Prosecution must establish through chemical examination that the seized material is a narcotic drug or psychotropic substance, and failure to produce crucial witnesses and evidence undermines the case.

JUDGMENT :

(Sanjeev Kumar, J.)

1. State of Jammu and Kashmir (now Union Territory of Jammu and Kashmir) is in appeal against order and judgment of acquittal dated 02.07.2011 recorded by the learned Principal Sessions Judge, Kathua [“the trial court”] in file No. 10/Challan titled ‘State v. Gourav Rabotra.’

2. Before we advert to the grounds of challenge, reference to prosecution story would be appropriate.

3. On 18.04.2007, the police of Police Station, Basholi while being on regular petrol duty, put up a naka and intercepted a motorcycle “Yamaha Black” which was being driven by the respondent. On an enquiry, the respondent disclosed his name as Gourav Rabotra. The respondent was searched and on his search, one black bag containing 2000 capsules of Parvan Spas was recovered from his possession. The capsules were immediately seized and an FIR No. 25/2007 under Section 8/21/22 of the NDPS Act was registered. The investigation was taken up which ultimately culminated into presentation of Final Report against the respondent. The trial court, after hearing the prosecution and the respondent, framed charges under Section 8/21/22 of the NDPS Act. The respondent denied the charges and claimed to be tried.

4. With a view to prove its case against the respondent, the prosecution has examined only four witnesses i.e. PW Ravi Kumar, PW Manjeet Kumar, PW Ashraf Ali and PW Mast Ram. The incriminating material appearing in the statements of prosecution witnesses was put to the respondent and his statement under Section 342 Cr.P.C was recorded. The respondent denied all the allegations and pleaded innocence. He, however, chose not to lead any evidence in defence. Having gone through the material and evidence that had been brought on record by the prosecution, the trial court came to the conclusion that the prosecution had miserably failed to establish the guilt of the accused. As a result, the challan was dismissed and the respondent was acquitted of the charge vide judgment and order dated 02.04.2011 which is assailed before us in this appeal.

5. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment of acquittal passed by the trial court is perfectly legal and is in consonance with law.

6. The prosecution has undoubtedly failed to perform its duty as is enjoined upon it under the Code of Criminal Procedure. Out of the total nine prosecution witnesses cited in the challan, the prosecution has only produced four witnesses for examination. The important witnesses like Rohit Koul, Assistant Scientific Officer, FSL, Jammu, Ashok Singh Sumberia, Investigating Officer, Mushtaq Ahmed Choudhary, SDPO and Constable, Raghunath have been left out.

7. From a plain reading of the order-sheets of the trial court, it further transpires that the trial court, after granting numerous opportunities to the prosecution to produce rest of the witnesses, closed the prosecution evidence. However, on an application moved by the prosecution, one more opportunity was granted to produce the entire evidence but the prosecution failed to do so.

8. Without going much into detail, we are of the considered opinion that no case under Section 8/21/22 of the NDPS Act can be held proved unless it is firmly established before the trial court that the item/material seized from the accused is a narcotic drug or pyschotropic substance and this can only be verified by subjecting the material to chemical examination in an approved Forensic Science Laboratory. In the instant case, the Investigating Officer had picked up two capsules as samples and sent it to FSL, Jammu but none of the witnesses produced by the prosecution tendered the report of the Assistant Scientific Officer, FSL, Jammu in evidence nor was the statement of the Assistant Scientific Officer, FSL, Jammu- Rohit Koul recorded.

9. We are aware that the report of the Assistant Scientific Officer of the FSL if tendered by the prosecution witnesses, is admiss