Honble Mr. Justice Dhiraj Singh Thakur Honble Mr. Justice Sanjay Kumar Gupta Appearing counsel: For the petitioner(s) : Mr. S. S. Nanda, Sr. AAG. For the respondent(s) : None.
i. Whether approved for reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in Digest/Journal : Yes/No Per:- Sanjay Kumar Gupta-J
1. This application has been filed seeking leave to file an appeal against acquittal earned by the respondent vide impugned judgment dated 10.02.2015 of learned Principal Sessions Judge, Jammu.
2. On 07.02.2017, the petitioner was directed to file fresh particulars of the respondent within two weeks. On 17.04.2017, this Court again granted further two weeks for furnishing fresh particulars of respondent and also observed that in case fresh particulars are not furnished within stipulated period, the Court may be constrained to dismiss the application for non- prosecution. Registry has reported that fresh particulars have not been furnished by the State.
3. Since this application is for seeking leave to appeal against judgment of acquittal passed by learned Principal Sessions Judge, Jammu, so we have SLAA No.D-119 of 2015 Page 2 of 7 heard learned counsel for the petitioner, Mr. S. S. Nanda, Sr. AAG, and have also gone through the impugned judgment and record of the Court below.
4. From the perusal of impugned judgment, it reveals that non- applicant/respondent was going towards Narwal Chowk on 24.02.2010 and on being searched by police, 450 grams of charas was found from his possession. Accordingly, he was booked under Section 8/20 NDPS Act and after completing the investigation, challan was produced before the competent Court of law. Accused was charge-sheeted on 04.10.2011 and prosecution was directed to produce the evidence. Prosecution has cited as many as six witnesses, but during the course of trial, it has examined only five witnesses. Court below after hearing the prosecution and accused dismissed the challan.
5. The brief resume of prosecution witnesses is as under:- Sudhir Sudan PW-1 is a police personnel deposed that his statement EXTP-SS recorded under Section 164-A Cr.P.C. is correct. The option memo EXTP-SS/1, memo of personal search EXTP-SS/2, seizure memo EXTP-SS/3 of the charas, the arrest memo EXTP-SS/4 and Fard Superdnama EXTP-SS/5 of the ring bears his signatures and contents are true. In cross examination deposed that in Narwal Chowk there are number of residential houses and shops and on the day of occurrence the shops were open. The chowki officer had prior information that accused is in possession of charas but chowki officer had not given information of the same to his higher officer. When the accused was arrested, in his presence the chowki officer had not given my option to the accused that he can get himself searched by a gazetted officer or a Magistrate. The chowki officer had got his signatures on the aforementioned documents in police post Narwal. Similarly, the other witnesses had also signed the documents in the police post Narwal. The seizure memo was not prepared in his presence SLAA No.D-119 of 2015 Page 3 of 7 and even the charas was not seized in his presence. The sample of the charas was also not taken out in his presence and personal search was also not conducted in his presence. At that time, he alongwith witness Raj Kumar was present in police post Narwal. In his presence, Dy. SP had not come on spot and neither was the charas seized in the presence of Dy. SP. Shello Ram PW-2 deposed that he had re-sealed the packets produced by the police before him. Des Raj PW-3 is also a police personnel, deposed that he knows the accused person. On 24.02.2010 at about 3.30 the chowki officer Narwal had laid a naka on the National High way. He along with other police personnel were on duty at Naka. In the evening the accused coming from side of Sunjwan on seeking the police tried to run away but was apprehended by the police. Then Dy. SP was called on spot and notice was given to accused and thereafter from possession of accused 450 gms of charas was recovered. Thereafter the accused was brought to police chowki. Memo of personal search and seizure memo was prepared on spot which are exhibited as EXTP-SS and EXTP-SS/2. The IO had kept the ring on his supurdnama vide EXTP-SS/5 and identified his signature on the same. The option memo EXTP-SS/1 and seizure memo EXTP-SS/3 bears his signature and contents are true. In cross examination deposed that the accused was apprehended by chowki officer Naveen Sharma who had informed us that charas has been recovered from accused. He has no knowledge about the recovery of the charas. The documents after the seizure of charas were prepared in the police chowki. In his presence, the option memo was not prepared but his signatures were taken by the chowki officer in police post Narwal. There are shops and houses on the spot of occurrence and civilians were also present and were called by the chowki officer and their signatures were taken by the police. The ring used for sealing was given back to the IO on the day of occurrence itself. SLAA No.D-119 of 2015 Page 4 of 7 Pawan Abrol PW-4 deposed that he had chemically examined the article sent to him and given his opinion as per report Ext.P-4 that the same is charas. Abid Rafiquee PW-5 deposed that he conducted part investigation of the case and taken the statements of two witnesses and thereafter presented the challan against the accused.
6. Court below on appreciation of evidence has held that seized contraband has not been produced in the Court during trial. Court below has also held that there are material contradictions in the statements of witnesses. That witnesses examined have not fully corroborated the prosecution case. That due to non examination of Investigating Officer, FIR, Site Map and seizure memo has not been proved. That original docket sent by Police Post Narwal to Police Station has also not been proved. The trial Court further held that there is non-compliance with the procedure laid down by the Act and this coupled with the inconsistencies, contradictions and embellishments affect the testimonial value of the witnesses examined by the prosecution. That the prosecution case suffers from legal infirmities which are glaring in nature and renders the prosecution case highly suspicious and it would be unsafe to record the conviction of the accused. The prosecution witnesses contradict each other on material points which make their testimony unreliable.
