STATE OF J&K Vs. MAHINDER PAL

JUDGEMENT

(1.) This application for leave to appeal against the order of acquittal is directed against the judgment dated 28.02.2015 delivered by the Principal Sessions Judge, Jammu in File No.38/Sp.Challan. The said case arose from FIR No. 05/2010, which was registered under Sections 8/20/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'said Act').

(2.) The case of the prosecution is that the respondent was driving a motor cycle on 07.01.2010 when he was stopped at a Naka point at Canal Road. On personal search by the Police, a bag containing 304 Pyewon spas, 100 parvon spas and 96 spasm proxyvon capsules was allegedly recovered from him. Consequently, the said FIR was registered. On completion of the investigation, the challan was presented in the Court under the said offences.

(3.) The trial Court has acquitted the respondent because of several deficiencies in the investigation and the prosecution of the case. First of all, the allegedly seized contraband was not produced before the Court. There was also no explanation as to whether the seized contraband was disposed of and why it was not produced. In fact, none of the witnesses have stated anything on this aspect of the matter. Further more, apart from the police witnesses, there is no independent witness pertaining to the seizure and recovery of the alleged contraband. Moreover, there is no evidence on record to indicate that the seized contraband and the samples taken were deposited in the Malkhana. The Malkhana register was not produced before the Court. The In-charge of the Police Station or the Moharir, Malkhana were also not produced by the prosecution. Therefore, there is absolutely no evidence on record to indicate as to what happened to the seized contraband and whether it was at all deposited in the Malkhana or not. Even the samples, which were sent to the FSL, do not have a continuous trail from the date of seizure and sampling, to the date of testing. There is, therefore, every likelihood that the samples could have been tampered. The exact quantity of the contraband is also unknown because the same is not available.