Proper seizure, safe custody, and corroboration of police witnesses' statements by independent witnesses are essential in NDPS cases to prove the possession of contraband beyond reasonable doubt.

JUDGMENT :

1. The erstwhile State of Jammu and Kashmir (Now UT of Jammu and Kashmir) is aggrieved by the judgment of acquittal dated 26.12.2013 recorded by the Principal Sessions Judge, Jammu [“the trial Court”] whereby the respondents have been acquitted of the charges under Sections 8/20/60 of Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”] and has prayed for leave to appeal.

2. With a view to find out as to whether there is any merit in the appeal proposed to be filed against the judgment of acquittal, it is necessary to scan through the judgment of acquittal and examine the reasoning given by the trial Court in support of its judgment.

3. The prosecution story as was put up before the trial Court is that on 28.10.2011, a policy party of Police Station, Nagrota was on patrol duty at Bantalab, Nagrota. During the course of checking of vehicles at about 5:00 p.m. they stopped a vehicle Xylo bearing Registration No. JK-03C-4188 which was coming from Srinagar. Two passengers along with a driver were travelling in the said vehicle. The driver disclosed his name as Mohd. Amin, whereas the two passengers sitting in the vehicles disclosed their names as Ashok Kumar and Deepak Kumar. The vehicle was searched and on search, charas like substance wrapped in a plastic bag was recovered. None of them could account for the possession and, accordingly, a docket was sent to the Police Station through constable Murad Ali, whereupon FIR No. 257/2011 for the commission of offences under Sections 8/20/60 NDPS Act was registered against the respondents and the investigation was set in motion. During the course of investigation, the police seized the vehicle. The charas recovered was weighed and it was found that Ashok Kumar and Deepak Kumar were carrying 4 kgs. and 2 kgs. of charas respectively, whereas the driver Mohd. Amin was carrying charas weighing 4 kgs. and 500 gms. which they had concealed in the Dickey of the vehicle. The sample of 100 gms each was taken and sent for chemical examination. Upon receipt of report of the chemical examiner that the seized item was charas, the investigation was completed and the final report submitted in the competent Court of jurisdiction.

4. The charges for the commission of offences under Sections 8/20/60 NDPS Act were framed by the trial Court vide its order dated 20.01.2012. All the respondents pleaded not guilty to the charges and claimed to be tried. To sustain the charges against the respondents, the prosecution examined PW-1 Manzoor Hussain Malik, PW-2 Murad Ali, PW-3 Madan Lal, PW-4 Abdul Rashid, PW-5 Joginder Sharma, PW-6 Surjeet Kumar, PW-7 Pawan Kumar, PW-8 Janak Raj, PW-9 Shakeel Ahmed and PW-10 Pervez Sajad. The respondents, however, chose not to lead any evidence in defence.

5. Needless to point out that with a view to bring home the charge under NDPS Act, more particularly under the Sections with which the respondents had been charge-sheeted, the recovery of contraband from them is a sine quo non. The next important step is to seal the contraband in a manner that its safety is not compromised in any manner. It is for the Investigating Officer to further ensure that the seized contraband which is properly sealed reaches safely before the FSL for chemical examination and that there is no room or scope for any opportunity to anybody to tamper with the seized contraband. The examination of seized material by the FSL follows steps like proper seizure of the contraband and sealing, picking up of the samples of required quantity from the seized item, re-sealing them in presence of Executive Magistrate and then sending them to the FSL without any further waste of time. However, where the distance between the place of occurrence/Police Station from the FSL is too long that it is necessary to keep the samples taken from the seized contraband in safe custody, in such situation, the Investigating Officer must deposit the seized contraband as well as samples after entering them in the Malkh