MUNISH KUMAR AND ANR. Vs. STATE OF J&K

JUDGEMENT

(1.) This appeal is directed against judgment dated 23.05.2017 passed by 1 st Additional Sessions Judge, Jammu, (Special Court under NDPS Act ) in case FIR No.01/2015 of Police Station GRP Jammu under Sections 8 / 21 / 22 NDPS Act, whereby both appellants (for short 'accused') namely Munish Kumar and Sunil Kumar have been convicted and directed to undergo rigorous imprisonment for a period of ten years and fine of Rs.2 lacs each, for each of the offences under Section 20(b)(ii)(C) and 21(b)(ii)(C) of NDPS Act by the trial Court.

(2.) In the memo of appeal, it is stated that on the basis of the docket sent by Inspector Neeraj Kumar Choudhary SHO GRP Police Station Jammu from Railway Station Complex that Munish Kumar and Sunil Kumar, both residents of New Delhi on 08.01.2015 had been found carrying a bag with a consignment of psychotropic injections- 2000 of Diazepam , 400 of Bupernorphene ,1480 of Exgesic, total 3880 of 2ml each, at Railway Station Jammu, near a passenger shed and that both of them could not produce any voucher or authority for the possession of these psychotropic injections, which they had transported to Jammu for drugs trafficking, a case was registered at GRP Police Station Jammu vide FIR No. 01/2015 for the commission of offences punishable under sections 8 / 21 / 22 NDPS Act. After investigation of the case, instant charge sheet was laid against Munish Kumar S/o Jagdish Prasad R/o H.No.1716 Harish Vihar, New Delhi and Sunil Kumar S/o Mohinder Kumar R/o H.No.1334 Tulsi Niketan Harish Vihar, New Delhi, for the commission of offences punishable under sections 8 / 21 / 22 NDPS Act. Both the accused were charge sheeted by the trial court vide order dated 14.09.2015 for the commission of aforementioned offences, who denied the charge and the prosecution was directed to lead evidence. Prosecution, in order to prove its case to bring home the charge against the accused, examined PW 1 HC Sat Pal Sharma, PW 2 HC Kamal Mehra, PW 3 HC Dilip Singh, PW 4 Ct Lal Din, PW 5 SGCt Satish Kumar, PW 6 SGCt Rakesh Kumar, PW 8 SPO Sunil Kumar, PW 9 Ct. Akhter Hussain, PW 10 Pawan Kumar Abrol and PW 15 Kamal Preet Singh, out of 15 cited witnesses.

(3.) Learned counsel for the appellants has assailed the impugned judgment stating that the trial Court has not appreciated the evidence produced by the prosecution in its right perspective and as such, fallen into grave error of law by holding the appellants guilty of committing aforementioned offence. It is stated that as per the prosecution version, when the appellants were apprehended by the Police at Railway Station, Jammu, near Passengers Shed, the SHO Neeraj Kumar Choudhary came on spot, who conducted the search of the Bag of the appellants and after recovery of injections, he seized the same and in the said seizure memo the prosecution has cited two witnesses namely Lal Din Constable and Daleep Singh Constable. It is further submitted that when both these witnesses were examined before the Trial Court, they had specifically stated that in their presence neither seizure memos were prepared nor the recovery memo wherein both these witnesses were cited as witness, was got exhibited before the Court below and this vital aspect of the case was not taken into consideration by the learned Trial Court while passing the impugned judgment and as such on this count alone, the judgment deserved to be set aside. It is further stated that in this case admittedly all the witnesses which had been cited by the prosecution in the challan they all are the Police witnesses and the investigating officer of the case did not bother to associate any independent witness in the entire proceedings conducted by him on the spot despite their availability, as the appellants were apprehended from a place which is Railway Station being visited by the passengers frequently and where large number of independent witnesses can be easily available around the clock. It is further stated that all the prosecution witnesses who were examined before the trial Court below they all had admitted one thing in the statement that at the time when the bag carried by the appellants was being searched many bye-passers were present there and were watching the proceedings, but despite that no effort was taken by the SHO Neeraj Kumar Choudhary and I.O of the case Ali Mohd. to associate any witness in the recovery and seizure proceedings and this vital aspect of the case was also ignored by the Court below while passing the impugned Judgment and order dated 23.05.207. It is also stated that another important aspect of the case which was not taken into consideration by the trial Court below was that all the prosecution witnesses who were examined before the trial Court below had not stated anything about the fact that any samples from the alleged injections were lifted on the spot. The prosecution has miserably failed to prove this fact before the trial Court below, that the samples from the concerned injection were taken by the I.O on the spot and on this count also the impugned Judgment and order dated 23.05.2017 was liable to be set aside. It is stated that yet another aspect which requires the kind consideration of this Hon'ble Court is that as per prosecution version the appellants were arrested along with the alleged contraband on 08.01.2015 and on the same day, the injections recovered from the appellants were seized and the samples were received by the FSL Expert on 14.01.2015, however, the prosecution has miserably failed to offer any explanation as to from 08.01.2015 till 14.01.2015, the samples remained in whose custody and in whose possession. Neither the I.O of the case had annexed with the final report the copy of register No. 19 of the concerned Malkhana nor he had cited the Mohrar Head Constable as witness in the case in order to prove that the alleged samples from the date of their seizure till they were deposited in FSL were remained in safe custody, which clearly shows that the prosecution had miserably failed to prove the safe custody of samples as well as remaining material in this case and as such, on this submission the impugned Judgment and order was liable to be set aside. It is also stated that in this case the prosecution had also not offered any explanation for explaining the fact with regard to the delay in sending the samples to FSL. As submitted in the proceeding para of the appeal, the recovery was effected on 08.01.2015 and the samples were received by the FSL Expert on 14.01.2015, after a delay of five days and the prosecution had not offered any explanation that as to what prevented them from sending the samples to the Laboratory for chemical analysis within the stipulated period of time i.e. after three days, and as such, on this count also the appellants were seeking the dismissal of the impugned Judgment and order dated 23.05.2017. It is further stated that another glaring deficiency in the instant case at hand which was also ignored by the trial Court is that the I.O of the case had not filled on spot the Form No. 29 i.e. CFSL Form on the spot and neither the same was sent to FSL Expert for comparison and this aspect was also ignored by the trial Court below while passing the impugned Judgment and order dated 23.05.2017. Last but not the least the ground on which learned counsel for appellants is seeking the reversal of the conviction is that all the prosecution witnesses which were examined before the trial Court below had contradicted each other on material aspect of the case like the time when the appellants were apprehended by the police, the place from where the appellants were arrested. It is further submitted that as per the statement made by PW Sat Pal Singh, he had stated that when the appellants were seen they ran away and were chased and apprehended by PW Kamal Mehra, however, when PW Kamal Mehra appeared before the trial Court he had no where stated that the appellants were chased by him. It is further submitted that anther contradiction which appeared in the evidence is in the statement of prosecution witness namely Lal Din Constable is that this witness was cited as a witness to the seizure memo of contraband, however, when he appeared he had nowhere stated in his statement with regard to any seizure of drugs in his presence.