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2020 Supreme(J&K) 268
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur and Rajnesh Oswal, JJ.
(Through Video Conference)
State of J&K
Versus
Ashwani Kumar
Crl LP(D) No.1/2020
Decided on 10-11-2020
For the Applicant(s): Mr. Ravinder Gupta, AAG (on video call)
For the Respondent(s): None
Headnote:
Criminal Procedure Code1973 - section 161 - Narcotics Drugs Psychotropic Substances Act 1985 - sections 8 21 and 22- FIR – Investigation - Police party he tried to run away but was chased and apprehended- On checking intoxicant capsules and bottles of weighing each were recovered- n he sent a docket to Police Station for registration of case and PSI Investigating Officer came on spot and he handed over accused bottles and capsules to him- He proved docket and also saw bottles and capsules in court- In cross-examination he has stated that he cannot tell time when Investigating Officer prepared seizure memo as same was not prepared in his presence- He did not seize recovered material and he kept same with accused only and same was seized by Investigating Officer from him- He does not know as to how material was seized by Investigating Officer and also any FSL form was filled or not- He does not know name of company batch number date of manufacture and date of expiry of seized bottles- re were many shops at Captain and a big and re remains heavy traffic on road also- recovered material was not sealed in his presence –Held Case suffered further dent by non examination of Investigating Officer and prosecution has not given any reason for his non examination- It is worthwhile to mention here that Investigating Officer is one of most important witnesses in NDPS cases- Investigating Officer was under obligation to seal seized contraband allegedly recovered from respondent- is absolutely silent about sealing of samples- It is prosecution story that seal used for sealing sample was kept on has never stated with regard to that and also never produced seal that further creates a doubt about sealing of samples on spot- Investigating Officer is very important witness in present facts and circumstances of case and non examination of Investigating Officer has greatly prejudiced respondent as he has been deprived of his right to cross-examine Investigating Officer on material contradictions noted above in prosecution case cases after recovery it is also duty of Investigating Officer to ensure that after recovery of contraband is made and samples are taken samples are kept in proper custody so as to negate any chance of tampering with evidence- It is duty of prosecution to establish that sample were kept in safe custody when samples were taken for resealing and n from rule out any tampering but re is nothing on record as to where samples were kept during this period- prosecution has not placed on record any register so as to demonstrate safe custody of samples- It furr demolishes case of prosecution court has recorded findings those are based on meticulously appreciation of evidence available on record- It is well settled law that this Court while hearing an appeal can re-appreciate evidence however it should not interfere with order of acquittal if view taken by trial court is reasonable consistent with evidence available on record and findings recorded by trial court are not manifestly erroneous contrary to evidence on record or perverse - Appeal dismissed
Judgment
Rajnesh Oswal, J.—
CrlM No. _____
The Registry to diarize the application for condonation of delay.
Present application has been filed seeking condonation of delay of 202 days’ delay in filing the appeal against the judgment of acquittal dated 27.08.2019.
For the reasons stated in the application, the same is allowed and delay in filing the appeal is condoned.
Special Leave Application is taken on board.
Crl LP (D) No.1/2020
1. The present application has been filed seeking leave to prefer an appeal against the judgment dated 27.08.2019 passed by the Principal Sessions Judge, Kathua (for short the trial court) by virtue of which the respondent has been acquitted of the charges in challan arising out of FIR No. 47 of 2014 of Police Station, Kathua for commission of offences under sections 8, 21 and 22 of the Narcotics Drugs Psychotropic Substances Act, 1985 (for short the NDPS Act).
2. Before appreciating the contentions of learned counsel for the applicant, it would be appropriate to give brief resume of the prosecution story as well as evidence of the prosecution witnesses.
3. On 03.02.2014, ASI Daljit Singh posted in Police Station, Kathua along with other police personnel was on patrolling duty at Shaheedi Chowk, Kathua and about 1530 hours, one person came on foot from old Bus Stand, Kathua and on seeking the police party, tried to run away but was chased and apprehended. He was holding a yellow coloured polythene bag in his hand that was checked and another polythene bag black in colour was found in the same, containing 08 bottles of Corex of 100 ml each and 32 Spasmo Proxyvan Plux capsules were found. After the framing of charges, the prosecution examined as many as 8 witnesses, the brief resume of their testimonies is as under.
4. PW-1 Daljit Singh has stated that on 03.02.2014, he along with Jagdev Singh, Hardev Singh and Roshan Lal were on patrolling duty at Shaheedi Chowk, Kathua, where at about 3.30 PM near Captain Chowk, the accused-respondent herein was coming from Bus Stand side holding a yellow polythene bag in his hand and on seeing the police party, he tried to run away but was chased and apprehended. On checking the polythene bag, 35 intoxicant capsules and 08 bottles of Corex weighing 100ml each were recovered. Then he sent a docket to Police Station, Kathua for registration of case and PSI Varinder Singh, Investigating Officer came on spot and he handed over the accused, Corex bottles and capsules to him. He proved the docket and also saw the bottles and capsules in the court. In cross-examination, he has stated that he cannot tell the time when the Investigating Officer prepared the seizure memo as the same was not prepared in his presence. He did not seize the recovered material and he kept the same with the accused only and same was seized by the Investigating Officer from him. He does not know as to how the material was seized by the Investigating Officer and also as to whether any FSL form was filled or not. He does not know the name of the company, batch number, date of manufacture and date of expiry of the seized Corex bottles. There were many shops at Captain Chowk and a big Mohalla and there remains heavy traffic on the road also. The recovered material was not sealed in his presence.
5. PW-2 Jagdev Singh has stated that on 03.02.2014 while he along with other police personnel was on patrolling duty at Shaheedi Chowk, when reached near Captain Chowk, one person tried to run away but he was chased and apprehended who was holding a polythene bag from which 08 bottles of Corex and 32 Parvon Spas capsules were recovered. ASI sent a docket through SPO Roshan Lal and at about 4.30 PM, Sub Inspector Varinder Singh came on spot and he prepared seizure memo and also took out one bottle and 05 capsules those were sealed as sample for FSL. His signatures were obtained on seizure memo and superdnama of seal that was kept on the superdnama of Hardev Singh. In cross-examination, he has stated that he ca
