State of J. and K. vs Ashfaq Ahmed Sofi and Another

Bansi Lal Bhat, J.—This appeal is directed against judgment dated 28-8-2012 passed by learned Sessions Judge, Rajouri in case File No.

29/Challan titled State v. Ashfaq Ahmed Sofi in terms whereof respondents Ashfaq Ahmed Sofi and Iftar Ahmed Bhat (hereinafter referred as

accused) have been acquitted of Offences under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985. The impugned

judgment has been assailed on the ground that the learned Trial Court has failed to appreciate the evidence brought on record by prosecution

properly and it is contended that the prosecution evidence on record warrants conviction of accused on the aforesaid charges. Heard the rival

sides at the Admission Stage and perused the impugned judgment.

The prosecution case, in a nutshell, is that on 21-9-2011 SDPO Thana Mandi had laid a Naka at TCP Thana Mandi. While checking vehicles

at Naka Point a Tata Sumo bearing Registration Number JK13/1999 coming from Srinagar and proceedings towards Rajouri was subjected to

checking. Three persons were travelling by the said vehicle in addition to the Driver. One of the passengers was found behaving suspiciously. On

questioning by Police he disclosed his identity as Ashfaq Ahmed Sofi and stated that he was carrying narcotic substance viz. Heroine in a

Polythene bag which was meant for delivery to co-accused Iftar Ahmed Bhat. His personal search yielded a Polythene Bag containing a substance

weighing 500 gms which was seized on spot. Accused was apprehended by the Police. A Docket was sent to Police Station Thana Mandi for

registration of FIR. The investigation culminated in filing of the Charge-sheet against the accused. However, the learned Trial Court, on

consideration of the material assembled during investigation, discharge co-accused Iftar Ahmed Bhat. Accused Ashfaq Ahmed Sofi was charged

for commission of Offences u/s 8/21 of NDPS Act. Since he pleaded not guilty and claimed to be tried. Prosecution adduced evidence at the trial.

It has examined Mohd. Iqbal, Altaf Hussain, Mohd. Sageer, Mohd. Arif, Mohd. Zakheer, Suresh Kumar, Mohd. Sabar, Raj Kumar, Pawan

Abrol and Niyaz Ahmed-Inspector as prosecution witnesses at the trial.

After closing of the prosecution evidence, the lone accused facing trial was examined to explain the incriminating circumstances emanating from

prosecution evidence. He denied the allegations levelled by prosecution witnesses and claimed to be innocent. He did not adduce evidence in

defence.

P.W. Mohd. Iqbal Constable deposed that on the eventful day a Tata Sumo No. 1999/JK13 coming from Srinagar side was intercepted at

TCP Thana Mandi. It happened at 11.30 a.m. Three passengers were found inside the vehicle. One of the passengers tried to conceal something.

He was asked to alight from vehicle. On enquiry he disclosed his name as Ashfaq Ahmed. He handed over a Polythene Bag containing Heroine to

SDPO. A Docket was sent to Police Station for registration of case. SHO arrived on spot. SDPO handed over the recovered Heroine together

with Recovery Memo to SHO. His cross-examination reveals that Police party comprised of 7/8 personnel.

P.W. Altaf Hussain-Constable has deposed on identical lines. He further stated that a sample of 20 gms was taken by SHO after recovered

substance was weighted and found to be 500 gms. The witness proved the Recovery Memo Ext. P-2/1 and the Seizure Memo Ext. P-2/2. His

cross-examination reveals that Heroine was not recovered from personal search of accused and SDPO had not informed the accused that he had

an option of being searched by a Gazetted Officer or a Magistrate.

P.W. Mohd. Zakheer-Constable also supported these witnesses in regard to search and recovery of the substance alleged to be Heroine.

According to his testimony the accused handed over Polythene bag containing Heroine to SDPO when the vehicle was stopped for being

searched. It is in his cross-examination that the accused along with contraband was brought to the Police Station where the contraband was

handed over by SDPO to SHO.

P.W. Mohd. Sageer-Constable, who too was a Member of Naka Team, supported the other witnesses in regard to recovery of Heroine.

