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2023 Supreme(J&K) 732
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
SANJEEV KUMAR, RAJESH SEKHRI, JJ.
State of J&K - Appellant
Versus
Sham Lal – Respondent
CRAA No. 88 of 2010
Decided on : 26-04-2023
Advocate Appeared:
For the Appellant : R.S. Jamwal; Amit Gupta
Headnote:(A) Narcotic Drugs and Psychotropic Substance Act, 1985 - Sections 20 and 29 - Arms Act, 1959 - Section 3/25 - Acquittal of respondent in drug smuggling case - Prosecution failed to establish custody of accused and the admissibility of disclosure statements made while in custody - Mandatory provisions of law were violated leading to serious lapses in the prosecution case. (Paras 4, 12, 20)
(B) Evidentiary Standards - The court highlighted that the recovery of contraband must comply with the Evidence Act’s provisions, particularly Section 27, which requires proof of custody and the distinct nature of disclosures made. (Paras 11, 12, 17)
(C) Independent Witnesses - All independent witnesses turned hostile, rendering prosecution's evidence inconclusive and thus not supporting claims of recovery. (Paras 14, 20)
Facts of the case:
The appeal was against the acquittal of the respondent in a drug case, where the prosecution claimed the retrieval of drugs based on the accused's disclosures made while in custody. Several procedural errors and lack of corroborative evidence led to the trial court’s decision.
Findings of Court:
The court found that the prosecution failed to prove the necessary legal requirements for custody and admissibility of confession, as well as the integrity of handling evidentiary material.
Issues: The key issues were the legality of the accused's custody and the reliance on confession made during the said custody, alongside the procedural lapses in the prosecution's approach.
Ratio Decidendi: The court reasoned that the failure to prove custody and the violation of evidentiary standards led to an inability to substantiate the prosecution’s claims, thereby justifying acquittal.
Result: Appeal dismissed, and acquittal upheld.
| Table of Content |
|---|
| 1. overview of the criminal case and evidence against the respondent. (Para 1 , 2 , 3) |
| 2. trial court's findings on the prosecution's evidence and the appellant's claims. (Para 4 , 5) |
| 3. legal standards for admissibility of evidence and implications of disclosure in police custody. (Para 10 , 11 , 12 , 13) |
| 4. issues related to the safe custody of contraband and procedural lapses by the prosecution. (Para 14 , 16 , 19 , 20) |
| 5. legal precedent on evidence handling under ndps act. (Para 17 , 18) |
| 6. final judgment on the acquittal of the respondent. (Para 21) |
JUDGEMENT
RAJESH SEKHRI, J.
1. Challenge in this appeal has been thrown to judgment dated 26.04.2010 passed by learned 2nd Additional Sessions Judge, Jammu ('trial court' for short) in File No. 121/S and FIR No. 114 of 2001 of Police Station, R.S. Pura under sections 20/29 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short 'NDPS Act'), read with 3/25 of ARMS ACT , vide which, respondents have been acquitted of charges.
2. The case of the appellant/prosecution in the trial Court, in brief, is that on 01.07.2001, while SDPO (Sub Division) R.S. Pura and S.P. Border, Jammu, during investigation of FIR No. 20 of 2001, were on their way to Chakrawati R.S. Pura, they arrested accused-Yousuf Massi, who made a disclosure that he had concealed one 3.15 pistol, six live cartridges in his house in a box and he had also concealed 09 packets of heroine in the land of respondent-accused which they had brought from Pakistan. The said accused further disclosed that other nine packets of heroine were lying with the respondent/accused-Sham Lal. The disclosure statement of accused Yousuf Massi was reduced into writing and consequent thereupon, a pistol and nine packets of heroine were recovered and aforesaid FIR came to be registered and investigation came into vogue. The heroine seized on the disclosure statement of said Yousuf Massi was found to be carrying the mark 'Samunder 8888/96 Shah Azam Factory' and out of said packets, 50 grams each were segregated and sealed as samples. Respondent was also taken into custody, who made disclosure about the remaining 09 packets of heroine lying in a bag in his house and consequent thereupon, the said 09 packets of heroine were recovered at the instance of the respondent lying underneath a heap of bricks in his house. Said 09 packets of heroine were also bearing the same mark 'Samunder 8888/96 Shah Azam Factory' and out of said packets, samples were taken, seized and sealed on the spot. All the samples were sent to FSL for chemical analysis. As per report of the chemical analyst, said samples were found to contain heroine. Accordingly, on the conclusion of investigation, a final report in terms of Section 173 of Code of Criminal Procedure, 1973 (Cr.P.C. for short) was filed in the trial court for offences under sections 20/29 of NDPS Act and 3/25 of the ARMS ACT . Accused were charged sheeted by the trial court on 10.01.2002 whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the evidence. It is pertinent to mention that accused-Yousuf Massi absconded during trial and proceedings under Section 512 of Cr.P.C. were initiated against him on 20.04.2009.
3. Prosecution has examined as many as 16 witnesses to bring home the guilt of respondent. On conclusion of the prosecution evidence, statement of the respondent under section 342 Cr.P.C. was recorded whereby he denied the incriminating evidence against him by pleading false implication and did not lead any evidence in defence.
4. On appreciation of the prosecution evidence, learned trial court has concluded that prosecution case in the trial court was not only replete with material contradictions and discrepant on material aspects, but mandatory provisions of the NDPS Act have been observed in breech, therefore, learned trial Court vide impugned judgment has acquitted the respondent.
5. The impugned judgment has been assailed by the appellant-State inter
