STATE OF J&K Vs. RAJINDER KUMAR

JUDGEMENT

(1.) Special Leave to file appeal is sought by the State against the judgment of acquittal recorded by Pr. Sessions Judge, Jammu on 30.09.2013 by virtue whereof respondent-Rajinder Kumar alias Latt s/o. Amar Nath r/o. Amar Colony Talab Tillo, Jammu (hereinafter referred to as "accused") has been acquitted of charge under Sections 8/21/22 NDPS Act, in case registered under FIR No. 06/2010, Police Station Pir Mitha, Jammu. Allegedly, on 08.02.2010 a Police Party headed by Incharge Police Station Pir Mitha, while on patrol duty at Pir Mitha Chowk, intercepted a Scooter bearing registration No. JK 02 S/664. It is alleged that 18 packets of Pyremol spasm capsules containing 100 capsules each were recovered from personal search of the accused. Contraband was seized. Case came to be registered on the basis of a docket forwarded by the Incharge Police Station Pir Mitha. Samples of the seized capsules taken from each packet were sent to FSL for chemical examination during investigation. The investigation concluded in filing of charge sheet against the accused who was put on trial after he pleaded not guilty to the aforesaid charges. Prosecution has examined five witnesses to bring home guilt of the accused.

(2.) According to the FSL Expert Rohit Koul, representative samples of the recovered contraband were found to be containing Dextropropoxyphene Hydrochloride, Dicyclomine hydrochloride and paracetamol. Admittedly, Dextropropoxyphene Hydrochloride is a narcotic analgesic and therefore, the seized contraband falls within the purview of Narcotic drugs as defined in NDPS Act. However, testimonies of other witnesses have been found faltering so far as date of alleged search, recovery and seizure of contraband from accused is concerned. The three witnesses examined at the trial have given three different dates viz. 6.02.2010, 08.02.2010 and 10.02.2010. All of them claimed to have witnessed the recovery of contraband from the accused. It appears that there is no love lost amongst the trio on this material aspect of search, recovery and seizure of the contraband from the accused.

(3.) In the face of evidence recorded by the prosecution and in absence of an explanation from the Incharge Officer at whose instance case was registered, it is difficult to attach much significance and to rely upon those witnesses who gave totally different version about the occurrence. Superadded to it is a fact that the only independent witness Sonu Kumar has turned hostile at the trial. This material defect noticed hereinabove coupled with other circumstances brought out in the impugned judgment like absence of link evidence are material factors which are sufficient to throw out the prosecution case.