Jammu & Kashmir High Court – Srinagar Bench
Ut Of Jk Through P/S Baramulla vs Mohammad Saleem Khokher on 9 July, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA (AS) No. 09/2022
Reserved on: 27.05.2025
Pronounced on: 09.07.2025
UT of JK through P/S Baramulla
.....Petitioner(s)/Appellant(s)
Through: Mr. Jahingeer A Dar, GA
V/s
Mohammad Saleem Khokher ..... Respondent(s)
Through: Mr. Musavir Mir, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL-JUDGE
ORDER
1. Appellant has preferred this appeal against the Judgment dated
25.10.2021, passed by the court of Additional Sessions Judge,
Baramulla in case titled State of Jammu & Kashmir versus Mohammad
Saleem Khokher, in case FIR No. 79/2017 registered with police station
Baramulla for the offences under Section 8/21 of NDPS Act, for setting
aside the same.
2. The brief facts of the case are that on 14.05.2017, Police Station
Baramulla received a reliable information to the effect that some
unknown person/s in possession of the narcotic substance were all set
to come from the area of Uri to the Baramulla town pursuant to which
the police station Baramulla under the supervision of Dy. S.P.
Headquarter led a Naka on Baramulla -Uri Highway near Veervan and
started the search of vehicles and pedestrians. In the course of the
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search, the accused was witnessed coming in a suspected condition
from the area of Sheeri towards Baramulla who upon seeing the police
party, tried to flee away but was tactfully apprehended. The search of
the accused, who disclosed his name as Mohammad Saleem Khokher,
was conducted as per his option. The contraband narcotic substance
Heroine (Brown sugar) was recovered from his possession, which he
intended to carry to Baramulla town for the sale among the youth with
a view to drag them to the menace of drug addiction.
3. Pursuant to the said occurrence, PW-1 sent a docket to police station
Baramulla, on the basis of which an FIR No. 79/2017 was registered
and investigation started. During investigation, I.O. seized the already
recovered substance i.e. Heroine which weighed 514 grams. The
sampling was done in presence of Magistrate and sample was sent to
FSL for its opinion. The necessary memos were prepared and
investigation was finally concluded in the form of filing of challan
against the accused person/respondent before the Competent Court.
4. Respondent/accused was charge sheeted for the commission of offence
under section 8/21 NDPS Act by virtue of order dated 31.08.2017, who
pleaded not guilty and claimed to be tried and the prosecution was
directed to adduce evidence in testification of charge. The prosecution
produced and examined all the Nine (9) listed witnesses before the Trial
court. While announcing the impugned Judgement, Trial court held that
the prosecution has failed to prove the guilt of the accused person
beyond any shadow of doubt and, as such, acquitted the accused from
the charges levelled against him.
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5. The appellant is aggrieved of the impugned order/judgment dated
25.10.2021 and challenges it on the grounds: that the Judgment of
acquittal, impugned herein, is against facts and circumstance of the case
and is not sustainable in law. That the impugned judgment has been
passed in hot haste manner and without application of judicial mind to
the facts and circumstances of the case including the nature of offence.
