Jammu and Kashmir High Court dismisses the instant appeal filed by the State against the respondents for offences punishable under the NDPS Act

On 13 May 2020, Hon’ble Chief Justice Gita Mittal and Hon’ble Ms Justice Sindhu Sharma, via video conferencing, heard the case of State of J&K vs Waqar Ahmad and another. The Court dismissed the appeal as it lacked in merit.

Facts Of The Case

On 24 February 2020, allegedly PSI Charanjit Singh headed a police team and intercepted a Maruti Car NO.JK02B-6850, coming from Srinagar. Two people with names Waqar Ahmad, a policeman, and Showkat Ahmad were inside the car at Hotel Shan at around 7:15 P.M. On checking, they recovered two white-coloured polythene bags from each of the front seats containing cannabis like material.

Subsequently, they registered an FIR at Ramban Police Station under Sections 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985.

After examining the witnesses and hearing both the sides, the Trial judge, on 12 December 2012 held that the prosecution failed to prove the charges against the accused. Thus, he acquitted the respondents. This Court granted the leave to appeal to the appellants on 5 August 2013.

Petitioner’s Submissions

Mr Jamrodh Singh learned Government Advocate made the following submissions on behalf of the State-

• The judgment dated 12 December 2012 was contrary to law and against the facts of the case.
• The judge passed the judgment in a mechanical manner without appreciating the evidence given by the prosecution.
• The eight witnesses examined by the prosecution did establish the guilt of the respondents without any doubt.
• The prosecution had not only led oral evidence but had also produced documentary evidence.
• Therefore, this evidence was sufficient to establish the guilt of the respondents.

Respondents’ Submissions

Mr P. N. Goja, the learned counsel for the respondents, made the following submissions-

• The respondents support the judgment dated 12 December 2012.
• The prosecution had failed to establish even the basic requirements of a charge under the NDPS Act.
• It had led contradictory evidence regarding the seizure of the contraband, a search of the vehicle and recovery of the
• The prosecution failed to establish the safe security and safe deposit of the contraband.
• The prosecution violated the mandatory provisions of Sections 55 and 57 of the NDPS Act by not complying with them. Thus, they failed to prove charges against the respondents.

Court’s Analysis

• The prosecution stated that PSI Charanjit Singh (PW-1) recovered and seized the contraband. However, PW-1 testified that it was SHO who recovered and seized the contraband.
• Subash Chander, PW-2, stated that SHO came on the spot and seized the contraband weighing 3.4 Kgs. The SHO prepared the seizure memo.
• Charan Dass (PW-3) stated that Charanjit Singh had effected the seizure and prepared the seizure memo in the presence of the SHO. This is contradictory to the previous statement.
• Farid Ahmad (PW-4) said that the SHO came on the spot, checked the vehicles, seized and weighed the contraband. At that time there was no civil person present around
• Jarnail Singh (PW-5) has supported PW-1 that he did not prepare any seizure memo.
• Sachin Verma examined as PW-6, a civil witness, did not assist the prosecution case at all.
• Despite having so many contradictions already, PW-8 the Inspector Ravinder Singh, the investigating officer contradicted all the evidence. He claims that he had seized the articles, prepared the samples and authored the seizure memo.
• PW-3 claimed that two packets were seized whereas the prosecution claimed it to be four.
• The investigating officer said that he had taken out and sealed the samples on the spot. PW-5 said that the samples were taken out at the malkhana.
• The prosecution did not provide any evidence of safe custody of the contraband at the malkhana after its seizure and before the magistrate resealed it. The prosecution claimed that the Executive Magistrate re-sealed the samples but he was not examined as a witness.
• The investigating officer dealt with the matter in a routine and casual manner, while overlooking the important aspects of the matter.
• The Investigating Officer made no efforts to record the confession statements of the accused, though he stated that the accused confessed before him of buying the contraband from Maqbool, Bijbihara for 5000 per kg.
• The submissions of the respondents have substance because none of the witnesses established where the samples were kept. Also, under whose custody they were sent to Forensics Laboratory for chemical analysis was not established.
• The prosecution was required to establish the safety of the seized material. It was also essential to examine the in charge of the malkhana, the Executive Magistrate and the person who took the samples to the Forensics Laboratory as witnesses
• The non-deposit of samples in the malkhana and non-examination of material witnesses has constituted non-compliance of mandatory provisions of Sections 55 & 57 of the NDPS Act.

Court’s Decision

The Court held that the Judgment given by the Trial Court is not at fault after hearing both the sides and examining the witnesses. The evidence and proof should be of higher standards for offences punishable under the NDPS Act as the punishments are stringent.

The Court held that the seizure itself has become doubtful due to contradictory pieces of evidence. The prosecution has failed to prove or establish anything against the respondents.

Therefore, the Court dismissed the appeal on grounds of lack of merit.

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