Judgment

Rajnesh Oswal, J.-The present appeal has been filed against the judgment dated 07.08.2018 passed by the Court of learned Principal Sessions Judge Pulwama (hereinafter referred to as the trial court) in case titled “State through SHO Police Station Pulwama versus Ahad Dar and another” by virtue of which respondents have been acquitted of the charges framed against them for commission of offences under Sections 8/20 and 25 NDPS Act in FIR No.283/2007 of Police Station Pulwama.

2. The present appeal has been filed by the appellant on the ground that the judgment impugned is against the law and facts of the case and prosecution had proved the case beyond any doubt but still the learned trial court has acquitted the respondents. It is further stated that the learned trial court had doubted seizure of the charas from the respondents though the recovery and seizure stood proved by the witnesses produced during the trial. The learned trial court has discarded the entire police evidence and seems to have been influenced by the minor contradictions in the depositions of the witnesses and also that the learned trial court has fallen into error of law by holding that the non-examination of the Investigating Officer casts doubt on the prosecution case as it is a settled principal of law that non-examination of IO is not fatal to the prosecution case.

3. The brief facts necessary for the consideration of the present appeal is that FIR No. 283/2007 under Section 8/20 and 25 NDPS Act was registered at Police Station Pulwama on 16th July, 2007 after reliable information was received that at Main Chowk Pulwama accused namely Ahad Dar and Mst. Sara residents of Ladhermur Pulwama were carrying contraband. The investigation was started and during the course of investigation respondents were apprehended and on being enquired they disclosed their names as Abdul Ahad Dar and Mst. Sara and in presence of Executive Magistrate, the search was effected and on personal search from the possession of respondent No.1 a polythene envelope carrying charas was recovered and on personal search of respondent No.2 one more polythene bag was recovered. The contraband was weighed, samples were also extracted and thereafter sent to FSL. During the course of investigation respondent No.2 disclosed that respondent No.1 asked her to carry the consignment to Pulwama and she was to get Rs.400/- (Rupees Four Hundred only) and it was due to this reason that the respondent no.2 agreed to carry the bag. The prosecution has examined as many as seven witnesses and in order to properly appraise the contentions of the appellant it is necessary to have a brief resume of depositions made by them.

4. PW Ali Mohammad Najar, Executive Magistrate stated that on 25/07/2007 he was posted as Naib Tehsildar Pulwama and he was sitting at his residential house. SHO Police Station Pulwama requested him on phone at about 9:00 in the morning to come on spot as they have seized charas. He proceeded to the scene of occurrence near Shaheed Park Pulwama. On spot he saw one man and a woman besides SI Gh. Rasool and lady constable. Police told him that the respondents were carrying charas. He stated that charas was being carried by the respondents in their hands. On his instructions police opened the envelope, one envelope that was in the hand of Ahad Dar Charas was found having corn peels in it and the envelope that the woman respondent No. 2 was carrying, also contained charas wrapped in corn peels. Police had already brought the weighing scale and weighed the contraband in his presence. Police prepared the memos and the memos bear his signatures. The Contents of which are true and correct. On spot no further proceedings were conducted in his presence. The property was sealed and thereafter he went to his office. On the same date police produced consignment. Samples were taken and sealed in the office of the witness. He wrote a letter to FSL for opinion. Remnants of the sample were again r