High Court acquitted two appellants convicted under NDPS Act for possessing charas. Court held prosecution failed to prove the sample tested at FSL was the same one seized, citing gaps in sealing, chain of custody, and missing Malkhana records.
Appellants acquitted of all charges; bail bonds discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Reserved on : 25.02.2021 Pronounced on : 09.03.2021
Ali Mohd ...Appellant(s)
Through:- Mr. Sunil Sethi, Sr. Advocate with
Mr. Ankesh Chandel, Advocate in CRA 31/2008. V/s
State of J&K and others ...Respondent(s)
Through:- Mr. Jamrodh Singh, GA.
Mukhtar Ahmed ...Appellant(s)
Through:- Mr. P. N. Raina, Sr. Advocate with Mr. J. Hamal, Advocate in CRA 30/2008. V/s
State of J&K and others ...Respondent(s)
Through:- Mr. Jamrodh Singh, GA.
Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Sanjeev Kumar-J
1 . These two appeals, one filed by Ali Mohd the driver and the other by Mukhtar Ahmed, the conductor of the Truck, wherefrom the alleged contraband was seized, are directed against the judgment of conviction and order of sentence passed on 28.11.2008 by learned Sessions Judge, Ramban [the trial Court] in File No. 15/C titled State vs. Ali Mohd and another. The
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trial Court has convicted both the appellants for offences under Section 20 (b) (ii) (C) read with Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 ( hereinafter „the NDPS Act‟) and has sentenced both to undergo Rigorous Imprisonment for a period of 12 years and a fine of ₹ 2 lacs each. In case of default in payment of fine the appellants have been directed to undergo further rigorous imprisonment for a period of one year.
2 . Before we advert to the grounds of challenge urged to assail the impugned judgment, it is necessary to first give brief resume of the prosecution case.
3 . As per prosecution, on 24.09.2006, Constable Altaf Hussain presented a docket in Police Station Chanderkote for registration of FIR. As per the docket, Sachinder Pal Singh, PSI along with SHO Ghulam Hussain, Constable Altaf Hussain, Parkash Chand, Abdul Wahid, SPO Ravi Kumar and Dharam Paul had laid a Naka near Makhan Dhaba on National Highway at Chanderkote. While checking of traffic was going on, at 9.45 P.M one Truck bearing Registration No. JK02C-9873 driven by appellant Ali Mohd came from Srinagar and was proceeding towards Jammu. The Truck was ordered to be stopped but the driver ignored the signal and tried to run away. The vehicle was chased and stopped near the market in Chanderkote. On checking, one white plastic bag containing suspected contraband was recovered from near the driver seat. On enquiry, appellant Ali Mohd informed that it contained „Charas‟. On the information given in the docket, FIR 67/2006 for offences under Sections 8/20 of the NDPS Act was registered in Police Station Chanderkote. During the course of investigation, the Investigating Officer, i.e. SHO Nazir Ahmed Dar, prepared the site plan and various seizure memos. The contraband item was seized and was weighed with the help of weighing
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machine belonging to one Gurdev Singh, the owner of Makhan Dhaba. The contraband item was found to be weighing 8 kg and 700 grams. From the seized contraband, two samples of 60 grams and 40 grams each were taken and sealed in two packets marked as „C‟ and „B‟ respectively. The rest of the contraband, weighing 8 kg and 600 grams was separately sealed and marked as „A‟. The packet weighing 60 grams i.e. the packet marked as „C‟ was sent to Forensic Science Laboratory („FSL‟) whereas sealed packet marked as „B‟ weighing 40 grams was sent to the area Magistrate. The third packet marked as „A‟ was sent to the Malkhana after being sealed on spot and then being resealed in the presence of the Executive Magistrate, Batote. The ring used for sealing of samples was given on superdnama of Gurdev Singh, the owner of Makhan Dhaba. On the basis of opinion of the FSL, the contraband item was confirmed to be „Charas‟ and, therefore, the investigation was concluded as proved against the appellants and accordingly a charge sheet for offences under Sections 8/20/29 NDPS Act and Section 3/181 of the Motor Vehicles Act was laid before the trial Court.
