The main legal point established in the judgment is the requirement for compliance with procedural safeguards and fair procedure in the investigation and trial of cases under the NDPS Act.

JUDGMENT :

Vinod Chatterji Koul, J.

1. Appellant has filed this Appeal against the judgment of acquittal dated 28th May 2011 passed by Principal Sessions Judge, Srinagar (for short “Trial Court”) in case FIR no.62/2008 registered in police station Shergarhi (Srinagar) for offence punishable under Section 8/20 NDPS Act titled as State v. Rafiq Ahmad Dar and for setting aside the same.

2. Impugned judgment is being challenged by appellant on following grounds:

(a) that judgment impugned is against facts and circumstances of the case;

(b) that prosecution evidence has not been appreciated by the Trial Court in its right perspective as the evidence and material produced by prosecution has proved the guilt of accused beyond any shadow of doubt and there was no other alternative left to the Trial Court but to record conviction of accused, but instead the accused has been acquitted of heinous offence under Section 8/20 NDPS Act, which offence is against the whole society;

(c) that there is no occasion for the Trial Court to hold that prosecution has failed to prove the charges against accused. Prosecution witnesses 1 to 4, 11 and 12, being eyewitnesses, have deposed to have recovered Charas from dickey of motorcycle of respondent-accused. They have corroborated to each other. PW no.5, Abul Gani, I/C FSL PCR, Srinagar, who had obtained fingerprints of accused, identified specimen impression on a leaf bearing his signatures. PW6, Scientific Officer, proved his certificate containing opinion that seized substance is Charas.

(d) that Executive Magistrate proved his letter marked EXTP VII and identified the seal used for sealing the packet. Shopkeeper also supported seizure memo and identified seized substance. PW9, SDPO, also deposed to have recovered the substance like Charas from dickey of accused’s motorcycle at Naaz Crossing when he rushed there on phone call given to him by SHO Shergari who was heading Naka party.

(e) that the then City Munsiff, Srinagar, had also recorded his statement regarding application of I.O. whereupon he recorded statement of Tariq Ahmad under section 164 Cr.P.C. Aijaz Ahmad, SHO, P/S Shergarhi (PW 11) as well as PW12 being eyewitnesses, have proved commission of offence by accused while recording their statements and it would be found by this Court that offence is proved to hilt by statements of SDPO, SHO and SI, Tanveer Ahmad, respectively, who have recovered Charas from possession of accused.

(f) That even on cross-examination, offence committed by accused is proved to hilt but the Trial Court has brushed aside evidence produced by prosecution direct as well as circumstantial, which has effect of causing serious miscarriage of justice.

(g) that the Trial Court appears to have adopted a technical approach in acquitting accused person when the Supreme Court in State of Punjab v. Jaggir Singh, 1974 (3) SCC 277, has held that a criminal trial is not like a fairytale where one is free to give light to one’s in imagination and fantasy and that crime is an event in real life and is the product of interplay of different human emotions and in arriving at conclusion about guilt of evidence by yardstick of probabilities.

(h) that the Trial Court has wrongly observed that there was any lapse on the part of I.O. and discreet investigation was conducted and procedure provided under law was indeed observed in investigation of the case and at no point of time was there any lapse in dealing with case by investigating agency and standing instructions were also followed by I.O. inasmuch as the sample was drawn from seized substance (Charas) on the spot of recovery in presence of witnesses. There was no occasion nor was there any such circumstance appearing in the case for tampering the sample of recovered substance during transit period.

3. I have heard learned counsel for parties and considered the matter. I have gone through the Trial Court record as also judgment impugned.

4. The case of prosecution-appellant is that on 5th May 2008