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J&K High Court: Prosecution Cannot Rely on Magistrate's Presence While Disregarding His Testimony
The has set aside the conviction and sentence of two individuals under the , ruling that the prosecution cannot selectively invoke the presence of an Executive Magistrate to validate a search while simultaneously ignoring his testimony on the .
Justice Sanjay Parihar, presiding over the appeal, acquitted Mohammad Shafi Lone and Bilal Ahmad Dar , who had been sentenced to 10 years' rigorous imprisonment and fined ₹1 lakh each by the , for possession of heroin.
A Critical Contradiction
According to the prosecution, on , the intercepted a vehicle at Drugmulla. The police claimed that nothing incriminating was found in the vehicle, but a of the two appellants—conducted after offering them the option under —yielded 435 grams and 372 grams of heroin respectively. The search was carried out in the presence of an Executive Magistrate 1st Class.
However, the defence pointed to a stark contradiction: the Executive Magistrate, examined as PW-5, testified that the two polythene pouches containing the contraband were recovered from the vehicle , not from the persons of the appellants. This testimony directly undermined the prosecution's foundational claim that a had occurred, and with it, the very basis for invoking Section 50.
The Flawed Reliance on Section 50
The court examined the evidence regarding compliance with , which mandates that a person about to be searched must be informed of their right to be searched before a Gazetted Officer or Magistrate. The prosecution relied on , but these were not duly exhibited as substantive evidence and did not bear the signatures of the appellants. PW-13, Inspector Nisar Ahmad, admitted that no civilian witness was associated when the option was allegedly offered and that the appellants' signatures were not obtained on the . Furthermore, one police witness (Constable Sharief-u-Din) categorically stated that no such option was given.
Justice Sanjay Parihar observed:
“The mere physical presence of an Executive Magistrate at the spot cannot, by itself, substitute proof that the appellants were made aware of the statutory right available to them and that the alleged option was thereafter consciously exercised.”
The court further noted that the prosecution could not rely on the magistrate's presence for authenticity while disregarding his substantive testimony on the recovery. It remarked:
“Once the prosecution relies upon the presence of the Executive Magistrate to lend authenticity to the proceedings, his substantive testimony concerning the very cannot be ignored merely because it does not support the prosecution version on that material aspect.”
Presumption Cannot Substitute Proof
The trial court had invoked the under , which shifts the regarding possession onto the accused. The High Court held that this presumption could not be used to fill gaps in the prosecution's case. Where the very manner and are rendered doubtful by the prosecution's own evidence, the of possession is not established, and the presumption cannot operate.
The court clarified that a criminal court cannot choose between two from the prosecution evidence and sustain a conviction simply because one version supports the charge. Where arises from the prosecution's own evidence on a foundational circumstance, the benefit must go to the accused.
Judgment and Acquittal
On a cumulative assessment of the evidence, the court concluded that the prosecution had failed to prove the charge . The appeal was allowed, the conviction and sentence were set aside, and both appellants were acquitted. Bilal Ahmad Dar, who remained in custody, was ordered to be released forthwith unless required in any other case. Mohammad Shafi Lone, who had been granted bail during the appeal, was discharged from his bail bonds.
The judgment reinforces the importance of with under the NDPS Act and underscores that even in serious narcotic offences, the prosecution must present a consistent and reliable account of the recovery.