According to his account, the accused handed over a bag containing Heroine to the SDPO. SHO was called on spot and the accused as also the

documents prepared on spot were handed over to SHO. It is in his cross-examination that the vehicle was searched by SDPO himself and the

Recovery Memo was also prepared by SDPO on spot. No Magistrate was called on spot. The bag containing Heroine was handed over by

SDPO to SHO and no sample of contraband was lifted in his presence.

P.W. Mohd. Arif-Constable has deposed that accused brought out a Polythene Bag from his luggage when the SDPO enquired about his

particulars after the vehicle was intercepted at Naka Point. The bag containing Heroine was seized. A Docket was sent to Police Station and SHO

came on spot. Heroine and its Seizure Memo were handed over to SHO.

In cross-examination he stated that there was prior information that the accused was carrying contraband in the vehicle. The Polythene bag was

brought by accused from the luggage kept in the vehicle. No Magistrate was called on spot. No sample was taken from the seized contraband.

P.W. Suresh Kumar-Constable deposed that when the Sumo was stopped for search, accused travelling therein started trembling out of fear

and informed SDPO that he was having Heroine in his possession. He handed over the Polythene Bag to SDPO and the Heroine was seized on

spot. A Docket was addressed to SHO who came on spot and the seized Heroine together with Seizure Memo was handed over to him. Sample

of seized contraband was not taken in his presence.

P.W. Mohd. Saber-Constable deposed that accused travelling in Tata Sumo handed over a Polythene Bag containing Heroine to SDPO

which was seized on spot.

In his cross-examination he stated that information was given to Police Station. SHO arrived on spot. Accused along with contraband was

handed over to him.

P.W. Raj Kumar stated that it was evening time when a Tata Sumo coming from side of Dera Gali was stopped at Naka as the accused tried

to conceal something, he was asked to get down from the vehicle. He alighted from the vehicle and handed over a bag containing Heroine to

Police. Docket was sent to SHO who came on spot and seized the Heroine and the documents. The witness supported the Recovery Memo and

Docket.

In cross-examination stated that there was no prior information about the carrying of Narcotic by the accused. He denied that the accused had

brought out the bag containing Heroine from his luggage. He did not support the Docket to the extent that SHO was with him at the time of

recovery of contraband. He also did not support the Recovery Memo to the extent that Heroine was recovered from personal search of accused.

P.W. Pawan Kumar Abrol-Assistant Scientific Officer, FSL deposed that he had examined the contents of sealed packet received in his office

on 23-9-2011 through ASI Som Dutt. On examination it was found that the sample contained Dicetyl Morphene (Heroine). He proved the

certificate market Ext. P-A.

P.W. Niyaz Ahmed-Inspector is the Investigating Officer. He claimed that he was accompanying SDPO Thana Mandi at TCP for checking of

vehicles. The Tata Sumo in question was intercepted at 5.30 p.m. Accused travelling by the same vehicle was searched by SDPO. Accused told

SDPO that he was having Heroine in his possession which was to be delivered to Iftar Ahmed at Rajouri. A black coloured packet containing

Heroine was recovered from the possession of accused. Same was seized on spot. It contained Narcotic substance weighing 500 Gms. FIR was

registered on the Docket of SDPO. The witness claimed that he had prepared the Site Plan, Recovery Memo and Seizure Memo of the Heroine,

he lifted the sample of contraband and got it resealed from FSL Jammu. He recorded the statement of witnesses and found the accused involved in

commission of alleged offence.

His cross-examination reveals that checking at the Naka Point was started at 5.30 p.m. He was with SDPO when search of the vehicle was

conducted. He denied the suggestion that he was not accompanying SDPO at the time of recovery of contraband. He has further stated that the

contraband was recovered at the instance of accused from beneath the seat of vehicle. He denied that Heroine was recovered from personal

search of accused. He has further stated that the Heroine was seized on spot but it was not sealed.