4 . To prove its case, the prosecution examined PW1-Sachinder Paul Singh, PW2- Ghulam Hussain, PW3 Mohd Yasin, PW4-Zahoor Hussain, PW5- Abdul Gani, PW6- Surjeet Singh, PW7-Altaf Hussain, PW8-Mohd Yousaf, PW9- Abdul Rashid Rather, PW10- Abdul Wahid, PW11- Pawan Abrol and PW12- Nazir Ahmed Dar. On the closure of the prosecution evidence, the incriminating circumstances appearing against the appellants were put to them and their statements under Section 342 Cr.P.C were recorded. The appellants took the plea that no illicit drug had been recovered from the truck and that the prosecution witnesses were lying and had framed them in a false and frivolous case. The trial Court heard the arguments of the learned
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Public Prosecutor and the learned counsel for the accused and, after analyzing the evidence on record, came to the conclusion that the prosecution had sufficiently proved the recovery of the contraband item from the possession of the appellants and the samples drawn from the seized item, on chemical examination, were found to be „charas‟, and, therefore, it was proved beyond any shadow of doubt that both the appellants were in conscious possession of the contraband and had, therefore, committed the offence under Section 20 (b) (ii) (C) read with Section 29 of the NDPS Act. After affording opportunity of being heard to the defence counsel as also to the Public Prosecutor with respect to quantum of sentence, the trial Court imposed the sentence of 12 years rigorous imprisonment and a fine of ₹ 2 lacs each on the appellants.
5 . The appellants have filed two separate appeals though they have been convicted and sentenced by a common judgment passed on common evidence. The impugned judgment of conviction and the order of sentence has been assailed by the appellants primarily on the ground that, having regard to the nature of evidence that has come on record during the trial, it is difficult, nay impossible, to conclude that recovery of any contraband item was effected from the possession of the appellants. It is argued that in view of serious contradictions in the statements of the prosecution witnesses, there is no link established between the alleged contraband recovered from the appellants and the sample subjected to chemical examination by the FSL/ It is submitted that in view of glaring contradictions in the statements of the prosecution witnesses, the link evidence is incomplete and it is difficult to show with certainty that the sample which was subjected to chemical examination by the FSL was the one drawn from the alleged contraband actually recovered from the possession of the appellants.
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6 . Mr. Sunil Sethi, learned senior counsel appearing for the appellant- Ali Mohd, would argue that there are serious contradictions in the statements of the prosecution witnesses which go to the root of the prosecution case. He laid great emphasis on the following contradictions:-
(i) That there is contradiction with regard to the actual place from where the recovery of the contraband has been affected. He submits that as per PW-Sachinder Paul Singh, the white plastic bag containing contraband was recovered from near the driver‟s seat, whereas, as per PW-Ghulam Hussain and PW- Altaf Hussain it was found behind the driver‟s seat. Yet another PW- Mohd
Yasin has stated that it was recovered from the cabin of the Truck.
(ii) That there is serious contradiction with regard to sealing of the samples by the Executive Magistrate- PW9- Abdul Rashid Rather. Some of the witnesses have stated that the Executive Magistrate was present on the spot whereas some of the prosecution witnesses, including the Executive Magistrate himself, has stated that the samples were presented before him at Batote for re-sealing. It is thus submitted that even the re-sealing by the Magistrate is doubtful.
(iii) That there is serious contradiction with regard to resealing and sending of the sealed item for chemical examination. As per PW9- Abdul Rashid Rather Executive Magistrate, the sealed packet was presented before him for re-sealing on 24.09.2006 when he, vide letter No. 485/NB dated 24.09.2006 sent the same to the FSL for chemical examination. He has also stated that the resealed packet was sent to FSL through Constable Ghulam
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Hussain. However, PW-11, Pawan Abrol, in his statement has
deposed that he received the sealed packet from Contable Surjeet Singh which was forwarded to him by Dy. S.P. DAR, Ramban along with the specimen seal impression on 31.10.2006. However, during his cross examination, the witness has stated that as per the certificate, the sample was sent to him on 26.09.2006 and the same was received by him on 29.09.2006. It is thus pointed out that it is doubtful as to whether the sample, which was allegedly sealed by the Investigating Officer on spot and resealed by the Executive Magistrate had ever reached the FSL.
