STATE OF J&K Vs. DEV SINGH AND ORS.

JUDGEMENT

(1.) The State, being aggrieved of the acquittal of respondents (hereinafter referred to as "accused") of offence under Section 8/15 NDPS Act in terms of judgment dated 30.04.2014 passed by Principal Sessions Judge Ramban in case titled State v. Devi Singh and anr., seeks leave to assail the impugned judgment on the ground that the Trial Court has not appreciated the prosecution evidence properly and that the prosecution has adduced sufficient evidence to bring home guilt of the accused. Prosecution case is that on 07.03.2011 a Police Party led by SGCT Mohd. Sharief was on patrolling and traffic checking near Rattan Bas on National Highway. At 10.30 am a truck bearing registration No. 8363/HR37 coming from Srinagar was stopped. Five white colored bags were recovered from the Cabin Tool while two bags were recovered from the petrol tank of the truck. On opening crushed poppy straw was found in the bags. The contraband weighed one quintal thirty six kilograms and seven hundred grams. SGCT Mohd. Sharief forwarded a docket to Police Station for registration of case which came to be registered\under FIR No. 43/2011. Investigation ensued which revealed that the accused had purchased the contraband from Kashmir and were carrying it for illegal sale to Punjab. Charge sheet was accordingly laid for judicial determination before the Trial Court where accused pleaded not guilty to charges framed under Section 8/15 NDPS Act and claimed to be tried. Prosecution led evidence at the trial. The accused denied their involvement when asked to explain the incriminating evidence under Section 342 CrPC. However, the accused refused to enter the defense. On consideration of the evidence adduced by prosecution, the accused came to be acquitted on the ground that there were serious contradictions in prosecution evidence and gross procedural lapses had been committed by the IO rendering the entire exercise of search and seizure doubtful.

(2.) Heard and considered.

(3.) Recovery of contraband in the present case is alleged to be a chance recovery with no prior information available with the searching team in regard to carriage of the contraband in the aforesaid truck. However, it emanates from some members of the Police Party that the SHO had previously told them at the Police Station itself to intercept the aforesaid truck and they had proceeded to the spot on specific instructions from SHO. Testimony of Pw-Sharief SGCT is emphatic in regard to prior information of illegal transportation of contraband in the aforesaid truck being available with SHO. The claim of PW-Mohd. Sharief belies testimony of Inspector Sajjad Ahmed who deposed that he had no prior information in this regard. In view of the deposition of PW-Mohd. Sharief SGCT who has not been declared hostile to prosecution, it doesn't appear to be a case of chance recovery. Once specific inputs were available to SHO who deputed the team with specific instructions to intercept the truck in question, the mandatory requirement of Section 42 enjoining upon the SHO to record the information received in regard to transportation of contraband in the truck in question had to be complied with and the superior officer had to be informed. The statutory safeguard engrafted in Section 42 stands violated which goes to the root of the case. Apart from this procedural lapse the prosecution evidence appears to be suffering from serious contradictions on material particulars of the alleged occurrence. Testimonies of constable Achal Singh and PW-Mohd. Sharief are mutually exclusive and inconsistent in regard to forwarding of docket to Police Station. PW-Shakeel Ahmed-SPO claimed that SHO had telephonically informed DySP who came on spot and prepared Seizure memo of poppy straw. However, no other witness including IO has spoken about presence of DySP on spot. It further appears from testimony of Pw-Mohd. Shareif that all formalities including drawing of samples had been completed by the time copy of FIR was received. It means that the investigation was completed before copy of FIR was received by SHO. Testimony of Pw-Mohd. Sharief SGCT also speaks of presence of Tehsildar Executive Magistrate being secured at the instance of accused who opted for the search of vehicle being conducted in his presence but the recovery of contraband had already been effected before arrival of Tehsildar. In regard to link evidence Pw-Abdul Rahid-HC the then Moharar Malkhana has stated that while seven bags were deposited with him on 07.03.2011, SHO again collected the same from him on 08.03.2011 for producing the same before Tehsildar for resealing. His deposition further reveals that the SHO, on return, handed over seven bags of poppy straw together with seven bags of samples to him. The testimony of Pw-Abdul Rashid-HC reveals that the samples were drawn from the seven packets of poppy straw before the Executive Magistrate and thereafter deposited in Malkhana. However, the Executive Magistrate Rouf-ul-rehman has deposed that fourteen sealed packets were produced before him for resealing on 08.03.2011. It follows that the seven packets of contraband collected from Moharar Malkhana were handled by SHO who bifurcated the same drawing samples from each packet. That is the only plausible explanation for seven packets getting multiplied into fourteen packets. This implies that the seals were tampered before forwarding the samples to FSL on 17.03.2011. It appears that the guidelines issued by Narcotic Control Bureau in regard to conducting of search effecting of recovery and making of seizure of contraband, drawing of samples and sealing of the same together with the recovered substance separately on spot and forwarding of the samples to FSL within 72 hours have been given a complete go bye. The inevitable conclusion is that fair procedure has not been adopted in conducting search, effecting recovery and making seizure of the contraband. This vitiates the entire exercise of search, recovery and seizure. No exception can be taken to the conclusion drawn by learned Sessions Judge that gross procedural lapses in investigation go to the root of the matter justifying throwing of the prosecution case over board. There being no substantial and compelling reasons justifying taking of a different view on evidence adduced at the trial, we are of the considered opinion that the appeal lacks merit. Same is accordingly dismissed.