The prosecution's failure to adhere to mandatory provisions of the NDPS Act and establish the chain of custody for seized contraband led to the acquittal of the accused.

JUDGMENT :

Rajesh Sekhri, J.

1. Challenge in this appeal has been thrown to the judgment dated 21.08.2014, passed by learned Special Judge, Kathua, in file No. 71/Special, titled "State v. Parshotam Singh and anr.‟ vide which respondents came to be acquitted, in FIR No. 63 of 2010, for offences under Section 7/20/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, for short).

2. Before we advert to the grounds of challenge urged in the memo of appeal, it shall be apt to have a bird's eye-view of the back ground facts.

3. The prosecution case is that on 01.09.2010, a police party of Police Station, Lakhanpur, headed by ASI-Ganesh Raj laid a nakka at Lakhanpur. At around 9:30 am, a scooter bearing Registration No. JK02N-7063 being driven by respondent No. 1, with respondent No. 2 as a pillion rider on its way from Punjab to Jammu was intercepted and on checking the dicke y of the said scooter, 3700 Pyremal Spas capsules, contained in a polythene bag, came to be recovered. According to the prosecution, respondents failed to furnish any satisfactory explanation much less a permission or a license for transportation of the said capsules. The aforesaid FIR came to be registered and during investigation, the investigation agency, besides other legal formalities, extracted a sample of 50 capsules for its chemical examination through FSL. The said sample came to be re-sealed from the Executive Magistrate. The respondents came to be arrested and statements of witnesses under Section 161 Cr.P.C. were recorded. As a result, the investigation concluded in the presentation of final report for the aforesaid offences in terms of Section 173 Cr.P.C. against the respondents, before the trial court. The respondents came to be charged by the trial court for the aforesaid offences whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence. Prosecution has examined all the witnesses but the Investigating officer.

4. On conclusion of the prosecution evidence, respondents were subjected to examination, in terms of section 342 Cr.P.C. whereby they denied the incriminating evidence, emanating from the testimonies of the prosecution witnesses in their depositions by stating that they have been falsely implicated. They did not examine any witness in defence.

5. Learned trial court, having analyzed and marshalled the prosecution evidence is of the view that besides serious discrepancies and infirmities in the prosecution evidence, the investigating agency has failed to adhere to the mandatory provision envisaged in the NDPS Act, therefore, respondents came to be acquitted.

6. The appellant-State has questioned the impugned judgment primarily on the ground that learned trial court has failed to appreciate the evidence, adduced by the prosecution in its right perspective and respondents have been acquitted by the trial court despite sufficient evidence to sustain their conviction.

7. Before a closer look at the grounds urged in the memo of appeal, a brief resume of the prosecution evidence being indispensable is given below.

8. PW-1-Ganesh Raj has stated that he along with police officials were on patrolling duty, in front of Police Station, Lakanpur where they had laid a nakka. At around 9:30 am, a scooter bearing Registration No. JK02N 7063 on its way from Punjab to Jammu was intercepted and on checking dickey of the said scooter, a polythene bag which contained packets of capsules, came to be recovered. Driver and pillion rider of the scooter disclosed their identities as Parshotam Singh and Chaman Lal. According to the witness, he could not read the name of the drugs. The accused along with capsules and scooter were taken to the Police Station and produced before the SHO, who conducted personal search of the accused persons and counted the capsules, which were 3700 in number. On cross examination by the defence, he has stated that dickey of the scooter was locked and was opened by the driver.