Dismissed

State Th.Sho.P/S.Udhampur v. Javed Ahmad

J&K HC1 Dec 2021SLA/24/2015

Case brief

AI extract

What is this about?

The High Court rejected the State's appeal against an acquittal under the NDPS Act. The Judge condoned the leave to appeal filing delay but dismissed the appeal, holding the trial Court correctly acquitted the accused due to a break in the safe custody chain of the seized sample.

What did the court decide?

Leave to appeal is declined; the acquittal is affirmed and CRAA No. 23/2015 is dismissed.

State Th.Sho.P/S.Udhampur Vs Javed Ahmad — Narcotics (NDPS) | J&K HC (2021)

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Sr. No. 05

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HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU

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SLA No. 24/2015 In CRAA No. 23/2015 CONCR No. 24/2015

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State of J & K

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….Petitioner/Appellant(s)

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Through :- Mr. Vishal Bharti, Dy. AG.

V/s

Javed Ahmad

….Respondent(s)

Through :- None.

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

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ORDER 01.12.2021

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CONCR No. 24/2015

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This is an application seeking condonation of delay of 170 days in filing leave to appeal to challenge the judgement dated 06.08.2014 passed by the learned Sessions Judge, Udhampur in case titled State Vs. Javed Ahmad for commission of offence under Section 8/15 NDPS Act.

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The application, for the reasons stated therein, is allowed and the delay in filing the leave to appeal is condoned.

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SLA No. 24/2015

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Leave to appeal against the judgment dated 06.08.2014 passed by learned Sessions Judge, Udhampur (“the trial Court”) in File No. 08/Special Challan titled State Vs. Javed Ahmed is sought primarily on the ground that learned trial Court has failed to appreciate the evidence on record and has acquitted the respondent by giving him the benefit of doubt when there was

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SLA No. 24/2015

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sufficient evidence available on record to connect the respondent with the commission of offence under Sections 8/15 NDPS Act. It is contended by learned counsel for the petitioner that when the trial Court had come to the conclusion that statements of the witnesses were in sync with each other, then there was no reason to give the benefit of doubt to the respondent and acquit him of the serious charges under Sections 8/15 of the NDPS Act.

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Heard Mr. Vishal Bharti, learned counsel for the petitioner and perused the material on record, in particular, the judgment impugned by which the trial Court has acquitted the respondent by giving him the benefit of doubt, I find no legal infirmity in the judgment impugned. 3. The trial Court has righlty concluded that the prosecution has failed to explain the safe custody of the contraband from the date of its seizure till it landed before the Forensic Science Laboratory, Jammu. It may be pointed out that as per the prosecution evidence on record, the alleged contraband item was seized from the respondent on 05.01.2011 and the same was resealed by the Executive Magistrate on 06.01.2011. It is on the same date it was sent to Forensic Science Laboratory, Jammu for chemical examination. As is apparent from the report of FSL Ext. P-5 dated 22.12.2012, the sealed sample was received by the FSL on 19.01.2011 through ASI Mohinder Singh of Police Station Udhampur. It also comes to fore that the sample, which was seized and sealed on 05.01.2011 and resealed on 06.11.2011 by the Executive Magistrate, was actually dispatched to FSL on 12.01.2011. There is, however, no explanation coming forth from the evidence as to where the sample was from 05.01.2011 to 12.01.2011. At least, from the evidence it is clear that it was never kept in the safe custody, i.e., Malkhana of the Police Station. I am saying so because neither the Incharge Malkhana has been examined nor the Malkhana

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SLA No. 24/2015

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register has been produced before the trial Court. It is also not coming forth as to why the sample of contraband item, which was dispatched by the Police Station on 12.01.2011, took seven days to reach Jammu from the Police Station Udhampur. This casts serious doubt on the prosecution story. In the light of the evidence on record, it is very difficult to say that the sample, that was allegedly seized from the respondent and the sample which was actually tested by the FSL Jammu, was the same sample. The safe custody of the contraband item from the date it is seized till it is put to chemical examination by the FSL is sine qua non for connecting the person from whom the alleged contraband is seized with the commission of offence under Section 8/15 of the NDPS Act. The learned trial Court taking note of this aspect has rightly concluded that the prosecution has failed to prove the case against the respondent beyond any reasonable doubt.

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In view of the evidence on record, this Court does not see any reason to take a view different from the one taken by the trial Court. Otherwise also the scope of interference with the order of acquittal by the appellate Court is wellcircumscribed and even if, on the evaluation of evidence, two views are possible, the appellate Court will take the view which favours the accused.

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For the foregoing reasons, I find no merit in this application as such same is accordingly dismissed and leave to appeal is declined.

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As a result, CRAA No. 23/2015 shall also stand dismissed.

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(Sanjeev Kumar) Judge

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Jammu:

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01.11.2021 Sahil T

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Whether the order is speaking:? Yes/No Whether the order is reportable:? Yes/No

State Th.Sho.P/S.Udhampur v. Javed Ahmad

Case brief

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State Th.Sho.P/S.Udhampur v. Javed Ahmad

Case brief

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