Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 190

In The High Court of Jammu and Kashmir and Ladakh at Jammu
Rajnesh Oswal and Mohan Lal, JJ.
State of J&K – Appellant
Versus
Shesh Paul Singh and Another – Respondent
CRAA No.137/2014
Decided on : 16-7-2022

Advocates:
Appearing Counsel:
For the Appellant(s): Mr. Dewakar Sharma, Dy. AG
For the Respondent(s):Mr. Anil Khajuria, Advocate

IMPORTANT POINT : While hearing acquittal appeal, Court can re-appreciate evidence, however, it should not interfere with order of acquittal if view taken by trial court is a reasonable view of evidence on record and findings recorded by trial court are not manifestly erroneous, contrary to evidence on record or perverse.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8/20 – Code of Criminal Procedure, 1973 – Section 378 – Seizure of Charas – Appeal against acquittal – Higher degree of satisfaction would be necessary to convict an accused under NDPS Act – It is incumbent upon prosecution to prove that from stage of effecting recovery till samples reach laboratory for their analysis, there was no chance of tampering and fiddling with the same and in case it is found that evidence of safe custody of samples is lacking then benefit has to be given to accused – Merely because on the basis of same evidence, other view is also possible, can hardly be a ground to reverse a well reasoned acquittal recorded by trial court after proper appreciation of evidence – While hearing acquittal appeal, Court can re-appreciate evidence, however, it should not interfere with order of acquittal if view taken by trial court is a reasonable view of evidence on record and findings recorded by trial court are not manifestly erroneous, contrary to evidence on record or perverse – Appeal dismissed. (Paras 13 to 18)

JUDGMENT :

Rajnesh Oswal, J.—The present appeal arises out of the judgment dated 11.12.2013 passed by the court of learned Special Judge, Kathua (hereinafter to be referred as the trial court) in case titled “State Vs. Shesh Paul Singh and others” arising out of FIR No. 54/2011, registered with Police Station Lakhanpur for commission of offences under Section 8/20 NDPS Act, by virtue of which the respondents have been acquitted.

2. The judgment has been impugned on the ground that learned Trial Court has wrongly appreciated the law and evidence on record and there was enough evidence on record for conviction of the respondents.

3. Mr. Dewakar Sharma, learned Dy. AG argued that the learned Trial Court has wrongly appreciated the evidence and there was abundant evidence on record that warranted the conviction of the respondents.

4. Mr. Anil Khajuria, learned counsel for the respondents vehemently argued that the most important witness PW- Sat Paul, who was travelling in the said vehicle has turned hostile and has not supported the prosecution case which clearly shows that the false and frivolous story was cooked by the prosecution. He further argued that the link evidence is absolutely missing in this case.

5. Heard and perused the record.

6. Before this Court takes note of the prosecution story, it needs to be noted that the charge-sheet was filed against 6 accused, out of which accused No. 3 i.e. Naimud Din was discharged, whereas the accused Nos. 4-Kafil Ahmed, 5-Nilesh Kumar and 6-Younis Ali were proceeded under Section 512 Cr. P. C. and only the accused Nos. 1 and 2 i.e. the respondents herein faced the trial.

7. The prosecution story as it emerges out from the charge-sheet is that on 19.07.2011 a Scorpio bearing registration No. 4283-DL3CAJ was going from Jammu to Pathankot. The same was stopped and checked by the Police at Naka Check Point, Lakhanpur, during the course of routine checking. Respondent No. 1 was found to be the driver of the vehicle and another person who has been cited as prosecution witness No. 2 i.e. Sat Paul Singh was also found in the said vehicle, who stated that he had taken a lift in the said vehicle from Dayala Chack to Pathankot. During the search of the vehicle, 12 packets of Charas weighing 5 kilograms were recovered from the said vehicle and pursuant to the docket sent by ASI-Roldhu Ram, FIR bearing No. 54/2011 was registered at Police Station Lakhanpur for commission of offences under Section 8/20 NDPS Act. The Investigating Officer-SHO, Police Station, Lakhanpur proceeded on spot and started the investigation. During the course of investigation, 12 Packets were seized and out of those 12 packets, 12 samples of 50 grams each were also extracted for the purpose of chemical analysis by the Forensic Science Laboratory, Jammu. During the course of investigation, the respondent No. 1 disclosed about 16 kilograms of Charas more lying in the vehicle and pursuant to the disclosure statement of the respondent No. 1, 25 more packets were recovered from the vehicle. Thereafter samples of 50 grams each were extracted for the purpose of chemical analysis. Further, it transpired during the investigation that the vehicle was owned by the Accused No. 3 i.e. Naimud Din, who was subsequently discharged by the trial Court and the seized contraband procured by the respondent No. 1 from respondent No. 2 and was to be delivered to accused No. 4 i.e. Kafil Ahmed. It was also revealed that the respondent No. 1 was in regular contact with Accused No. 5 i.e. Nilesh Kumar and Accused No. 6 i.e. Younis Ali was also involved in the business of trafficking of the Narcotic Drugs. The call details also revealed a nexus between the accused persons for procurement, transportation and delivery of the narcotic drugs.

8. The Investigating Officer produced the charge-sheet against the 6 accused out of which accused Nos. 4 to 6 were proceeded for commission of offence under Section 512 Cr.P.C. The charge-sheet was filed for commission of o