The court upheld the trial court's acquittal of the accused due to significant procedural violations and lack of evidence connecting them to the alleged drug possession.

ORDER :

1. This is an acquittal appeal by the then State of Jammu and Kashmir (now UT of Jammu & Kashmir) directed against an order and judgment dated 31.10.2015 passed by the learned Sessions Judge (Principal District Judge), Ramban [“the trial Court’] in file No. 06/NDPS Act in case titled “State v. Sajjad Ahmad Shah & Anr.” whereby the trial Court has acquitted both the accused (respondents herein) of the offences under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, (NDPS), 1985.

2. Briefly stated, the prosecution story is that information was received by Police Station, Ramban on 20.09.2013 through reliable resources that two persons i.e. the respondents herein were camping at Ramban with charas in their possession and were looking for a client to sell the same. On receipt of this information, FIR No. 143/2013 was registered for offences under Section 8/20 NDPS Act in the Police Station and investigation set in motion. The SHO along with some police personnel proceeded to the spot and took both the respondents into custody. The respondents were jointly informed in writing by the Investigating Officer that they were required to be searched and, therefore, can make an option to be searched before Dy. S.P or a gazetted Officer. Both the respondents opted to be searched by Dy. S.P. On search, a carry bag, which was in the hand of respondent- Sajjad in the first instance but was later delivered to respondent No.2 on seeing the police, was recovered. From out of this bag, 24 cobs having concealed therein charas like substances were recovered. All the 24 cobs were weighed and it was found that they were 1kg 150 grams. The recovered contraband was seized. Samples were taken out and sent to FSL for chemical examination. From FSL, it was found that the samples were containing charas. On completion of the investigation, final report was submitted before the trial Court. The charges against the respondents were framed. Both the respondents pleaded not guilty to the charge and opted for trial.

3. With a view to substantiate the final report, the prosecution examined, as many as, nine witnesses. All the witnesses examined were Police Officers except one civilian- PW-Shabir Ahmed and one official from FSL. The matter was considered by the trial Court in the light of evidence on record and it was concluded that the prosecution had miserably failed to connect the respondents with the commission of offences under Section 8/20 NDPS Act as was alleged in the charge-sheet filed by the police. The trial Court, thus, acquitted both the respondents in terms of order and judgment impugned in this appeal.

4. That the trial Court has acquitted the respondents primarily for the following reasons: -

(i) That there are major contradictions in the statements of the prosecution witnesses. The contradiction is in respect of seizure of contraband, weight of contraband, their safe custody in Malkhana etc. etc.

(ii) That despite the fact that at the time of search and seizure, there were number of civilians available on spot yet none except Shabir Ahmed was associated in the process of investigation. The only civilian who was associated also did not fully support the prosecution case.

(iii) That there has been violation of Section 50 of the NDPS Act, in that, the personal search of the respondents was not made in strict compliance with the provisions of Section 50. The trial Court held that joint information in writing given to the accused about their personal search and providing them an option was not permissible in law.

5. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that judgment passed by the trial Court on merits is perfectly in conformity with law and does not call for interference in this acquittal appeal. We, however, do not give over imprimatur to the view of the trial Court that the trial was vitiated for non-compliance with the provisions of Section 50 of NDPS Act. This