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2020 Supreme(J&K) 562
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Rajnesh Oswal, J.
(Through Video Conference)
Mohammad Afzal Dar and Anr.
Versus
Senior Superintendent of Police Bandipora and Anr.
CRMC No.08/2020, CrlM No.12/2020, Bail App No.107/2019, CrlM No.574/2020, CrlM No.580/2020
Decided on 24.12.2020
Appearing Counsel:
For the Applicant(s):Mr. Ahmad Javid, Advocate
For the Respondent(s): Mr. Sheikh Feroz, Dy. A.G.
The main legal point established in the judgment is the requirement of conclusive evidence from the Chemical Analyst/Scientific Expert to establish the identity of the seized substance under the NDPS Act, as well as the possibility of retesting in exceptional cases.
Headnote:
NDPS Act - Quashing of FIR - Sections 8, 21, 29 - The court discussed the provisions of the Narcotics Drugs Psychotropic Substances Act, 1985, particularly focusing on the requirement of conclusive evidence from the Chemical Analyst/Scientific Expert to establish the identity of the seized substance. The court emphasized the necessity of retesting in exceptional cases and highlighted the lapses on the part of the Investigating Officer, prosecution, and the FSL Expert. The charges framed against the petitioners were set aside, and the Investigating Officer was directed to further investigate the matter and get the seized material retested from an approved Government laboratory.
Fact of the Case:
The petition was filed for quashing of FIR under Sections 8, 21, 29 of the NDPS Act, based on the argument that the FSL report did not establish the recovered material as brown sugar. The trial court had framed charges against the petitioners, but the FSL report did not support the prosecution's claim.
Finding of the Court:
The court found that the charges framed against the petitioners were not sustainable due to the lack of conclusive evidence from the FSL report. It also highlighted the lapses on the part of the Investigating Officer, prosecution, and the FSL Expert. The court directed the Investigating Officer to further investigate the matter and get the seized material retested from an approved Government laboratory.
Issues: The main issue was the sufficiency of evidence to support the charges framed against the petitioners under the NDPS Act, particularly regarding the identity of the seized substance as brown sugar.
Ratio Decidendi: The court emphasized the necessity of conclusive evidence from the Chemical Analyst/Scientific Expert to establish the identity of the seized substance. It also highlighted the possibility of retesting in exceptional cases and the importance of addressing lapses in the investigation and FSL report.
Final Decision: The charges framed against the petitioners were set aside, and the Investigating Officer was directed to further investigate the matter and get the seized material retested from an approved Government laboratory. The petitioners were also granted interim bail with specific terms and conditions.
Judgment
Rajnesh Oswal, J.—The present petition has been filed for quashing of FIR bearing No. 38/2019 under Sections 8, 21 and 29 of Narcotics Drugs Psychotropic Substances Act, 1985 (for short the Act) registered with Police Station, Sumbal as well as proceedings conducted pursuant thereto by the trial court.
2. Learned counsel for the petitioner submits that after the conclusion of the investigation, challan/charge-sheet has been filed in the court of Principal Sessions Judge, Bandipora (hereinafter to be referred as the trial court) and also charges have been framed against the petitioners on 15.07.2019 for commission of offence under sections 8, 21 and 29 NDPS Act. It is further stated that the FSL report dated 24.04.2019 relied upon by the prosecution clearly reveals that the material allegedly recovered from the petitioners is not the brown sugar as alleged in the charge sheet. The application for grant of bail filed by the petitioners was also dismissed by the learned trial court vide order dated 21.09.2019. The petitioners have also challenged the order dated 15.07.2019, whereby the charges were framed by the learned trial court, primarily on the ground that the FSL report clearly negates the story of the prosecution regarding alleged recovery of brown sugar from the petitioners and on the basis of said FSL report, no offence under the Act is made out and the charges framed by the learned trial court for commission offences under section 8, 21 and 29 of the Act are bad in law and as such, required to be quashed.
3. Alongside the present petition for quashing the aforesaid FIR, the petitioners have also filed an application for grant of bail in the above mentioned FIR. Respondent has filed objections to both the petitions for quashing of FIR and grant of bail. The Respondent has virtually supported the orders passed by the trial court on the basis of same reasons those have been furnished by the trial court in both the orders of framing of charge as well as for refusing of bail.
4. Learned counsel for the petitioners have vehemently argued that once the FSL report does not establish that the material sent for chemical examination is brown sugar, possession of which has been made punishable under the Act, the petitioners cannot be prosecuted under the Act and the charges framed by the learned trial court are also bad in law and merely on the basis of the observation that the nature of the substance that was recovered from the petitioners is to be ascertained during trial, the petitioners cannot be put to trial.
5. Mr. Sheikh Feroz, learned Dy. A. G. appearing for the respondents, on the contrary, submitted that the FSL report does not conclusively determine that no substance as prohibited under the Act has not been recovered from the petitioners. Mr. Feroz has vehemently argued that the material allegedly recovered from the petitioners be sent for further chemical examination.
6. Heard, considered and perused the record meticulously.
7. Before appreciating the rival contention of the parties, it would be appropriate to have brief resume of the prosecution story. On 15.03.2019, FIR bearing No.38/2019 u/s 8, 21 and 29 of the NDPS Act was registered at Police Station, Sumbal at 19.10 hours pursuant to the docket brought by the constable, Irshad Ahmad. It was stated that on 15.03.2019 at 18.45 hours when the Police party was discharging naka duty at Markundal General Road, they intercepted a motorcycle bearing registration No. JK-15-9067 that was coming from Hajim towards Bandipora. Two persons were riding the said bike and they disclosed their names as Nazir Ahmad Dar and Mohammad Afzal Dar. On their personal search, one polythene bag containing about 570 grams Brown Sugar in the form of powder was recovered from the possession of Nazir Ahmad Dar and another polythene bag containing about 360 grams Brown Sugar was recovered from the possession of the Mohammad Afzal Dar.
8. The seized contraband was sent to the Forensic Sci