That prosecution led un-rebuttable and forceful evidence before the
Trial court, which has beyond any doubt rooted the evil designs of the
respondent. The Trial court, however, while passing impugned
Judgment has lost sight of the law, facts and circumstances of the case
and in spite of guilt having been proved against the respondent. That
the Trial court has doubted the seizure of contraband from the
possession of the accused in an erroneous manner, though the recovery
of the contraband was proved to have been made from the possession
of the respondent. In the report of chemical analyst, it has been
established beyond any shadow of doubt that the substance recovered
from the possession of accused was Heroin (Brown sugar). The seizure
of brown sugar from the accused has been brushed aside by the Trial
court. In fact, it has been a case proved against the accused without any
reasonable shadow of doubt. The impugned judgment is perverse
inasmuch as it carved out a case of acquittal in favour of the accused
for offences under Section 8/21 of NDPS Act, which offence are against
the whole society. It is being stated that the Trial court has discarded
entire police evidence. As per settled principle of law, if evidence of
police officer/police official is reliable, inspires confidence and is of
sterling character, same can form basis for conviction inasmuch as the
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evidence is to be weighed and not counted and the quality of evidence
is more important than the quantity as it assumes significance. It is also
being submitted that the impugned judgment is passed in perfunctory
manner without appreciating the seriousness of the offence committed
by the respondents accused. The Trial court has not considered all
important aspects of the case that the trial against accused was started
only after the charge was framed against him by the court on the basis
of available material brought by the prosecution before the court. It is
also stated that the impugned judgment also smacks of the court below
having not adhered to the established doctrine of fair trial. The Trial
court seems to have carved out a third case which should have not while
in effort to disengage the truth from the falsehood and to sift or separate
grain from the sheaf. The investigating agency has proved the offences
committed by the respondent. It is also submitted that the perusal of the
impugned judgment gives an impression that there were contradiction
among the statements of the witnesses recorded during the course of
trial before the Trial court. But from the bare perusal of the material
evidence brought on record during the course of trial by the
prosecution, it becomes evidently clear that the recovery of the
contraband was proved to have been made from the accused/
respondent himself. However, assuming for the sake of argument but
not conceding that there were variations in some details between the
statements, same do not ipso facto amount to contradiction and more so
fatal to the prosecution case. For the contradiction are bound to happen
in the natural course of events and such contradiction only bear
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testimony to the fact that the witness has not been tortured but is
speaking the truth.
6. The case set up by appellant and contentions raised by counsel for
appellant requires perusal of the Trial Court record and the impugned
judgement.
7. Before the Trial Court, the prosecution examined all the nine witnesses
at the trial. The summary of the evidence produced by the prosecution
before the Trial Court is reproduced as under:-
PW-1 Shri Hussain Ahmad Malik, the then Sub Inspector
No.115709/ EXK resident of Lar Ganderbal posted at P/S
Baramulla (presently posted at Police Station Gulmarg) listed as
witness to the occurrence, recovery, seizure and weight,
examined on 06.09.2018 deposed in his examination in chief that
he knows accused present in the court. That it is the occurrence
of 14.09.2017. That the police station Baramulla received an
information to the effect that some person/s is coming towards
Baramulla from Uri with contraband narcotic substance,
pursuant to which he along with his companions and Dy. S.P
Headquarter laid a naka at Baramulla-Uri National Highway near
Veervan Pandith Colony and started search of the vehicles and
pedestrians. That during the course of search one person was
witnessed coming from Sheeri towards Baramulla who on seeing
the police party tried to flee away but came to be apprehended
tactfully. That during the search of the person a blue colored
polythene bag containing contraband drug like Brown sugar
came to be recovered who disclosed his name as Mohammad
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Saleem Khokher son of Feroz Ali Khokher resident of MadiyanKamalkote Uri. That a docket was sent to the P/S Baramulla
through SG. Ct. Javed Ahmad for the purpose of registration of
the case FIR. That he prepared a recovery memo in respect of the
contraband narcotic drug Brown sugar. That upon the
registration of the FIR in the police station the investigating
officer (I.O.) of the case namely Farooq Ahmad came on spot
who prepared the site plan and started investigation. That the I.O.
prepared the seizure memo of the recovered narcotic substance
as well as of the recovery memo prepared by him. That he
identifies his signatures on the docket which was sent by him to
the P/S for registration of the FIR. That the contents of the same
are true and correct on which ExPW-1 is inserted. That he also
identifies his signature on the recovery memo EXPW-3, the
contents whereof are true and correct. That he also identifies his
signature on the seizure memo ExPW-3/1 the contents whereof
are true and correct. The recovered narcotic substance was
weighed in his presence and the memo to that effect was also
prepared on which he signed. That he identified his signature on
the said memo Ext.P-8/1. That his statement under section 164-
A of the Code came to be recorded during Investigation. That the
contents of the said statement are true and correct. That the
recovered narcotic substance being shown to him is the same
which was seized from the accused.