A cursory look at the summary of prosecution witnesses incorporated in the impugned judgment brings it to fore that the evidence adduced by

prosecution gives conflicting versions in respect of material particulars. There is no love lost amongst the prosecution witnesses in regard to the time

of conducting of search and effecting seizure of substance alleged to be Heroine from the possession of accused and the manner and circumstances

attending upon such search and seizure. It is shocking that the prosecution witness examined at the trial, despite belonging to Police establishment,

came up with inconsistent versions in material particulars of alleged occurrence. It is flabbergasting that while P.W.(s) Mohd. Iqbal, Altaf Hussain,

Mohd. Zakheer, Mohd. Sageer, Mohd. Arif and Suresh Kumar-Constable(s) claimed that the search and seizure of contraband from the

possession of accused was effected when the Tata Sumo coming from Dhera Gali side was intercepted at Naka Point at 11.30 a.m. P.W.(s) Raj

Kumar and Niyaz Ahmed-Inspector claimed that the vehicle was intercepted at 5.30 p.m. This apart while some witnesses claimed that the

accused on being questioned by the SDPO delivered bag containing 500 gms of Heroine to SDPO informing him that he was carrying the same for

delivering it to co-accused Iftar Ahmed at Rajouri, others reiterated that the bag was lying under the seat and it was recovered during search. It

also appears that while all witnesses except Niyaz Ahmed-Inspector deposed that SHO was not accompanying SDPO and it was only after

effecting recovery of contraband from the possession of accused by SDPO that a Docket was sent to Police Station and SHO arrived on spot,

PW-Niyaz Ahmed-Inspector has maintained that he was accompanying SDPO at TCP for checking of vehicles and it was in his presence that the

accused laid the information before the SDPO about the illegal possession of Heroine by him followed by recovery of contraband which was

seized on spot.

Perusal of Recovery Memo and Seizure Memo and the Docket sent to Police Station for registration of case reveals that Heroine was

recovered from personal search of the accused. The factual position emerging from this contemporaneous record runs parallel to the ocular

testimony of most of the witnesses who maintained that the recovery of bag containing Heroine was affected from beneath the seat inside the Tata

Sumo. Apart from the major contradictions brought out in regard to the time of occurrence when search, seizure and recovery of contraband was

conducted and assuming that factual position emanating from the Recovery memo, Seizure Memo and the Docket sent to Police Station for

registration of case is the correct version, there is no evidence on record to arrive at a finding that a meaningful option was given to the accused for

his search before a Magistrate or any of the Gazetted Officers specified in Section 42 of the NDPS Act. There is nothing on record even to

suggest that upon receiving of information about illegal possession of Heroine by accused, he had taken down the same in writing and that he had

sent a copy thereof to his immediate official superior within 72 hours as mandated u/s 42 of NDPS Act. No memo has been drawn up in this

regard and no evidence adduced in regard to compliance of mandatory provisions of Sections 42, 50 and 57 of NDPS Act.

What is worst is that identity of SDPO has not been disclosed and he has not been produced and examined at the trial to prove that the

exercise of search, seizure and recovery of contraband and the arrest of accused was a legitimate and lawful exercise conducted in conformity with

the mandatory provisions of NDPS Act. The evidence tendered by the prosecution witnesses comprise of only Personnel who were members of

Naka team. It is shocking that they have given two different, inconsistent and mutually exclusive versions in regard to time of search at Naka, the

manner is which the recovery was made and in regard to sealing of material and lifting of sample from the recovery substance.

On a cumulative consideration of the facts and circumstances projected by evidence we find it extremely hazardous and unsafe to rely on either

of the inconsistent conflicting versions. The case is doomed to fail as it has before the learned trial Court. The failure is squarely attributed to the

shoddy investigation and the conduct of officers comprising the Naka team. This conclusion is deductable on the basis of appreciation of

prosecution evidence. The recovery of Narcotic substance identified as Dicetyl Morphene from the person of accused in the manner alleged is

highly doubtful. Admittedly, the recovered substance was neither sealed nor was a sample lifted on spot to attach any credibility to the prosecution

version that the sample analyzed at FSL did represent the recovered substance.

We find no compelling and substantial reasons to take a view different form one taken by the learned Trial Court on appreciation of evidence.

Appeal is, accordingly, dismissed.