The prosecution must establish a clear link between seized contraband and samples sent for analysis, including safe custody, to prove guilt beyond reasonable doubt.

JUDGMENT :

1. This appeal arises out of Judgment of the acquittal dated 28.02.2018, recorded by the Court of learned Principal Sessions Judge Srinagar(for short the ‘trial court’) by virtue of which the respondent has been acquitted of the charge for commission of offences punishable under Section 20/28 NDPS Act. The Judgment has been impugned primarily on the ground that the learned trial court has not rightly appreciated the evidence.

2. Mr. Mohsin Qadiri, learned Sr. AAG submits that the Judgment suffers from perversity as the recovery was affected from the bag carried out by the respondent, as such, the option under Section 50 NDPS Act was not required to be given at all to the respondent. He further submits that the learned trial court has further fallen into grave error of law by stating that the independent witnesses were not associated during investigation which casts doubt in prosecution story.

3. Per contra, Ms. Taiba Gulnar, learned counsel for the respondent submits that there is neither any illegality nor perversity in the Judgment of the acquittal, recorded by the learned trial court and until and unless the court comes to the conclusion that there is perversity in the Judgment, no interference is warranted in the Judgment of the acquittal recorded by the learned trial court.

4. Heard and perused the record.

5. Perusal of the record reveals that the allegation against the respondent is in respect of the recovery of 70 grams of Charas carried out by the respondent in a polyethene bag, when he was apprehended at Sheikh Colony, Kathidarwaza. The prosecution has examined PWs Constable-Hilal Ahmad, Constable Ghulam Hassan, Selection Grade Constable Abdul Hamid, Dy.SP Ali Mohammad Shah and Inspector Showkat Ahmad Bukhari as well as Scientific Officer FSL Mr. Shabir Ahmad Yasir, to prove the guilt of the accused.

6. PW-Hilal Ahmad, has stated that on 01.07.2005, he was on an escort duty with SHO, Nowhatta, when the police party found the respondent carrying a bag, who tried to hide the same. The accused was arrested and the small balls of charas were found in the said bag. Dy.SP-Ali Mohammad Shah was called and on weighing the material, it was found to be 70 grams. He took the docket to the Police Station for the registration of the FIR, whereupon an FIR was registered. During cross-examination, he could not disclose the number of balls of charas found in the bag. He further stated that the Charas was weighed by a shopkeeper in presence of SHO and Dy.SP.

7. PW-Constable Ghulam Hassan, has deposed in an identical manner as that of PW-Hilal Ahmad. During cross-examination it is stated that the balls of cannabis were not counted at the place of occurrence and the contraband was weighed by the Police after taking weighing scale from a shopkeeper at Makhdoom Sahib locality.

8. PW-SGCT-Abdul Hamid, stated that he accompanied Head Constable, Ghulam Hussain for naka duty and found the accused trying to ran away. He was nabbed and a bag containing cannabis was recovered from his hand. The Incharge Ghulam Hassan informed SDPO with regard to the recovery of the contraband who came on spot. The contraband was weighed and was found to be 70 grams. During cross-examination, it is stated that the accused was apprehended by Constable-Ghulam Hassan. He further stated that no seizure was prepared in his presence and the weighing scale was brought from the shopkeeper who had not come on spot himself.

9. Dy.SP-Ali Mohammad Shah had stated that after receiving a wireless message from SHO, Nowhatta, that some contraband had been seized at Sheikh Colony, Kathidarwaza, he went on spot and found that a person had been detained by SHO. The seized contraband was not weighed in his presence, as he had to come back urgently due to some problem in the area. He had not attested the seizure memo. During cross-examination, he stated that accused was neither arrested nor searched in his presence.

10.PW-Showkat Ahmad Bukhari stated that on 01.07.2005, during routi