In cross examination the witness deposed that before laying a
naka they were not knowing that the accused will come from
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Sheeri towards Baramulla vis Pandith Colony road. That theinformation was received by the SHO P/S and he himself was the
In charge SHO at that time. That he had received the information
from his own sources. That SG. Ct Javed Ahmad and SPO Javed
Ahmad were also accompanying him. That he
personally/searched the accused. That the seized narcotic
substance came to be recovered from the personal search of the
accused. The he does not know as to whether any other article
like phone, Card or currency came to be recovered from the
accused. That the I.O. brought the balance along with him. That
the I.O. brought the balance from the Police Station. That the
shopkeeper from whom the balance was brought was not present
at the time of weighing the recovered substance. That he has gone
through the NDPS Act. That as per Sec. 50 of the NDPS Act
accused was needed to be given an option as to whether he wants
to be searched through a Magistrate or Gazetted Officer. The Dy.
S. P. as Gazetted office was already with him. That option was
taken from the accused to the effect that he is ready to be
searched through a Gazetted officer. That it has not been
mentioned in Ext. P-8 (Option document) that accused can be
searched through Magistrate also. That there is no document on
the file to the effect that accused was given an option to be
searched through Magistrate. That the I.O. used an empty
cartridge for sealing of the seized property however, no seizure
of the said cartridge was made in his presence. That he has not
seen the said cartridge from the date of occurrence till today. He
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is no aware as to whether any supardnama was made in respectof the said cartridge. That the occurrence took place on a public
place. That no civilian was associated by the I.O. with the
occurrence. He cannot say as to whether the used seal (cartridge)
was sent to FSL along with sample. The I.O. can comment on the
same. That he and the Dy. S.P. went on spot together and also
returned back together. That the recovered substance weighed
514 grams. That the I.O. sealed the same on spot and what
happened thereafter to the seized property, he does not know.
PW-2 SGCT.Javed Ahmad No. 387/B/EXK 974085. The then
posted at Railway Police Station Baramulla, listed as witness to
the occurrence, recovery and seizure and examined on
12.03.2018, deposed in his examination in chief that he knows
the accused present in the court. That the occurrence is of
14.05.2017. That an information was received by the SHO Police
Station Baramulla to the effect that some person/s is coming with
narcotic substance. That SHO directed for getting prepared. That
they proceeded towards veervan road and laid a naka there. That
during checking at naka point accused was witnessed coming on
foot. That as soon as the accused witnessed the police party he
tried to flee away but he was apprehend and was produced before
the Dy. S. P. and SHO. That upon search of the accused a
polythene bag came to be recovered which contained the seized
property. That thereafter the SHO wrote a docket and he took the
same to the police station. That I.O came on spot. That the seized
property was weighed as 514 grams. That the balance was
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brought from a shopkeeper namely Hamid. That I.O. recorded
his signature.
In cross examination the witnesses inter alia deposed that he
searched the accused who had put on his pheran. That he
recovered an envelope from his which contained white colored
powder. That the envelope was of the blue colout. That he handed
over the polythene envelope to the SHO. That the SHO opened
the polythene in his presence which contained the seized
property. That the weighed powder was in the envelope. That he
went to police station with the docket. That the I.O. came on spot
and what he did on spot he does not know. That when we reached
back to the police station, the I.O. got the balance and weighed
the substance. That the seized property was weighted in the room
of the SHO. That he did not bring the balance but that was got by
the Munshi of the P/X. that no further proceedings was
conducted in his presence. That the papers were made by the I.O.
in the police station. That he has not seen the blue colored
polythene in the court today. That he has also not seen the seized
property.
