State of Jammu and Kashmir vs Mohinder Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 444

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Dhar, J.
(Through Virtual Mode)
State of Jammu and Kashmir – Appellant
Versus
Mohinder Singh and Anr. – Respondent
CRAA 111/2011
Decided on 30-04-2021

Advocates:
Advocate Appeared:
For the Appellant(s): Mr. Aseem Sawhney, AAG
For the Respondent(s):Mr. Rohan Nanda, Advocate

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 15, 50 and 54-Code of Criminal Procedure, 1973-Section 378-Recovery of Poppy Straw-Appeal against acquittal-Alleged recovery was effected at a busy spot near bus stand-There was availability of civilians for their association as witnesses to recovery of contraband from respondents/accused, but in spite of this, they were not associated-Investigating Officer in his statement has not given any reason as to why he did not associate civilians-Investigating Officer has intentionally avoided to associate civilians in process of recovery of alleged contraband from respondents-Non-association of independent witnesses in these circumstances, cannot be wished away lightly-It certainly creates doubt recovery of contraband from possession of respondents-Recovery of contraband from possession of respondents/accused becomes further suspicious from statement of then SDPO in whose presence respondents/accused are alleged to have been subjected to personal search-It cannot be stated that prosecution has succeeded in this case in proving recovery of contraband from possession of respondents-Once, this foundational fact is not established, presumption available to prosecution under Section 54 NDPS Act would not come into play-Prosecution has failed to establish foundational facts relating to recovery of contraband from accused beyond all reasonable doubt and it cannot be stated that trial Court has committed any error in refusing to rely upon evidence of prosecution in this regard. (Paras 10, 11, 12 and 13)
Result-Appeal dismissed.

Judgment :

Sanjay Dhar, J.

1. Instant appeal is directed against the judgment of acquittal dated 30.04.2011 passed by the learned Special Judge (Additional Sessions Judge), Jammu (hereinafter referred to as the ‘trial Court’) in the case titled ‘State vs Mohinder Singh and anr’ arising out of FIR No.101/2003 of Police Station, Gandhi Nagar, Jammu for offence under Section 15 of NDPS Act.

2. Briefly stated, the case of prosecution is that on 03.04.2003, the police of Police Post, Nehru Market, Jammu received a source information that the respondents/accused are trading in poppy straw at Bus Stand, Nehru Market, Jammu and that they are in possession of poppy straw. The report was entered into the concerned register and a docket was sent to the Police Station, Gandhi Nagar, Jammu for registration of a case. Accordingly, the aforesaid FIR came to be registered.

3. The Investigating Officer Harminder Singh along with ASI Chaman Lal and other police officials proceeded to spot and they apprehended the respondents/accused. They were served with a notice in terms of Section 50 of NDPS Act seeking an option from them with regard to their search. The respondents/accused opted to get themselves searched in presence of a Dy.SP, who arrived on spot and both the respondents/accused were subjected to search in his presence. Upon personal search of respondent/accused Mohinder Singh, 500 gms of poppy straw and upon personal search of respondent/accused Raj Singh, 400 gms of poppy straw was recovered. The representative samples of the recovered contraband were sealed and seized. The same were sent to FSL, Jammu for analysis. Upon completion of the investigation, offence under Section 15 NDPS Act was found established against the respondents/accused. Charge-sheet was, accordingly, filed before the learned trial Court.

4. In terms of order dated 02.08.2004 of the learned trial Court, the respondents/accused were charged for offence under Section 15 NDPS Act to which they pleaded not guilty. Accordingly the prosecution was directed to lead evidence in support of the charge. The prosecution examined seven out of eleven listed witnesses. The learned trial Court, after analyzing the prosecution evidence and after hearing the parties, passed the impugned judgment thereby acquitting the respondents/accused of the charges.

5. The judgment of acquittal passed by the trial Court has been assailed by the appellant-State on the grounds that the same is contrary to law and facts; that the learned trial Court has failed to appreciate the prosecution evidence in its proper perspective; that the evidence led by the prosecution is sufficient in the ordinary course to prove the guilt of the respondents/ accused and that the learned trial Court has taken a hyper technical approach while acquitting the respondents/accused.

6. I have head learned counsel for the parties and perused the impugned judgment, the grounds of appeal and the evidence on record.

7. It has been vehemently argued by learned counsel for the appellant that the prosecution has succeeded in proving the charge against the respondents/accused by leading cogent and convincing evidence in the shape of statements of witnesses in whose presence the recovery of contraband from the possession of the respondents/accused has taken place. It has been further contended that once the recovery was proved, the presumption contained in Section 54 of NDPS Act would come into play and it was for the respondents/accused to prove the contrary which they have failed to do. Taking this argument further, it has been contended that the learned trial Court has failed to take into account this aspect of the matter while passing the impugned order of acquittal in favour of the respondents/accused.

8. Per contra, learned counsel for the respondents/accused has vehemently contended that, unless the facts as regards the recovery of contraband from the possession of respondents/accused are proved by the prosecution by leading cog