HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

CRLA (AS) No.5/2021

Reserved on 23.03.2021.

Pronounced on 02.04.2021

State through Police Station Pulwama

…Appellant(s)

Through: Mr. Mir Suhail, AAG

V/s

Ahad Dar and another

…Respondent(s)

Through: None.

Coram:

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGEMENT

1. The present appeal has been filed against the judgment dated

07.08.2018 passed by the Court of learned Principal Sessions Judge

Pulwama (hereinafter referred to as the trial court) in case titled <State

through SHO Police Station Pulwama versus Ahad Dar and

another= by virtue of which respondents have been acquitted of the

charges framed against them for commission of offences under

Section 8/20 and 25 NDPS Act in FIR No.283/2007 of Police Station

Pulwama.

2. The present appeal has been filed by the appellant on the ground that

the judgment impugned is against the law and facts of the case and

prosecution had proved the case beyond any doubt but still the learned

trial court has acquitted the respondents. It is further stated that the

learned trial court had doubted seizure of the charas from the

respondents though the recovery and seizure stood proved by the

witnesses produced during the trial. The learned trial court has

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discarded the entire police evidence and seems to have been

influenced by the minor contradictions in the depositions of the

witnesses and also that the learned trial court has fallen into error of

law by holding that the non-examination of the Investigating Officer

casts doubt on the prosecution case as it is a settled principal of law

that non-examination of IO is not fatal to the prosecution case.

3. The brief facts necessary for the consideration of the present appeal is

that FIR No. 283/2007 under Section 8/20 and 25 NDPS Act was

registered at Police Station Pulwama on 16^th July, 2007 after reliable

information was received that at Main Chowk Pulwama accused

namely Ahad Dar and Mst. Sara residents of Ladhermur Pulwama

were carrying contraband. The investigation was started and during

the course of investigation respondents were apprehended and on

being enquired they disclosed their names as Abdul Ahad Dar and

Mst. Sara and in presence of Executive Magistrate, the search was

effected and on personal search from the possession of respondent

No.1 a polythene envelope carrying charas was recovered and on

personal search of respondent No.2 one more polythene bag was

recovered. The contraband was weighed, samples were also extracted

and thereafter sent to FSL. During the course of investigation

respondent No.2 disclosed that respondent No.1 asked her to carry the

consignment to Pulwama and she was to get Rs.400/- (Rupees Four

Hundred only) and it was due to this reason that the respondent no.2

agreed to carry the bag. The prosecution has examined as many as

seven witnesses and in order to properly appraise the contentions of

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the appellant it is necessary to have a brief resume of depositions

made by them.

4. PW Ali Mohammad Najar, Executive Magistrate stated that on

25/07/2007 he was posted as Naib Tehsildar Pulwama and he was

sitting at his residential house. SHO Police Station Pulwama requested

him on phone at about 9:00 in the morning to come on spot as they

have seized charas. He proceeded to the scene of occurrence near

Shaheed Park Pulwama. On spot he saw one man and a woman

besides SI Gh. Rasool and lady constable. Police told him that the

respondents were carrying charas. He stated that charas was being

carried by the respondents in their hands. On his instructions police

opened the envelope, one envelope that was in the hand of Ahad Dar

Charas was found having corn peels in it and the envelope that the

woman respondent No. 2 was carrying, also contained charas wrapped

in