PW-3 Javed Ahmad SPO No. 184, then posted at DPL
Baramulla as witness to the occurrence, recovery, seizure
examined on 29.12.2017 inter alia deposed in his examination in
chief that he knows the accused person present in the court. That
the occurrence took place on 05.05.2017 and on the day of
occurrence he was performing duty in the police station. That an
information was received by the officers to the effect that some
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person is coming from Uri area with contraband narcotic
substance. On receiving this information he along with officers
left and a naka was laid at Veervan road. That Hussain Sahib was
with them. That they started checking of the vehicle and during
checking they witnessed accused who was in a vehicle who tried
to flee away but was apprehended and during his search a
polythene bag was recovered from his possession which was
containing Brown sugar. That thereafter they came back with the
officers in the police station where the accused was interrogated.
That a balzne was brought and the seized property was weighed
as 514 grams Brown sugar. That when the officers prepared the
file they were asked to sign and he too signed on the papers. He
identifies his signature on the recovery memo EXPW-3, the
contents thereof are true and correct. That he also identifies his
signature on the seizure memo EXPW-3/1, the contents thereof
are true and correct.
In the cross examination, the witness deposed that since the
officers received a prior information on the basis of which the
vehicle in which the accused was travelling was stopped. That
Hussain Sahib Sub Inspector was In charge of the naka party.
That he searched the accused on the directions of Hussain Sahib.
That a blue colored polythene bag was recovered from the
possession of the accused which was handed over to SI Hussain
Sahib. That after the recovery of the bag they immediately
returned back to the police station where seized property was
weighed.
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PW-4 Mohammad Irfan Khan SPO No. 425, then posted at
Baramulla, listed as witness to the seizure and examined on 2 nd
of November 2017 inter alia deposed in his examination in chief
that it is the occurrence of 14.05.2017, when officers had
received an information to the effect that somebody is coming
from Sheeri area towards Baramulla with narcotic substance.
That they left from the police station and when they reached
Veervan Baramulla Dy. S.P. was already there who was
conducting search of the vehicles. That during search of the
vehicles one person was seen coming on foot who tried to flee
away on noticing the police party. That he apprehended and a
polythene bag which was containing Brown Sugar was recovered
from the same bag. That their Incharge then prepared a seizure
and informed the police station. I.O. came on spot and prepared
the seizure memo.
In cross examination he inter alia deposed that Rahil Mirchal
Sahib Dy. S. P. was already on spot. That SI Hussain Sahib,
SGCT, Javid Ahmad, SPO Javaid Ahmad, nafri of Dy. S.P. and
he chassed the accused to arrest him who was apprehended near
Pandith Colony. That accused was apprehended by SI Hussain
Sahib. That nothing was recovered during the pocket search of
the accused. That I.O. did not given a notice to the accused before
his search. It is true that men and women were working in the
stone query near the place of occurrence and there remains heavy
movement of vehicles at the place of occurrence besides Pandits
and Beecon people also live near the place of occurrence. That
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no civilian was called on spot. That the accused was apprehended
near Beecon Camp and not near Pandith Colony.
PW-5 Abdul Hamid Gojree ( Shopkeeper); examined on
11.04.2018 deposed in his examination in chief that he does not
know the accused present in the court. That he has not seen him
at any point of time. That he is a shopkeeper and police took a
balance from his shop and also took his signature. That balance
was later on returned to him. That he supardnama regarding the
balance EXPW-5 is true and correct and bears his signature. That
his shop is located adjacent to the police station.
In cross examination witness deposed that he did not give any
statement before the police. He does not know as to why the
police took balance from him. He does not know as to what was
written by the police on EXPW-5.
PW-6 Manzoor Ahmad, Naib Tehsildar/Executive
Magistrate Baramulla: examined on 02.11.2018, inter alia
deposed in his examination in chief that he does not know
accused present in the court. That in the year 2017 police station
Baramulla produced a sealed packet for sampling and resealing.
