Advocates:
['H A SIDDIQUI SR AAG', '', 'SHIVANI JALALI', 'S M WAJAHAT', '', 'PARVINDER SINGH']

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

(Through Video Conferencing from Srinagar)

…

SLA no.83/2014

CRAA no.75/2014

State through SHO P/S Gandoh

……. Appellant(s)

Through: Mr Sunil Malhotra, Advocate

Versus

Shabir Ahmed and another

………Respondent(s)

Through: Mr S.M.Wajahat, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

28.06.2021

SLA no.83/2014

1. Application, taking into consideration averments made therein, is

allowed and leave to file Appeal is granted. SLA disposed of

2. Appeal is taken on board.

CRAA no.75/2014

3. This Appeal is directed against judgment dated 4^th December 2013,

delivered by learned Sessions Judge, Bhaderwah (for short “Sessions

Judge” in Challan File no.36/Spl.Challan, titled State v. Shabir Ahmed

and another, acquitting respondents-accused of charges under Sections

8/20 NDPS Act.

4. It is the case of appellant that on 19^th January 2008, SHO P/S Gandoh

along with police personnel had laid a Naka in Butt Market, Gandoh,

where accused were frisked and from possession of accused Shabir

Ahmed a polythene bag containing 24 balls of charas of different size

weighing 100 grams approximately were recovered whereas from

possession of accused Mohammad Yaqoob, charas weighing 50 grams

in the shape of balls lying in polythene bag was recovered. FIR

no.7/2007 was, accordingly, registered. It is contended that during

S.no. 209

After Notice

Cause List

2

SLA no.83/2014

CRAA no.75/2014

investigation, SHO seized charas and took out samples of 05 grams

each from both the recoveries and prepared parcels, which were sealed

and after getting them resealed through Magistrate, sent them to FSL,

Jammu, for chemical analysis. The charge sheet was presented before

learned Sessions Judge. On 7^th June 2007 charge under Section 8/20,

NDPS Act, was framed against accused-respondents, to which they

pleaded not guilty.

5. The grounds of challenge in the Appeal on hand are that impugned

judgment is against law and facts of the case; that there is sufficient

material on record to convict respondents but learned Sessions Judge

has not appreciated law and facts of the case; that prosecution had

established the case against respondents by adducing documentary as

well as oral evidence which in ordinary course of nature is sufficient to

guilt respondents; that respondents willfully and intentionally

committed crime for which they deserve to be punished; that learned

Sessions Judge failed to appreciate prosecution evidence in its true and

correct perspective and important pieces of evidence have been ignored

and that impugned judgement is based on surmises and conjectures; that

learned Sessions Judge has taken hyper technical approach and the

direct and circumstantial evidence have sufficiently proved guilt of

respondents.

6. It may be mentioned here that the prosecution, before learned Sessions

Judge, in support of its case produced eight witnesses, namely, Atta

Mohammad, Hoshiar Singh, Mohammad Ayub, Nazoor Ahmed, Majid

Ayaz, Naresh Kumar, Farooq Ahmed and Pawan Abrol. Prosecution

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SLA no.83/2014

CRAA no.75/2014

witness, Atta Mohammad, in his statement deposed that on 19^th January

2007, he along with constables Hoshiar Singh and Ismail, accompanied

SHO to village Gwari, where accused were searched on the way and

from their possession one polythene bag, each containing charas was

recovered. During cross-examination, he stated that seizure memos

were prepared in police station and the place where accused were

searched is a busy place, open to human traffic and that no civilian was

called on spot at the time of search. Prosecution witness, Hoshiar Singh,

also stated during cross examination that SHO did not give option of

being searched in presence of somebody to the accused and recovery

was made at Butt Market, which is a busy place and no civilian was

called on spot at the time of search and that sei