ASHA SINGH Vs. STATE OF J & K

JUDGEMENT

(1.) The present appeal is arising out of judgment dtd. 11.07.2018 and order dtd. 12.07.2018 passed by the learned 1st Additional Sessions Judge, Jammu (hereinafter to be referred as the trial Court) by virtue of which, the appellants have been convicted for commission of offence under Sec. 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") and have been sentenced to undergo rigorous imprisonment for a period of ten years each with a fine of Rs. One lakh each and in default of payment of fine, the appellants have been further ordered to undergo rigorous imprisonment for a further period of six months each. Grounds:

(2.) The appellants have impugned the judgment dtd. 11.07.2018 and order dtd. 12.07.2018 on the grounds that the trial Court has not appreciated the evidence in its right perspective and further has not taken into consideration the contention of the appellants regarding non-production of material witness, namely, PW-Yasir Rashid, who carried the docket to the concerned Police Station for registration of FIR, particularly when after the closure of prosecution evidence, the said witness was summoned by the trial Court on the motion laid by the prosecution under Sec. 540 of Cr.P.C.; that there is material contradiction with regard to the commencement of the investigation by the investigating officer (IO) as IO in his cross examination, has stated that he reached the spot at about 10:30 p.m. and thereafter commenced investigation whereas all other witnesses have categorically stated that IO came on spot at 8:30 p.m. and took the accused along with seized material with him at about 9:00 p.m. that is altogether different so far as the contents of FIR is concerned; that IO, namely, Mukhtiar Ali in his cross examination had stated that when he reached the place of occurrence, a docket was given to him by ASI-PW-Akbar Hussain which is contrary to the prosecution story; that the learned trial court has not appreciated that both the independent witnesses i.e. PW-3 Mohd. Alam and PW-4 Mohd. Javed have not supported the prosecution case and have categorically stated in their statements before the trial Court that no contraband was recovered from the possession of the appellants in their presence; that as per the provisions of NDPS Act, it was imperative on the part of the investigating Agency to prove the re-sealing of the samples but in the instant case, Naib Tehsildar, namely Saif-ul-Maluk, who allegedly re-sealed the samples was not listed in the list as witness but was examined later on, on the motion of prosecution in terms of Sec. 540 of Cr.P.C., however, the original certificate pertaining to resealing of samples was neither in the court file nor with CD file which means that re-sealing of the samples was not at all proved by the prosecution; that the seal used for sealing the samples was kept on the Supardnama of PWConstable Shahjahan, but the said witness never produced the seal before the Court as also the I.O did not bother to hand over the ring used for sealing to independent witnesses; that there was delay in forwarding the samples to FSL for chemical examination as the material was seized on 27.04.2016 and samples those were taken from the seized material were sent to Naib Tehsildar for re-sealing on 02.05.2016 and further that the samples were received in the laboratory on 03.05.2016; that there is delay of six days in sending the samples to the FSL for which the prosecution has offered no explanation; that the IO did not bother to annex copy of Malkhana Register by virtue of which it can be established that the samples were kept in the safe custody and the Mohrar Head Constable was not cited as a witness in the case which clearly shows that the prosecution miserably failed to prove the safe custody of the samples till they reached the FSL; that two witnesses, who were allowed to be re-examined by the trial Court by allowing application of the prosecution in terms of the Sec. 540 of Cr.P.C. i.e. PW-Shah Jahan and PW-Mukhtiar Ali could not identify the material showed to them in the Court by the Public Prosecutor and this fact has not been considered by the learned trial court and that it is not forthcoming from the charge sheet from where the seals of SDPO appeared on the samples which clearly shows that the samples were tempered by the investigating agency and that the provisions of Sections 52, 55 and 57 of the NDPS Act have not been complied with.

(3.) The facts emanating from the charge sheet are that a docket was sent by ASI-Akbar Hussain through Constable Yasir Rashid for the purpose of registration of FIR on 27.04.2016, pursuant to which, FIR bearing No. 73 of 2016 for commission of offences under Sec. 8/20 of NDPS Act was registered by the Police Station Bahu Fort, Jammu. In the docket, it was stated that on 27.04.2016, ASI-Akbar Hussain along with HC-Shahjahan, ConstableAbdul Qayoom, SGCT-Ghulam Mohd., Constable-Mohd. Irshad and Constable-Yasir Rashid was performing naka duty at Sunjwan Morh and during checking at 8:00 p.m., one truck bearing Registration No. JK02AL5781 going from Narwal towards Kunjwani, loaded with two tractors, was stopped for checking. The driver disclosed his name as Kali Dass S/o Som Nath and the owner of the truck revealed his name as Asha Singh S/o Babu Ram. When the truck was checked, one bag was found beneath the seat of the driver that was having six packets containing charas like material. On receipt of this docket, FIR was registered by the concerned Police Station and investigation of the case was handed over to Sub Inspector, Mukhtiar Ali. IO, namely, Mukhtiar Ali reached on spot and seized the six packets and they were weighed on spot. The weight of contraband was found to be 12 kg 480 grams. From each packet 30-30 grams of charas was taken for the purpose of samples for its examination by the FSL Jammu. Samples were sealed on spot with a ring having the impression "N". The seizure memos of the truck and the contraband were prepared on spot. During the course of investigation, the IO recorded the statements of the witnesses and got the samples re-sealed from the Magistrate and sent to FSL for its examination. The report was received from FSL and after the conclusion of the investigation, the charge Sheet for commission of offences under Sections 8/20 of NDPS was filed on 11.06.2016 against the appellants in the Court of learned Principal Sessions Judge, Jammu and the same was transferred to trial Court. The trial Court framed the charges for commission of offence under Sec. 8/20 of NDPS Act against both the accused. The prosecution examined 12 witnesses and the statement of one witness PW No.7 Javed Ahmed was admitted by the appellants. After conclusion of the prosecution evidence, statements of the appellants were recorded under Sec. 342 of Cr.P.C. and vide judgment and order impugned, the accused were convicted and sentenced to undergo rigorous imprisonment for a period of ten years each along with a fine of Rs. one lakh each and in default of payment of fine, they have been further ordered to undergo rigorous imprisonment of six months each.