He weighed the sealed packet which was 514 grams. That brown
sugar was inside the packet out of which he took 4 grams and
resealed the remaining quantity. That 4 grams were sent for FSL
opinion and the remaining quantity was handed over to the police
station. That he knows only about sampling and resealing. He
deposed that he addressed a communication to the FSL EXPW-
6 which bears his signature and the contents whereof are true and
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correct. The witness identified the packet which he handed over
back to the police station after sampling.
In cross examination witness inter alia deposed that police had
made an application to him for sampling purpose. That he has
not seen the said application today in the court. That he
impressed his official seal and a brass seal reading 15/15 for
resealed packet that was handed over to the police. That he has
not seen the said brass seal in the court today. He did not sent his
used seal to the FSL along with sample. That he got a balance
from the shopkeeper for weighing the sample and he does not
know from whom shopkeeper the same was brought.
PW-7 Sheikh Hamid Ullah: the then Assistant Scientific
Officer FSL Srinagar examined on 18th of March, 2019 deposed
in his examination in chief on 16th of May, 2017, he received one
sealed packet from Director FSL Srinagar which was marked as
S-2 enclosed with a cloth bearing Nine (9) intact seals duly sealed
by Executive Magistrate First Class Baramulla vide his letter No.
Teh./Bla./JC/107 dt. 15.05.2017 that had been forwarded for
examination by Dy. S. P. Headquarter District Baramulla vide
his letter No. HQB/FSL/ 2017-1738-39 dt. 15.05.2017 through
SI Ab. Rashid No. 781339/EXK which was assigned to him for
conducting analysis and report. That during examination when
packet S-2 was opened the same was found to contain one small
polythene bag containing of four (4) grams of white colour
material which was given Exhibit No. H-91/17 by him in the
laboratory. That seals were opened in his presence and the
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contents of the exhibit were duly examined by him, the same
remained under his immediate custody until examination was
complete. The contents of the exhibit were subject to chemical,
Microscopic and Chromatographic examination and the result
was arrived at “Di-Acetyle Morphine (Brown Sugar)”. That the
certificate Ext. P-7 is under his seal and signature.
In cross examination witness inter alia deposed that packet
received by him was sealed. He has not put the impression on the
report Ex.P-7. The seal impression was there on the letter of the
Magistrate. He has not seen the original seal till now. The purity
of the drug was nor requested by the Investigating Agency and
he did not determine the same. The without purity test,
percentage of the drug cannot be certified. Cocaine is a narcotic
drug. It is wrong that brown sugar always contain 20% Cocaine
as suggested by the Ld. counsel. There was no specimen seal on
the letter of Dy. S. P.
PW-8 Ruhail Mirchal Dy. S. P: the then Dy. S. P. Headquarter
Baramulla presently posted at CIK Srinagar examined on
10.07.2018 deposed in his examination in chief that he knows the
accused present in the court. It is an occurrence of 14th of May,
2017. That an information was received by police station that
some person is coming towards Baramulla from Uri with some
contraband narcotic drug as such from police station a party left
for Veervan where they put Naka. During this period a person
was coming towards Baramulla from Sheeri who was
apprehended by the party. Basically, the person on seeing the
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police party tried to run away but police apprehended him. The
accused had green colored polythene with him, on seeing that
police became suspicious that this polythene might have some
intoxicating material. That accused was asked to give opinion as
to by whom he wants to get searched. Accuses said that he wants
to be searched by some Gazetted officer, therefore, accused was
brought before him. That polythene was searched where from a
brown sugar like substance was recovered. After this the party
did the rest of the process, in which seizure memo, memo of
recovery, fard-e-ral etc. was prepared. All these memos were
scribed in his presence and he attested them. If the memos under
discussion are shown to him, he can identify them. He identifies
his signature on the Fard-e-ral. The contents are true and correct.
