeet Singh, one plastic pouch containing brown sugar weighing 300 gms was found and 50 gms of sample was taken and the same were also packed in two different packets. The seized items were sealed in presence of Executive magistrate. Statement of witnesses were recorded under Section 161 Cr.P.C.
4. On the basis of evidence collected, on 07.10.2003 charges were framed against accused (respondents herein) under Sections 8/20, 22, 29 NDPS Act, to which they pleaded to not guilty.
5. From the side of prosecution, in support of their case, prosecution has cited as many as ten witnesses and all of them have been produced and examined by the prosecution.
6. Thereafter the evidence of the prosecution was closed and the statement of accused were recorded under Section 342 Cr.P.C. in which all the accused (respondents herein) denied recovery of the alleged contraband substance from them and stated that they were falsely implicated. No evidence was led by the accused (respondents herein) in defence, despite opportunity. However, learned counsel produced certain photostat copies of the documents during the course of arguments in the shape of defence.
7. The learned Court below after having considered the entire evidence led by the prosecution found that prosecution has failed to connect the accused with the commission of offence beyond shadow of doubt.
8. While taking into consideration the statement of PW Sham Lal who was the Investigating Officer (I.O) of the case, the court below