7 . Having heard the learned counsel for the parties, perused the judgment and examined the evidence on record, we are of the view that the prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt.
8 . With a view to prove the offences with which the appellants had
been charge sheeted, it was incumbent upon the prosecution to prove beyond reasonable doubt the following factors:-
(iii) That the item, which was subjected to chemical examination in the FSL and was found to be contraband,
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was the same as was seized/recovered from the possession of the appellants.
9. In the instant case, when we carefully analyzed the statements of the prosecution witnesses, particularly PW Sachinder Paul Singh, who, along with other witnesses, had searched the vehicle and found the alleged contraband in a white plastic bag hidden near the driver‟s seat, we find that the prosecution has succeeded in proving that a white plastic bag containing suspected contraband was recovered from the possession of the appellants, minor contradictions here and there in the statements of the prosecution witnesses notwithstanding. PW1- Sachinder Paul Singh, PW7- Altaf Hussain and PW -2, Ghulam Hussain, have unequivocally stated that the alleged contraband was recovered near/behind the driver‟s seat. However, PW3- Mohd Yasin in his statement refers to the recovery having been made from the Cabin of the vehicle. It needs to be borne in mind that the driver‟s seat is in the Cabin of the Truck and recovery whether it is from behind the driver‟s seat or from near the driver‟s seat does not make any difference and could be two different ways of expression of same thing or situation. Such minor contradictions are not sufficient to discredit the otherwise consistent version of the prosecution witnesses. We are not in agreement with Mr. Sethi that the contradictions with regard to actual place of recovery of the alleged contraband are so serious as would knock the very basis of the prosecution case. We also do not wish to attach too much importance to the contradictions in the statements of the prosecution witnesses with regard to the place where the Executive Magistrate actually resealed the samples. It is true that in the statement of some of the prosecution witnesses it has come on record that the Magistrate was called on
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the spot for resealing of samples but the Magistrate, in his statement, has categorically stated that it was presented to him by the Police at Batote. To the similar effect is the testimony of the Investigating officer, who, in his deposition, has stated that resealing was got done by the Executive Magistrate Batote on 26.09.2006 i.e. two days after the occurrence when the seizure was effected.
10 . It is thus held that, notwithstanding the minor contradictions here and some discrepancies there in the statements of the prosecution witnesses, the prosecution has succeeded in proving that the alleged contraband was recovered from the possession of the appellants. However, the appellants cannot be connected with the offence unless it is also proved by the prosecution that the seized item is a contraband item, possession whereof is culpable under the NDPS Act.
11 . The trial Court has failed to notice that a very important witness in the case, namely, Gurdev Singh, owner of Makhan Dhaba who had weighed the alleged contraband and on whose superdnama the ring used for sealing the sample was kept, has neither been cited as prosecution witnesses nor examined before the trial Court. It is also not forthcoming from the evidence of the prosecution as to whether the ring, which was used to seal the samples, was forwarded to the Executive Magistrate when he resealed the samples. There is also a major contradiction as to whether the sample, which was re-sealed by the Executive Magistrate and sent to the FSL through Constable Ghulam Hussain, was actually received by the FSL for chemical examination. As a matter of fact, the statement of PW-11 Pawan Abrol clearly points to the fact that what was subjected by him to the chemical examination was the product
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received by him in the shape of sample forwarded to him by the Dy. S. P. DAR through Constable Surjeet Singh. It is thus not understandable as to where the sample, which was re-sealed by the Executive Magistrate, has gone and which was the sample forwarded by Dy. S.P. DAR, Ramban, to FSL. So far as the testimony of PW-11 Pawan Abrol is concerned, he claims to have received the sealed packet sent to him by Dy. S.P., DAR, Ramban through Constable Surjeet Singh, which, as per the witness, was sent by the Dy. S.P on 27.09.2006 and received by him on 29.09.2006. He also claims to have received a letter of the Executive Magistrate dated 26.09.2006 but claims that he has not given his opinion in response to the aforesaid letter.
