Point of Law: Narcotic Substances - Acquittal Upheld - Appellant has failed to convince this court that during period from 23 to 27 sample was in safe custody - Provisions of NDPS Act are stringent and are required to be observed with utmost care so that no innocent is unnecessarily is prosecuted.

JUDGMENT :

Puneet Gupta-J:

1. The appellant-State has preferred appeal against judgment dated 19.04.2019, passed by the learned Principal Sessions Judge, Kathua whereby the respondent has been acquitted of the charges framed under Sections 8/21/22 NDPS Act on the ground that the same is against law and facts of the case; that there is sufficient material on record to convict the respondent; that the prosecution established the case against the respondent through oral as well as the documentary evidence and that the trial court has ignored important piece of evidence.

2. The case set up by the prosecution against the accused was that on 20.01.2016 the naka was laid by DySP (P) Mohd. Adrees Wani near Maggar Khad on National Highway and was accompanied by other police officials. At about 6.15 PM a Car No. JK02BF-2624, driven by the accused was stopped at the naka point during the course of checking of the vehicles and on the personal search of the accused, one white colour polythene envelope containing 9.05 gms of heroine was recovered from the pant of the accused. The written docket from the DySP resulted into registration of FIR No. 27/2016 with Police Station, Kathua under Sections 8/21/22 NDPS Act against the accused. On the completion of the investigation, the challan was produced against the accused for the aforesaid offences. The accused was charged for the commission of offence under Sections 8/21/22 NDPS Act. As the accused did not plead guilty to the charges framed against him, the prosecution was directed to produce evidence in support of its case.

3. The statement of the accused was also recorded under Section 342 Cr.P.C on the closure of prosecution evidence. The accused did not choose to produce any evidence in defense.

4. The prosecution produced number of witnesses in support of its case. It is profitable to take stock of the statements of the witnesses before proceeding further in the matter.

5. PW-1 Mohd. Idrees Wani, DySP has deposed that it took about two hours to complete the proceedings on spot and which relate to seizure and weighing of the contraband. The proceedings were completed by I.O while sitting on the side of the road. No civilian was present on spot at the naka point. PW-2 Sanjeevan Jyoti, S.I has deposed of intercepting of the car of the accused and recovery of 9.05 gms of charas which was kept in a white polythene envelop in the pant by the accused. The contraband was seized. Two separate parcels containing representative sample and remaining one were prepared and marked as A & B. The witness has further deposed that there are two hotels at some distance from the naka point and no one was called from the hotels. The civilians were also moving on the spot and called by the I.O. The FSL form no. 29 was not filled up on spot. The proceedings were conducted by I.O while sitting on the roadside. PW-3 Surinder Singh, Head Constable has also deposed of recovery of the contraband from the possession of the accused and taking of sample of the same. As per the witness no civilian witness was called on spot due to their non-availability. No FSL form was filled by the I.O. The proceedings were conducted by I.O on spot in the mobile phone due to darkness. PW-4 Rajesh Singh, SGCT is also witness to the contents of memo ExtP-1/1 pertaining to seizure of heroine, seizure of car of the accused ExtP-1/2 and superdnama of ring used for sealing of the packets ExtP-1/5 and kept on his superdnama which he has produced in the court. In cross-examination, the witness has stated that the seizure memo was prepared by the I.O on the bonnet of the official gypsy while switching on the internal light of the said vehicle and not on the road while sitting there. No civilian was called on spot by the I.O. PW-5 Ravinder Singh, Constable has also deposed about the recovery of contraband from the possession of the accused and has admitted the contents of memos prepared during investigation. No civil witness was called from the nearby h