Puneet Gupta, J.:— The leave to appeal is sought through the present application against the judgment dated 15.07.2019, passed by the learned Principal Sessions Judge, Jammu in case No. 17/Spl. whereby the respondent has been acquitted, on the ground that the judgment passed by the trial court is against law and facts of the case and the trial court has not appreciated the circumstantial and other evidence available on record.
2. F.I.R. No. 181/2011 came to be registered with Police Station, Jhajjar Kotli 09.12.2011 for offence under Section 8/15 NDPS Act on the receipt of docket sent by IHC Angrez Singh of Police Station, Jhajjar Kotli. It was reported through docket that IHC Angrez Singh along with other police personnel was on nakka duty at nakka point Katra Domail, NHW on 09.12.2011 when at 09.30 a.m a truck bearing No. JK02AT-3733 driven by its driver from Srinagar towards Jammu was stopped at the nakka for checking. During checking of the vehicle only driver-accused was found in the cabin of the Truck. The search of the truck was conducted by Constable Balbir Singh and during the search, a bag (Attachi type) was found containing 7-8 kg poppy straw (Bukhi) in white coloured plastic bag. The accused could not satisfactorily explain about the recovered material which the accused had illegally purchased and was smuggling the same towards Jammu. On the registration of the case, the investigation was conducted by SHO Police Station, namely Yash Paul Singh Jamwal.
3. The charge was framed against the accused for offence under Sections 8/15 NDPS Act but did not plead guilty to the charges and claimed trial. The prosecution has examined number of witnesses in support of its case and also relied upon the documentary evidence. On the completion of the prosecution evidence, the statement of the accused was recorded under Section 342 Cr.P.C. who denied the version of the prosecution witnesses.
4. The trial court while acquitting the accused in the challan has mainly focused on the aspect if the samples collected had been in proper and safe custody during the relevant period. There cannot be any dispute with the proposition that in a case like the present one the contraband seized has to be in proper custody right from its deposit in the malkhana till the same is sent to the FSL for examination or even when the material seized other than the sample is required to be produced in the Court during trial. In the case in hand, as per the evidence on record, the material having been seized on 09.12.2011 and received by FSL on 13.12.2011 after it was got resealed by the Executive Magistrate on 10.12.2011 it was imperative upon the investigating officer to keep the material seized in safe and proper custody so as to rule out any tampering with the same. The malkhana incharge has not been produced nor the malkhana register is proved during the trial and the reason for the same can be known to the prosecution only. The supurdnama of the ring used for sealing is not given to independent witness so as to ensure that there was no chance of ring being again used for sealing any material. The statement of PW Yashpaul Singh who was investigating officer is sufficient to knock out the prosecution case on the above mentioned ground. The witness has stated that in his examination that the packet was deposited in the FSL and for three days the packet remain the malkhana of the Police Station. However, as stated above malkhana register has not been produced to give Philip to the statement of the witness. The oral evidence that packet was deposited in the malkhana is not sufficient to presume that the contraband was in proper custody during the relevant period. Infact the witness does not know as to who was malkhana incharge at the relevant time. The statement of investigating officer does not bring reliability to the prosecution case so far as the deposit of the sample in the malkhana and safe custody after the contraband was recovered from the accused is concerned. The statement of PW Abdul Gani Bhjat, Assistant Scientific Officer, FSL Srinagar is only to the effect that one sealed packet mark A was forwarded by SDPO Nagrota for chemical examination. The statement of this witness by itself cannot reveal about the proper and safe custody of the article sent for examination before it was dispatched to FSL. The trial court while doubting the prosecution case on the above aspect has relied upon in case titled State of J&K v. Bupinder Singh [2014 (4) JKJ (HC)] wherein the Court recorded absence of production of malkhana register and non-examination of officer Incharge malkhana during the trial as important link evidence missing which could establish the fact that samples examined at FSL were same as seized. The court maintained the acquittal of the accused and dismissed the appeal. The dismissal of the challan by the trial court on the above mentioned flaw cannot be faulted with in the appeal.
5. The very fact that the poppy straw weighing 8 kg has been recovered as per prosecution from the truck allegedly driven by the accused does not mean that the accused has to be held guilty without establishing the case against the accused beyond shadow of doubt. The appellate Court finds no flaw in the findings of the trial court. The learned counsel for the applicant has not been able to make out a case which may require interference by this Court in the acquittal of the respondent herein recorded by the trial court.
6. The applicant has failed to make out a case for grant of leave to file the appeal and thus the application seeking leave to appeal is dismissed.
7. The application seeking condonation of delay in filing the appeal is also dismissed.
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