The prosecution must establish a reliable chain of custody for evidence; serious contradictions in evidence lead to acquittal.

JUDGMENT :

Sanjeev Kumar, J.

1. The State is in appeal against the judgment of acquittal dated 19th October, 2011 passed by the learned Additional Sessions Judge, Udhampur [“trial Court”] in File No.32 and 8/Special Challan titled State v. Naresh Kumar, whereby the trial Court has acquitted the respondent for commission of offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”].

2. The impugned judgment of acquittal is assailed by the appellant on multiple grounds. However, before we advert to the grounds of challenge, we deem it appropriate to narrate few material facts germane to the disposal of this appeal.

3. As the prosecution story goes, on 28.10.2004, PSI Bhopinder Singh along with other police personnel, who were on patrolling duty, saw the respondent moving in suspicious circumstances at Salathia Chowk, Udhampur. On seeing the police, respondent tried to run. He was chased and from out of his possession 380 gms of heroin was recovered. PSI Bhopinder Singh took out 110 gms of heroin out of the seized contraband as samples and sealed the same on spot. Rest 270 gms of heroin was separately packed. The sealed 110 gms of heroin was sent for chemical examination and as per the report of the FSL, the samples were found containing 8.5% morphine. Offence under Section 18 NDPS Act was, thus, established against the respondent and accordingly, charge-sheet was presented by the police before the trial Court.

4. Charges were framed by the trial Court under Section 18 NDPS Act against the respondent on 10th August, 2005 and the statement of the respondent was recorded. He pleaded not guilty and claimed to be tried. With a view to proving the charge against the respondent, the prosecution examined PW-1 S.I. Bhopider Singh, PW-2 Ct. Mohd. Farid, PW-3 ASI Narayan Dass, PW-4 Ct. Subhash Singh, PW-5 Ct. Sunil Kumar, PW-6 Head Constable Hukam Chand, PW-7 Madan Lal, PW-8 Rohit Koul (Scientific Officer), PW-9, S.I.. Sharief, and PW-10 Jagdev Singh. The incriminating evidence that had appeared in the prosecution case against the respondent was put to the respondent and his statement under Section 342 Cr.P.C was recorded on 12th May, 2009. The respondent denied the allegations and opted to produceevidence in defence. The accused produced DW-1 Shiv Kumar and DW-2 Suram Chand as his defence witnesses.

5. The trial Court considered the entire evidence that had come on record in the light of the charge-sheet presented by the police and came to the conclusion that the prosecution had failed to connect the respondent with the commission of offence with which he had been charged. The trial court, in terms of the judgment impugned, acquitted the respondent of the charges primarily for the following reasons:-

i) That there are serious contradictions in the evidence of the prosecution regarding recovery and seizure and the manner in which it was effected by the prosecution witness S.I. Bhopinder Singh.

ii) That there is serious doubt about the safe custody of the seized contraband from the date it was seized till it reached FSL for chemical examination.

6. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the reasoning given by the trial Court to support the impugned judgment of acquittal is perfectly legal and in consonance with law.

7. Apart from the contradictions which are writ large in the prosecution evidence, there is serious doubt about the safe custody of the contraband item. Admittedly, the contraband–heroin was seized by PW- Bhopinder Singh along with police party from near Salathia Chowk, Udhampur on 28th October, 2004. As per the statement of PW-7 Hukam Chand, two samples were deposited with him on 29th October, 2004 against which he has made entry in the Malkhana register at S.No.124. There is, however, no evidence on record to demonstrate as to when these samples were taken out from the Malkhana for re-sealing. Though, as per the stateme