State Of J&K vs Romesh Kumar

Vinod Chatterji Koul, J

Through the instant application, applicant-State seeks leave to file an appeal against the judgment, dated 14.09.2012, passed by the Learned Additional Sessions Judge, Udhampur( for brevity ‘Trial Court’) by virtue of which accused-respondent herein has been acquitted of charges under Sections 8/15 Narcotic Drugs and Psychotropic Substances, Act, (for brevity ‘NDPS Act’).

The brief facts of the instant case are that on 06.08.2006 PW Daya Nand, IHC along with PWs Ravinder Singh and Tariq Mehmood was engaged in traffic checking and frisking near Salathia Chowk, Udhampur. During checking at about 5 PM an auto bearing JKO2F/8131 being driven by the accused-respondent herein came from TCP side toward Court Road, Udhampur. On checking of the Auto, a polythene bag containing 3-1/2 Kg Poppy Straw was found hidden beneath the back seat of the Auto. On the strength of written report lodged by PW Daya Nand, crime no. 191/2006 for the commission of offence under Section 8/15 NDPS Act was registered in Police Station, Udhampur and the investigation was conducted by PW-Inspector Jagdev Singh the then SHO Police Station, Udhampur. During the course of investigation the recovered Poppy Straw was seized and sample was taken out for the purpose of chemical analysis which was accordingly. sent to FSL, Jammu. The statements of witnesses were recorded. FSL report was obtained. On conclusion of investigation charge sheet was presented against the accused-respondent herein in the Court. |

On 13.11.2006, formal charge for the commission of offence under Section 8/15 NDPS Act was framed against the accused-respondent herein. The accused-respondent herein pleaded not guilty, as such, prosecution was directed to lead evidence in the, case.

To prove the allegations against the accused-respondent herein, the prosecution cited as many as 10 witnesses and out of these ten witnesses, prosecution examined only 09 witnesses who were all police personals.

The accused-respondent herein stated before the Trial Court that the witnesses have falsely deposed against him. He admitted that he used to drive auto bearing No.JK02F/8131, he was arrested by the police from his house at 10 AM and in the evening auto was also brought to the police station. No Poppy Straw was recovered from his auto. He expressed his ignorance to the statements of PWs Swami Raj, Shree Nath, Sudesh Kumar and Pawan Abrol.

After hearing learned counsel for the parties and going through the record, the Trial Court observed that it has come on record that the place of occurrence is a busy place, there was vehicular as well as traffic movement near the place of occurrence at the time when contraband was recovered and seized from the accused. Police has associated the police personnel on duty and one civilian, namely, PW Deepak Kliajuria as witnesses of occurrence and seizure. However, the police failed to examine the independent witness Deepak Khajuria nor any explanation was furnished as to why this witness could not be examined. PWs Tariq Mehmood, Daya Nand and Ravinder Singh, who were first to find the accused with alleged contraband have contradicted each other regarding the time they left the Police Station and PW Ganpat Rai has developed a different story as according to him the SHO sent Harbans Singh to Police Station for bringing balance and weights, whereas PW Ravinder Singh on the other hand has stated that the SHO brought the weights and balance from the Police Station.

The Trial Court further observed that the testimony of the witnesses of the police is, therefore, doubtful and in the absence of its corroboration by the independent witnesses it cannot be relied upon. In this case, though the police joined one independent witness in the recovery and seizure, but he has been withheld by the prosecution. Applying dictum of law laid down by the Apex Court, the Trial Court held that the police have failed to comply with the mandatory provisions of law while conducting investigation. The evidence collected by the prosecution was insufficient to connect the accused-respondent herein with the commission of offence, therefore, he has been rightly acquitted.

Viewed in the context what has been observed hereinabove, the application in hand is found to be without any merit, no ground is made out for granting leave to file the appeal, same is dismissed.