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2020 Supreme(J&K) 265
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur and Rajnesh Oswal, JJ.
(Through Video Conference)
State of J&K
Versus
Prikshit Singh and Ors.
SLA No.96/2016 c/w CONCR No.88/2016
Decided on 10-11-2020
For the Applicant(s): Mr. Ayjaz Lone, Dy. A.G. (on video call)
For the Respondent(s) Nos.1 and 2:Ms. Meenakshi Salathia, Advocate (on video call)
Headnote:
Criminal Procedure Code1973 - section 161 - NDPS Act - sections 8 21 and 22 – FIR – Enquiry - National Highway and during checking of vehicle three unknown persons came down from an unknown vehicle and on seeing police y started running- On suspicion ASI along with or policemen apprehended m and on enquiry y disclosed respondent herein respectively- On search of all accused seven packets were found in packets containing capsules in each packet and capsules Spas were found from respondent three packets were recovered from pocket of pant of respondent containing capsules each totaling capsules and from search of respondent stripes of Intoxicated capsules were recovered- As respondents could not furnish any permission for possession of capsules y were taken into custody and a docket was written and sent through Constable to Police Station Samba- FIR for commission of offences sections NDPS Act was registered against respondents herein and investigation was entrusted to Sub Inspector After completion of investigation was produced in trial court- Charges were framed Prosecution out listed witnesses in has examined –Held, Neither prepared FSL form on spot- filling of FSL on spot is a very important safeguard to ensure that same sample is not tampered with till final chemical analysis by FSL- It demolishes whole of prosecution case- another very important feature is that seal that was used for sealing capsules samples is required to be kept a witness or than Investigating Officer and in instant case categorically stated that specimen seal was not handed over to him whereas custody of seal remains an unexplained mystery- Another important aspect that capsules were allegedly recovered from respondent and samples were and re is absolutely nothing on record to explain reason delay in sending samples to FSL for chemical analysis- More so in NDPS cases Investigating Officer is very important witness and in instant case re were number of explanations those were required to be elicited from I-O- in case prosecution had produced him as a witness during trial but unfortunately prosecution has not produced him as a witness before trial court which of course has caused a great prejudice to respondents- Besides re is violation of provisions of section NDPS Act that mandates whenever any person makes any arrest or seizure under Act he shall within period of 48 hours after seizure makes a full report of arrest/seizure to his immediate senior officer- In instant case re is absolute non-compliance of section NDPS Act- This coupled with or infirmities entitle respondents to be acquitted point out any evidence that either has been ignored or wrongly appreciated by learned trial court that requires re-appreciation by this Court- in view of such evidence Learned Trial Court had no or option but to acquit accused- trial court while appreciating prosecution case meticulously has rightly come to conclusion that respondents are entitled to be acquitted and that was only course available with trial court - Appeal dismissed
Judgment
Rajnesh Oswal J.—
CONCR No.88/2016
Present application has been filed for condonation of 147 days’ delay for filing the application seeking leave in filing an appeal against the judgment dated 31.12.2015.
For the reasons stated in the application, the same is allowed.
Delay condoned.
Application stands disposed of.
SLA is taken on board.
SLA No.96/2016
1. The present application has been filed seeking leave to prefer an appeal against the judgment dated 31.12.2015 by virtue of which the respondents have been acquitted of the charges for commission of offences under sections 8, 21 and 22 of the Narcotics Drugs Psychotropic Substances Act, 1985 (for short the NDPS Act).
2. Briefly stated, on 31.07.2010, ASI Shyam Singh along with H. C Dalbir Singh, Constable Neelam Kumar, Constable, Rughubir Singh, SPO Raj Kumar and SPO Rajinder Kishore Singh were on patrolling duty at Badhwani National Highway and during checking of the vehicle at 3.30 PM, three unknown persons came down from an unknown vehicle and on seeing the police, they started running. On suspicion ASI Shyam Singh along with other policemen apprehended them and on enquiry, they disclosed their names as Parikshit Singh, Amarjeet Singh and Vickey Kumar, respondent Nos. 1, 2 and 3 herein respectively. On search of all the accused, seven packets were found in the polythene packets containing 100-100 capsules in each packet and total 700 capsules of Paryaml Spas were found from respondent No. 1, three packets were recovered from the pocket of pant of respondent No. 2 containing 100-100 capsules each, totaling 300 capsules and from the search of respondent No. 3, 10 stripes of Intoxicated capsules Parvan Spas totalling 100 capsules were recovered. As the respondents could not furnish any permission for possession of the capsules, they were taken into custody and a docket was written and sent through Constable Neelam Kumar to Police Station, Samba. FIR No. 165/2020 for commission of offences under sections 8, 21 and 22 of the NDPS Act was registered against the respondents herein and the investigation was entrusted to Sub Inspector, Anil Sharma. After completion of the investigation, challan was produced in the trial court. Charges were framed on 05.08.2011. Prosecution out of 10 listed witnesses in the challan has examined seven witnesses, namely, PW-1 Shyam Singh, HC PW-2 Dalbir Singh, PW-3 Sgct Kishore Singh, PW-4 Ct. Raghbir Singh, PW-5, Constable Neelam Kumar; PW-6 HC Tara Chand and PW-7 Sat Paul (Executive Magistrate 1st Class). Three witnesses, namely, PW-8, Director FSL, PW-9 PSI Anil Sharma (I.O.) and PW-10 Inspector Gian Chand Sharma were not examined by the prosecution-applicant.
3. Brief and relevant resume of the prosecution witnesses is as under:
4. PW-1 ASI Shyam Singh stated that on 31.07.2020, he along with other constables had laid a naka and three boys came down from an unknown vehicle and on seeing the police party, they tried to hide themselves, that created a doubt and he along with other constables ran behind them and took them into custody and during search, he recovered seven sealed packets containing 700 capsules of Parymal Spas from respondent No. 1, 300 capsules of Parymal Spas from respondent No. 2 and 100 capsules from respondent No. 3. Thereafter, he prepared the seizure memo of the capsules on spot and took 10-10 capsules as samples for sending the same to the FSL, Jammu for chemical analysis. He wrote a docket for registration of FIR and Investigating Officer(I.O.) came on spot and he handed over the capsules packets and respondents to the I.O. He identified his signature on the seizure memo as well as on the fard supurdnama Mohr. In cross-examination stated that eleven packets of capsules those were seized on spot & were seen in the court were without any seal and same were in polythene without any seal. The capsules can be taken out easily from the polythene packets and can also be put inside the packets easily. He has stated in the st