12 . As per the statement of the Investigating officer, in all three samples were prepared i.e. „A‟, „B‟ and „C‟. Out of the three packets prepared by him, one was sent to the Magistrate for re-sealing and other two were deposited in the Malkhana. If that be the true position, than it is not forthcoming as to which of the sample was with the Dy. S.P., DAR, Ramban, which he forwarded to the FSL through Constable Surjeet Singh. Interestingly, neither the Malkhana register has been produced nor the in-charge Malkhana has been produced as a witness.
13 . Going by the nature of evidence, which has been led by the prosecution, it is very difficult rather impossible to conclude that the contraband, which was subjected to chemical examination by the FSL and was found to be „charas‟, was the same as was recovered by the police on spot from the possession of the appellants. The link evidence is, therefore, incomplete. This aspect has not been considered by the trial Court and the conviction has been based only on the ground that the prosecution had
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sufficiently proved the recovery of the item, which, on chemical examination by the FSL, was found to be „charas‟. The movement of the alleged contraband from the time of its seizure till it reached FSL for chemical examination leaves enough scope for its tempering and re-placement. As is the case of the prosecution, the samples were prepared on spot on 24.09.2006 itself and the same were taken to the Magistrate for re-sealing on 26.09.2006. It took two days for the prosecution to produce the sealed samples for re-sealing before the Magistrate, which puts the safe custody of the contraband in jeopardy. It is the categoric statement of the Executive Magistrate that one of the samples, after re-sealing, was sent to the FSL through Constable Ghulam Hussain on the same day i.e. 26.09.2006, whereas PW Surjeet Singh claims that he collected the sample from Dy. S. P. DAR, Ramban on 27.09.2006 and delivered the same to the FSL on 29.09.2006, without explaining as to where he had kept the sample for two days. That apart, the seal impression i.e. ring with which the three different samples „A‟, „B‟ and „C‟ were sealed on spot and was kept on the superdnama of Gurdev Singh, was never sent to the Executive Magistrate nor to the FSL. Interestingly, Gurdev Singh has not been produced as a witness by the prosecution nor the seal impression i.e. ring has been produced before the trial Court. In these circumstances, the link evidence is rendered incomplete and puts the whole case of the prosecution in the realm of doubt. Hon‟ble the Supreme Court in State of Rajasthan v. Gurmail Singh, 2005 SCC (Cri) 641 , in somewhat similar circumstances held thus:-
“...................We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the
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seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.
We find no error in the judgment of the High Court. This appeal is, therefore, dismissed.”
14 . Having given our anxious consideration to all aspects of the case, we are of the view that it is a case where the prosecution has failed to place on record cogent link evidence which could connect the appellants with the offences charged.
( Puneet Gupta) (Sanjeev Kumar) Judge Judge
JAMMU. 09.03.2021
Anil Raina, Addl. Registrar/Secy
Whether the order is speaking: Yes Whether the order is reportable: Yes
The judgment is pronounced in terms of Rule 138 (4) of the Jammu and Kashmir High Court Rules, 1999.
(Sanjeev Kumar) Judge
JAMMU:
March 09, 2021
3 issues framed by the court
Whether the prosecution proved that the contraband sent for chemical examination was the same seized from the appellants' possession.
Whether the link between the recovered items and the laboratory-tested samples was established beyond reasonable doubt.
Whether the contradictions in prosecution witness statements regarding sealing and timeline vitiate the conviction.
Colour shows how this judgement treated each authority
State of Rajasthan v. Gurmail SinghDistinguished¶62
State of Rajasthan v. Gurmail Singh, 2005 SCC (Cri) 641 · Who else cites this
1 provisions across 1 enactments
ALi Mohd
MUKHTAR AHMED
STATE OF J&K
SANJEEV KUMAR
PUNEET GUPTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
