State vs Sanjay Kumar

Sanjay Kumar Gupta, J

This acquittal appeal has been filed by the State against judgment dated 03.01.2008 passed by the learned 2nd Additional Sessions Judge, Jammu in case FIR No.165/2001 under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 of Police Station Satwari, by virtue of which the Court has acquitted the respondent.

The State has challenged the judgment on the ground that the judgment is against the facts and law and the court below has mis-appreciated the evidence. It has further been stated that the court below has misconsidered the law attracted to the facts of the present case, as such, the judgment is liable to be set aside. While acquitting the accused/respondent, the court below has committed the grave error of law.

I have considered the contention of learned counsel for the appellant.

Brief facts of the case are that on 19.12.2001, a police party headed by PW Harjeet Singh-Inspector, then SHO, P/S Satwari was on routine patrol towards Gobindpura Kalyan Chatha when a source report was received by a police party that accused was in possession of poppy straw and was indulging in its trade. The police party rushed to spot and at around 9 AM they raided tea stall of accused, gave him the option of search and searched him as well as his premises, after SDPO South City Jammu arrived on spot. A polythene bag was recovered from behind the refrigerator lying in the tea stall where from 2 kgs 200 gms of poppy straw was recovered. 50 gms of the contraband was separated for chemical examination. After completing the formalities and collecting the evidence, the Investigating Officer concluded the complicity of the accused in commission of offence under section 15 NDPS Act and so the charge sheet was laid in the court. Accused pleaded not guilty to the charges framed against him under section 15 NDPS Act and so prosecution examined all the listed witnesses and defence none.

During the course of trial, the prosecution produced PWs S. Sukhinder Singh, K.K.Raina, Ramneek Singh, Puran Chand, Rohit Koul, Dr. Jagdish Singh, Abdul Rauf, Ghulam Nabi, Harjeet Singh and Puran Chand as prosecution witnesses. The court below after conclusion of trial, acquitted the accused. The relevant paras of the judgment read as under:-

"16. In the outset I would like to refer to a very important aspect of the case, which probably the investigating officers and SDPO who was the part of investigation, have not addressed to. What is made punishable under NDPS Act is conscious possession of a prohibited substance. What is conscious possession, is the core issue and before launching a prosecution against an individual the investigator has to ensure that contra band was recovered from the conscious possession of accused. For instance in this case the contraband was recovered from behind a refrigerator in a stall, which the investigator alleges to be that of accused. One does not understand as to how the investigating officer concluded that the shop was that of the accused. There is nothing on record to suggest that any inquiry was made by investigating officer about the ownership/possession of the shop. A raid was conducted on tea stall where accused was also present and the contraband was allegedly recovered from the shop. There is a set of prosecution witnesses who say that shop from where contraband is said to have been recovered belonged to brother of accused. In this regard reference can be made to PW Ramneek Singh and PW Puran Chand. PW Ramneek Singh in his statement makes it clear that recovery was made from the shop of brother of accused. PW Puran Chand also says that accused is an employee somewhere and police raided his brother's shop at Gobindpura. Not only this PW Sukhvinder Singh also says that he does not know whether the shop was being run by accused or his brother. We have no defence evidence on record but the prosecution evidence itself is sufficient to conclude that shop does not belong to accused and it may be a fact that accused at the time of raid was present but that cannot be used as a ploy to fasten the liability on him. The law requires an accused to be in conscious possession of contraband and unless it is established that that prohibited substance was recovered from the conscious possession of accused, the prosecution would not lie. I would refer to AIR 1996 S.C 3033 wherein the court observed as;

"Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Sc,8(c), 22-Search and seizure-Ownership and possession of premises by accused from which contraband articles were seized not established-Accused entitled to be acquitted"

In the same context reference to 2004(2) Crimes 309 (SC) would be useful. The court discussed the issuc as:

"Narcotic Drugs and Psychotropic Substances Acr, 1985-Section 15-Recovery of 100 bags of poppy husk lying in a field in the village and respondent- accused were found sitting on those bags-High Court in appeal set aside conviction holding that prosecution failed to prove conscions possession by accused-State appeal-Respondents belonged to different village-No investigation was made as to how bags were transported to place of incident-No evidence to show ownership of poppy husk-Failure to give satisfactory explanation by accused for being present on that place itself did not prove that they were in possession of those articles-Acquittal judgment did not require interference."

So the very basis of the prosecution case appears to be shaky as the material on record suggests that the shop, where from recovery was effected belonged to brother of accused and so even though accused was present there at the time of raid, the liability of possessing the contraband cannot be fastened on him because we do not have any material to show that accused knew about the contraband being hidden in the shop. So this is the first serious infirmity in the case.

Another issue that needs to be referred to is that the recovery of contraband was made on 19.12.2001 and the sample reached FSL on 10.1.2002.We do not have any evidence to show that sample remained in safe custody during all this period. The requirement of law is that safe custody of the sample has to be ensured till it reaches the FSL so that chances of tampering the sample are ruled out. Here the sample was received in FSL after almost 20 days and no one knows where the sample was kept for all these days. Prosecution was to examine malkhana in charge or to produce mallkhana register to show that sample remained in safe custody till it was received in FSL but that has not been done by prosecution. This again is a very serious infirmity and obviously goes to the root of the case. Reference to 2005 (1) Acquittal 438 would be apt in this regard where Hon'ble Supreme Court observed as:

"Narcotic Drugs and Psychotropic Substance Act, 1986-Section 8/15-Conviction under recorded by trial court was set aside in appeal by High Court-State appeal-Link evidence was not satisfactory-Malkhana register was not produced to prove that seized contraband was kept in Malkhana on date of seizure 20.5.1995 till it was taken to Excise Laboratory-No sample of seal was sent along with sample to Excise Laboratory-No error in judgment of acquittal"

