HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Reserved on : 23.03.2021

Pronounced on : 01.04.2021

CRAA No. 37/2017

Intelligence Officer, N.C.B. Jammu

.....Appellant(s)

Through :- Mr. Vishal Sharma, ASGI

V/s

Vijay Kumar

.....Respondent(s)

Through :-

Mr. Kapil Sharma, Advocate vice

Mr. H.S. Salathia, Advocate

CORAM :

HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

Tashi Rabstan-J

1.

The instant criminal acquittal appeal arises out of the impugned

judgment dated 30.12.2015 passed by the learned 1^st Additional

Sessions Court, Jammu (Special Court under NDPS Act) in Complaint

No. 68/2007, whereby the learned trial Court has acquitted the

accused/respondent herein of the charges framed under Sections

8/20/61 of NDPS Act, 1985.

2.

Before we examine the propriety of impugned judgment it will be

necessary for us to refer to the facts giving rise to the present acquittal

appeal filed by the appellant-Intelligence Officer, NCB, Jammu.

2(a)

On the basis of secret information received by complainant-

Intelligence Officer NCB, Jammu from reliable source that one

person, namely, Vijay Kumar S/o Bansi Lal R/o Village Phinder, R.S.

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Pura will supply the contraband-charas to the smugglers of Punjab on

04.06.2007 at Asia Hotel Chowk, Jammu at about 09:00 am to 10:00

am. The matter was subsequently brought to the notice of Balwinder

Kumar, Superintendent NCB and acting on the said information a

team was constituted and a naka was laid at Asia Hotel Chowk,

Jammu. Prior to laying of naka, complainant Sanjeev Chandel called

two independent witnesses to witness the search operation. At about

10:00 am, a person resembling the identity of the person regarding

whom the information was received got down from the bus at Asia

Hotel Chowk who was subsequently cordoned by the NCB staff.

Upon being enquired about his identity, the person disclosed himself

as Vijay Kumar S/o Bansi Lal R/o Village Phinder, R.S. Pura. The

I.O. Sanjeev Chandel told Vijay Kumar that he is having information

regarding the possession of charas by him and therefore he had to take

his search. He was told about the provisions of Section 50 of the

NDPS Act that he had a right to get himself searched in the presence

of any nearest Magistrate or any gazetted officer. He further informed

that

one

Balwinder

Kumar

Superintendent,

NCB

who

is

accompanying the raiding party is also a Gazetted officer. One written

notice to that effect was given to him. On this notice,

accused/respondent gave his consent in writing in Hindi and stated

that he is ready to get himself searched in the presence of Balwinder

Kumar, Superintendent, NCB.. Thereafter, the search of the accused

was conducted by I.O Sanjeev Chandel in presence of Balwinder

Kumar, Superintendent NCB. On opening the carry bag held by Vijay

Kumar a transparent polythene bag tied with tape was recovered and

on opening the same a greenish brown coloured material tied in maize

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cover was found which was tested with Drug-Testing Kit and the

material was found to be positive for charas.

2(b)

The material, after being separated from maize cover was weighed

which came to be 2 kg, was seized and a recovery-cum-seizure memo

was prepared on the spot, but as there was heavy rush on the spot, the

NCB team along with the accused, independent witnesses and

recovered contraband-charas, returned to NCB Office where necessary

procedure of drawing samples and sealing was followed.

2(c)

After recording the statement of the accused under Section 67 of the

NDPS Act, his personal search was made and he was arrested. Arre