Serial No. 65 Final Hearing List HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRAA No. 09/2016 Date of Judgment: 30.11.2017 Sayyed Mohd Sadiq and ors vs. State of J&K Coram:

Hon’ble Mr Justice Badar Durrez Ahmed, Chief Justice Hon’ble Mr Justice Sanjeev Kumar, Judge.

Appearance:

For the Appellant (s) : Mr P. N. Goja, Advocate.

For the Respondent(s) : Mr. Ravinder Gupta, AAG.

i) Whether approved for reporting in Yes Law journals etc.:

ii) Whether approved for publication in press: Yes/No Badar Durrez Ahmed, CJ (Oral)

1. The present appeal is directed against the judgment dated 28.01.2016 delivered by the Additional Sessions Judge (Special Judge), Udhampur, whereby the appellants have been convicted for offences under Sections 8 (c) which is punishable under Section 20 (b) (ii) ( C) of the of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). The appeal is also directed against the order dated 28.01.2016 whereby the appellants have been sentenced to undergo rigorous imprisonment of 12 years each and to pay a fine of Rs. 1.5 Lacs each. In case of default in payment of fine, the appellants were, each, required to undergo further rigorous imprisonment for one year. The period of incarceration already undergone during trial was directed to be set off.

2. The impugned judgment and the order on sentence arose out of FIR No. 240/2011 registered at Police Station, Udhampur on 01.11.2011. The prosecution case was that on 01.11.2011 certain police officers were on patrolling duty and they were checking and frisking vehicles at Jekhani Nallah. At about 11.10 p.m. they intercepted a vehicle, which was a red Qualis, which was approaching from the direction of Srinagar and going towards Jammu. When the said vehicle was signaled to stop, the driver thereof drove it in another direction and tried to flee. The said vehicle was chased and was ultimately intercepted near Sansar Palace. Two persons, namely, accused Sadiq and Haroon Sheikh were sitting in the vehicle and the third, namely, Raaza had fled away. The vehicle had the registration No. MH 04-BY-8939. The same was searched and upon conduct of such search, 7 packets were recovered. On smelling the same, it was found to be charas by the said police team. Thereupon, FIR No. 240 /2011 was registered and investigation was taken over by Sub Inspector Padam Dev Singh. The 7 packets were opened and on such opening 95 balls were found. The total weight of these 95 balls was found to be 16 kilograms. A small portion was taken from each of the 95 balls by way of sample and two packets marked as „A‟ & „B‟ of 100 gms each were prepared by way of samples. Another packet marked „C‟ was of the remaining 15.8 kgs of the seized contraband. A fourth packet marked „D‟ was prepared which contained the packing material.

3. From the above it is clear that, as per the prosecution, 16 kgs of alleged contraband was recovered which smelt like charas. Small portions from each of the 95 balls were taken to prepare two sample packets marked „A‟ & „B‟ of 100 grams each. The remaining 15.8 kgs of the seized material was also sealed in a separate packet marked „C‟. One of the sample packets („A‟) was sent to the Forensic Science Laboratory for forensic examination.

4. It has come in evidence through the Scientific Officer, PW Pawan Abrol from Forensic Science Laboratory, Jammu, that on opening the packet marked „A‟ it was found to contain numerous small flat pieces and powdered greenish black coloured material which were collectively given the exhibit No. P- 1840/11 by him. Importantly, the said PW- Pawan Abrol stated that the weight of the entire exhibit, that is, the contents of the packet marked „A‟ was only 60 gms. It may be noted that according to the prosecution, the sample was of 100 gms whereas according to the Scientific Officer, PW Pawan Abrol, what he received was only 60 gms. The contents of the said exhibit were subjected to various chemical tests, microscopical and chromat