He also indentifies his signature on ExPW3, EXPW3/1 & agrees
to the contents word by word. That the memos are already
exhibited. He identifies his signature on memo of weight. That
the contents are true and correct. It is Exhibited EXTP8/1. He
identifies his signature on memo of arrest, the contents is true
and correct. It is exhibited EXPW8/2. That he has written the
letter sent to FSL, which is a part of file, the contents are true and
correct, he identifies his signature on it. It is exhibited EXTP8/3.
Apart from it initial docket was prepared in his presence and it
was sent to the police station for getting the FIR registered. And
after that IO came from the police station. If the seized substance
is shown to him, he can identify it. P.P sought permission to open
a sealed packet. Permission is granted. Packet is opened in which
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is a blue polythene, in blue polythene is a white polythene in
which it contained the seized substance. That he identifies it and
the same substance was recovered from the accused. He has not
recorded his statement anywhere regarding the case. No further
question was asked.
On cross examination by defense counsel the deposed that he was
informed half an hour before the occurrence that accused is
coming from Uri to Baramulla with some contraband material.
He got information in this regard from police station. That he
went to the place of naka from the police station however, he
went inside the police station. That he was part of the police
party. That his vehicle and party of police station reached the
naka at the same time. The place of naka was selected by the
Incharge naka party. Sub Inspector Mohd Husain was the
Incharge Naka. The accused was identified by Incharge naka
party and not by him. After identifying the accused police party
apprehended the accused. He didn’t himself apprehend the
accused. He does not remember whether the accused was
apprehended by the Incharge Naka party or some other police
official. Fard-e-ral was prepared U/s 50 NDPS Act. It is correct
that on receiving the information it was compulsory for his to
give notice U/s 50 NDPS Act. Under this notice the accused is to
be given option as to whether he would prefer to be searched by
some Gazetted officer or in front of a Magistrate. However, in
Ext.P-8 it is not mentioned that the accused was told that he has
the right to be searched by some Gazetted officer or Magistrate.
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However, it is mentioned in ExPW8 that “in the instant
case……with his free will that he will prefer to be searched by a
Gazetted officer”. It is correct that he was part of the naka police
party because both of us reached the place of occurrence at the
same time. He does not know whether the Incharge police station
has given information about the occurrence in written form to
SSP or not. He was not informed in written form that the accused
is coming from Uri to Baramulla with the contraband narcotic
substance. He didn’t himself search the accused. However, he
was searched in his presence and the seized polythene was also
opened. He does not remember who opened the polythene in his
presence, however, was opened by some person who was part of
the naka party. He does not remember whether it was opened on
his directions or on the directions of Incharge Naka party. The
polythene which was recovered from the accused was of blue
colour. He does not remember whether the polythene was sealed
or not, or whether there was a knot on the polythene or not. After
opening the polythene docket was sent to the police station and
from there IO came to be spot and the polythene was handed over
to him. IO prepared seizure memo in respect of the polythene
which was attested by him. He does not remember what IO did
after the seizure. Arrest Memo was also prepared on the spot. IO
weighed the seized substance on the spot. IO had the balance
(tarazu) however, he does not know whether the balance was
brought from police station or some other place. It is written
correctly in the initial docket that he had also gone to the Veervan
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Naka with the Incharge Naka. It is correct that the Pandit Colony
is stretched at bout 500 ft. along the general road. People come
and go from this Pandith Colony daily. He cannot remember
whether there are shops opposite to Pandith Colony or not. It is
correct that they had put naka in front of the Pandith Colony,
where there are shops as well. He cannot say whether the shops
were closed or not. It is not correct that there is often rush of
people in the Pandith Colony. However, at some times people
come and go from there. It is incorrect that lot of Pandith families
live there, however, only few pandith families live there. He does
not know whether any pandith family lived there at the time of
occurrence or not. He does not know whether any person from
the naka party went to his colony on that day or not. It is correct
that the naka was put at a wide place (public place). He does not
know whether any person from the naka party went to these
shops or not. He personally didn’t get civilian to the spot. He
does not know from where the IO had brought the balance to the
spot neither does he know from whom was it brought. Seizure
memo was endorsed by him. He does not remember the contents
of the recovery memo. Only this much investigation took place
in his presence which he mentioned. IO can speak about the rest
of the investigation. He didn’t himself seal the seized substance.