Almost similar view was taken in 2005 (3) RCR (Crimes) 491

One would appreciate the action of IO that he has associatcd two civilians with search and seizure but none of them has supported the prosecution case. One of the important witnesses as per documentary evidence on record is PW Puran Chand. Almost every document right from option of search to recovery has been shown to have been prepared in his presence but he has not supported the prosecution case as required. His statement does not establish anything against accused. He has simply stated that he was called to police station and packet was sealed in his presence and the seal was given to him on superdnama. This is all what this witness says and obviously he has not supported the prosecution theory. Similarly PW Ramneek Singh has also turned hostile. So both the civilian/independent witnesses have not come up to the expectation of police officials. It is one thing that independent witnesses are not available but when there are available and do not support the prosecution story, the situation is entirely different. A very genuine question that arises is why do only police officials support the prosecution while as independent witnesses support the defence version and in such a situation a consequence is that the entire prosecution version becomes doubtful. Here in this case the doubt hardens because of the aforementioned lapses/defects. The contraband, which remained with investigating agency, was not produced before the court during the examination of the witnesses although requirement of law is that the contraband has to be produced in court so that same is got identified through witnesses. The prosecution witnesses have not been shown contraband in the court. Apex Court has seriously viewed this lapse in 2003 AIR (Criminal) 706 wherein the court observed as:

"Recovery of drugs-Proof of -The best evidence is the production of seized materials before court during trial and marked as exhibits-Mere oral evidence is not sufficient"

A sample of 50 grams was sent to FSL but only 48 grams was received there, so there is a short fall of two grams. Discrepancy in weight is not an issue, which can be over looked. There is ample law on the point that once there is discrepancy in weight the case of the prosecution becomes doubtful, as it becomes doubtful whether the sample received in the FSL was same which was forwarded by police agency. I would like to refer 2007(1) Acquittal 268,wherein court observed thus:

"Narcotics Drugs and Psychotropic Substance Act, 1985-Sections 8/18-Recovery of opium from field on information given by appellant while in custody-Conviction of appellant under section 8/18-Appeal against conviction on plea of variance in weighment of sample seized and sent to FSL for examination-Validity-Absence of explanation regarding discrepancy in weighment of sample seized and sent to FSL for examination renders case of prosecution doubtful-Perusal of recovery memo indicated that two samples of 50 gms each were taken and sealed and sent to FSL-However FSL report showed that sample weighing 43 gms was received in laboratory-Hence it could not he said that same sample which was seized in case was sent for chemical examination-Said discrepancy prejudiced case of accused appellant-No evidence to show that seal which was used in sealing sample was sealed and same was sent to FSL along with samples-Accused appellant held entitled to benefit of doubt-Recovery of contrahand itself being doubtful."

Similar view was taken in 1999 (2) Crimes 362.

The raid on the tea stall was conducted by SDPO and SHO in a hush hush manner without following the requirement of law. The appropriate course would have been that searching officials i.e. SDPO and SHO should have offered their search first before entering the premises, so that the chances of implanting an objectionable substance could be ruled out. But neither SHO nor SDPO offered their search before forcing entry in the tea stall. Again no one else was permitted to enter the tea stall. So who knows, how the recovery was affected. There is evidence that the police officials even were not permitted to enter the shop. PW Sukhvinder Singh SGC states that SHO and SDPO only went inside the shop and brought out the polythene bag containing poppy straw. So as per this witness it was only DySP and SHO who went inside the shop. All others remained out. This fact is contradicted by PW Harjeet Singh who says that under the supervision of SDPO, police officials conducted search. So there is a conflict in the prosecution evidence itself about the search and in such a situation, it becomes difficult for the court to believe either of the two, more particularly in view of the fact that the independent witnesses have neither supported the search nor seizure. That again castes a very serious doubt on the genuineness of the prosecution story.

The up shot of the entire discussion held above is that this case suffers from so many infirmities, some of which are very serious. So the prosecution version becomes doubtful and a doubtful case does not qualify for conviction. The nexus between accused and the guilt has not been established, convingingly. So the accused deserves a benefit of doubt. The case is as such dismissed and accused is acquitted while being given benefit of doubt. His bail bonds shall stand discharge. Seized material be destroyed after appeal period. The file be consigned to records after completion."

From bare perusal of judgement passed by court below and when it is read with the evidence on record of trial court, it is evident that findings of court below neither suffer from infirimity of law nor of facts. NDPS Act is special Act and it provides stringent punishment; so there are ceratin cardinal principles of law, which are procedural in nature and has to be complied with during investigation. Conscious possession of contraband is foremost consideration, which in present case the prosection has failed, because contraband was found behind refrigerator in a shop, which did not belong to respondent; as rightly held by court below, no ownership document of shop where raid was conducted, has been obtained by I/O during investigation. It is also law that contraband seized has to be deposited in malkhana immedialy after seizure in order to rule out tampering. After going through the record, I find that there is no evidence in the shape of receipt of Malkhana register. Further, seizure has been effected on 19.12.2001 and the sample reached FSL on 10.01.2002. As to where the samples remained during intervening period, there is no evidence. After going through the record, it is evident that two independent witnesses PWs Puran chand and Ramneek Singh have turned hostle and they have not supported prosecution case.

In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offence charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the establishment of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral uncertainty and every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit the accused, because it is better that several guilty persons should escape than that one innocent person suffers. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure due diligence and carefulness required to see that the evidence is properly brought on record and that prosecution does not fail to such neglect. There is inevitably long distance to travel between 'may be true' and 'must be true'. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.

In view of above discussion, I am of the considered opinion that reasons given by trial court while acquitting the accused are supported with laws discussed in impunged judgement. Accordingly, this appeal is dismissed.