7. We have considered all aspects of the matter.
8. From the perusal of challan, it reveals that prosecution has cited as many as
10 witnesses but examined only 5 witnesses.
9. The Narcotic Drugs and Psychotropic Substances Act, views drug offences very seriously and prescribes stiff penalties. The Act follows a graded system of punishment with the punishment varying with the quantum of punishment being dependent upon whether the offence pertains to small, SLAA No.D-119 of 2015 Page 5 of 7 commercial and intermediate quantities of narcotic drugs and psychotropic substances. For offences involving commercial quantities of drugs, a minimum penalty of ten years rigorous imprisonment is prescribed, which may extend to twenty years. Repeat offences attract one and half times the penalty and in a few cases even the death penalty.
10. A combined reading of Sections 41, 42 43 and 51 of the NDPS Act regarding arrest and search under Sections 41, 42 and 43, the provisions of Cr. P.C. namely Sections 100 and 165 would be applicable to such arrest and search. Consequently the Principles laid down by various Courts regarding the irregularities and illegalities in respect of arrest and search would equally be applicable to the arrest and search under the NDPS Act also. Further as stringent penal consequence has to follow on conviction, so court has been advised to strictly fuller the cardinal principles of various laws given in statue and various law formulated from time to time by Apex Court and High Courts.
11. In present case, as per prosecution on 24.02.2010 police of police party headed by I/C P/P Narwal SI Naveen Sharma had laid a Naka at Narwal chowak; meanwhile an information was received that one person Sunil Kumar, who has been indulged in illegal sale of contraband; has kept under his shirt some contraband, is coming towards to their side; at 15.50 one person was found coming, he was stopped having something inside his shirt, he told his name as Sunil Kumar; he was given option of search before Magistrate or Gazetted officer; accused opted for gazetted officer. I/C P/P requested Dy. S.P (East) to come; he came on spot and in his presence search was conducted and on search 450 grams of charas was found from his possession. Accordingly, a docket was sent to police station Trikuta Nagar for lodging FIR by I/C P/P Narwal police post. Upon which, FIR no. 37/ 2010 u/s section 8/20 NDPA Act was registered and investigation was given to SI Virender Sharma SI, who conducted the SLAA No.D-119 of 2015 Page 6 of 7 investigation and during investigation prepared the seizure memo; weighed the contraband; sealed the contraband after taking sample; sample were got resealed from JMIC and sent to FSL. Arrested the accused and after completing the investigation, produced the challan.
12. Now coming to appreciation of evidence produced by prosecution during trial, it would reveal that; there are major contradictions; there are material defects in investigations; cardinal principles of procedural laws have not been followed; the material documentary evidence in challan have not been produced.
13. Bare perusal of statement of Sudhir Sudan PW-1, it is apparent that he has demolished the prosecution version that option was given to accused before search; that Dy.S.P came on spot; the seizure memo was not prepared in his presence; no personal search was done in his presence; sample of charas was not taken in his presence; he was made to sign on papers in police post. Shello Ram PW-2 deposed that he had re-sealed the packets produced by the police before him. Pawan Abrol PW-4 deposed that he had chemically examined the article sent to him and given his opinion as per report Ext.P-4 that the same is charas. Abid Rafiquee PW-5 deposed that he conducted part investigation of the case and taken the statements of two witnesses and thereafter presented the challan against the accused.
14. Bare perusal of statement of Des Raj PW-3, it is apparent that he has given altogether a different version. He has stated that on 24.02.2010 at about 3.30 the chowki officer Narwal had laid a naka; in the evening the accused coming from side of Sunjwan on seeking the police tried to run away but was apprehended by the police; then Dy. SP was called on spot and notice was given to accused and thereafter from possession of accused
450 gm of charas was recovered. Thereafter the accused was brought to police chowki. He is also witness to exhibited as EXTP-SS and EXTP- SLAA No.D-119 of 2015 Page 7 of 7 SS/2. The IO had kept the ring on his supurdnama vide EXTP-SS/5 and identified his signature on the same. The option memo EXTP-SS/1 and seizure memo EXTP-SS/3. In cross examination deposed that he has no knowledge about the recovery of the charas. The documents after the seizure of charas were prepared in the police chowki. In his presence, the option memo was not prepared but his signatures were taken by the chowki officer in police post Narwal.
15. So in this way, prosecution has miserably failed to produce any cogent evidence. Court below was, thus, right in observing that seized contraband has not been produced in the Court during trial; that there are material contradictions in the statements of witnesses; that witnesses examined have not fully corroborated the prosecution case; that due to non examination of Investigating Officer, FIR, Site Map and seizure memo have not been proved; that original docket sent by Police Post Narwal to Police Station Trikuta Nagar has also not been proved.
16. In view of above discussion, we do not feel any substantial material in prosecution case which requires that leave to file acquittal appeal be granted. Hence this petition is dismissed. (Sanjay Kumar Gupta) ( Dhiraj Singh Thakur ) Judge Judge Jammu, 01.09.2017 Narinder
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