Union Territory of J&K vs Partap Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 103

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Sanjeev Kumar and Mohan Lal, JJ.
Union Territory of J&K – Petitioner
Versus
Partap Singh – Respondent
Crl LP(D) No.3/2020 and CrlMNo.1521/2021 & 1522/2020
Decided On : 09-03-2022

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Ravinder Gupta, AAG

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985-Section 8/20 read with Section 50-Code of Criminal Procedure, 1973-Section 378-Seizure of Charas-Appeal against acquittal-Obligation of authorized officer to give an option to accused of being searched in presence of a Magistrate or Gazetted Officer, in terms of Section 50 of NDPS Act is mandatory and requires strict compliance-Failure of authorized officer making personal search of accused and recovering contraband to comply with this provision would render recovery of contraband suspect and would vitiate conviction based upon such recovery of contraband from person of accused during search-In present case, compliance of Section 50 of NDPS Act was not required-Contraband was allegedly recovered from bag which was being carried by accused and would not fall within ambit of term "personal search" as contained in Section 50(1) of NDPS Act-However, explanation tendered by applicant to explain delay of 327 days is totally vague and unsatisfactory-Otherwise also, having regard to nature of evidence led by prosecution to prove its case before trial Court, High Court not inclined to grant leave to file acquittal appeal against impugned judgment-Accordingly, application for condonation of delay as also application seeking leave to appeal against impugned judgment of acquittal dismissed. (Paras 10, 13, 15 and 16)
Result-Application dismissed.

JUDGMENT :

1. This is an application by the Union Territory of Jammu & Kashmir seeking condonation of delay of 327 days in filing leave to appeal application to assail the judgment of acquittal dated 6th September, 2019 recorded by the Court of Principal Sessions Judge, Reasi [“the trial Court”] in file No.12/Sessions titled State v. Partap Singh, whereby the trial Court has acquitted the respondent-accused in FIR No.54/2013 of Police Station, Katra for offences under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”].

2. Before we advert to the explanation tendered by the applicant for inordinate delay in filing the leave application, it would be appropriate to allude to the merits of the appeal proposed to be filed by the applicant against the judgment of acquittal.

3. First the brief resume of the prosecution case against the respondent, as was put up before the trial Court.

PW-1 Ranjit Singh, PSI along with PW-2 Constable Ashok Kumar, No.638 and PW-3 Constable Ashok Kumar No.599/RSI were on patrol duty in village Kadmal on 20.03.2013. At about 6.15 pm, they saw the accused person trying to give slip to the police. The accused was apprehended. He was found carrying a polythene bag containing charas like substance in 15 challies. PW-Ranjit Singh seized the contraband item and sent a docket in this respect to the Police Station, Katra for registration of the case. Accordingly, FIR No.54/2013 for offence under Section 8/20 of NDPS Act was registered in Police Station, Katra and the S.H.O. as well as Additional S.P. Katra came on the spot and proceeded with the investigation. The contraband was seized and weight of the contraband was found to be 650 gms, out of which 50 gms was taken out as sample for chemical analysis and the remaining was wrapped in the packet separately under mark A and B. During investigation, statements of the witnesses under Section 161 Cr.P.C. were recorded, site plan was prepared and mark ‘B’ packet was sent to the FSL, Jammu for chemical examination. The recovered and seized substance was found to be charas, upon chemical examination by the FSL and, accordingly, Final Police Report was laid before the competent Court of jurisdiction. The accused was charged for offence under Section 8/20 NDPS Act by the trial Court vide its order dated 01.06.2013. The charge was read over and explained to him to which accused did not plead guilty and claimed to be tried.

4. With a view to sustain the charge against the accused, the prosecution adduced the evidence of PW-1 Ranjit Singh, PW-2, Ashok Kumar No.638, PW-3 Ashok Kumar No.599/RSI, PW-8 Sher Singh, Naib Tehsildar and Abdul Gani Bhat, Assistant Scientific Officer, FSL, Srinagar. The incriminating circumstances appearing in the prosecution evidence were put to the accused, who denied the allegation and chose not to lead any evidence in defence. The trial Court, after appreciating the evidence on record and having regard to the arguments addressed by the prosecution and the defence, came to the conclusion that the evidence led by the prosecution was full of reasonable doubt and discrepancies and, therefore, the accused deserved the benefit of doubt. Consequently, vide judgment impugned the trial Court acquitted the accused of the charge giving him the benefit of doubt. It is this judgment, which is sought to be assailed by the applicant.

5. The appeal, besides being highly belated also lacks merit. PW-1 Ranjit Singh, who along with his associate police officials had apprehended the accused with 15 challies containing charas like substance contained in a polythene bag, prepared the docket and sent it to the concerned Police Station. The S.H.O., Police Station, Katra and the Additional S.P., Katra came on spot and took the required action. It is important to note here that neither the S.H.O, who was Investigating Officer in the case nor Additional S.P., who, too, had rushed to the place of occurrence alongwith I.O. have been examin