He does not remember whether the seized blue polythene was
put in another polythene on the place of occurrence and sealed.
He doesn’t remember nor can say which seal was used by the IO.
He didn’t himself take any sample from the seized substance.
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However, IO can say. He cannot say that whether the sample
taken from the seized substance is required to be sealed under
law or not. There is no memo on the court file which would
suggest that some amount was taken from the seized substance
as a sample of which FSL report was procured. His official seal
is used in Memo of recovery which is attested by him. He often
keeps his seal with him, therefore, was with him on the day of
occurrence as well. He has attested ExPW3, ExTP-8, ExTP8/2 at
the place of occurrence. He does not remember whether any
paper in respect to his case was attested by him in the police
station as well or not. PW2 to PW4 were with him. No Magistrate
was with the police party at the time of preparing ExTP-8,
ExPW-3, ExTP-8/1, ExTP-8/2 no Magistrate was with us as such
were prepared in absence of the Magistrate.
PW-9 Farooq Ahmad I.O (SI No. 791554: the then posted at
P/S Baramulla deposed in his examination in chief that he knows
the accused present in the court on 14.05.2017 he was posted as
Sub Inspector at police station Baramulla. He stated that near
Veervan police party had laid Naka under the supervision of SI
Hussain Ahmad, Sub-Inspector. The naka party apprehended a
suspicious man who was walking towards Baramulla. He tried to
run away from the spot, however, was caught by the police, who
as per the procedure and law was then brought in front of
Gazetted Officer to be searched. That during investigation the
Incharge recovered a polythene bag containing brown sugar like
substance from the above-mentioned person who identified
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himself as Mohammad Saleem Khokher S/o Firos Ali Khokhar
R/o Madyaa Kamalkot from whose possession one brown sugar
polythene bag was recovered and sent a written docket to the
police station Baramulla. Thereafter, after registering FIR
79/2017 U/S 8/21 NDPS Act against the accused he left for the
place of occurrence. That on reaching the place of occurrence he
prepared the site plan. Site plan part of the file was shown to him
which he admitted to be true and correct. It is exhibited ExTP-9.
Recovery memo prepared on the spot was given to Incharge and
seizure memo of the brown sugar like substance after weighing
was prepared by the police. The seizure memo ExPW3/1 was
shown to him, it is written and signed by him. Memo of Weight
ExTP8/1, is written and signed by him. The weight of the brown
sugar like substance is 514 grams. However, balance was given
on the supardnama after weighing. He as shown ExPW5, which
is written by him, its contents are true and correct. The accused
was arrested on the spot. Mamo of arrest was prepared by him
which is exhibited ExTP8/2. That during investigation sample of
the brown sugar like substance was sent to FSL Srinagar for
expert opinion. The expert opinion ExPW-6 is part of the file.
The letter through which the sample were sent to FSL, saw it. It
is already exhibited ExPW6. Letter ExPW8/3 is part of the
record, is the same which was sent to Director FSL by Dy. S.P.
Sahib. The statements of witnesses u/s 161 and 164 were
recorded. That during investigation the accused was found guilty
of offense u/s 8/21 NDPS Act and after completion of
20
investigation Challan was produced before the court. The docket
ExPW-1 was shown to him he admitted it as the same which was
received in the station/ thana. It bears his endorsement addressed
to the SHO. That the FIR which is part of the file. It bears his
signature as SHO. Its contents are true and correct. It is marked
as EXTP-9/1. P.P. sought permission to open the packets
(Palandajaat). Permission is granted. The seized substance seen
is the same polythene that was seized by him it is marked as
Mark-F.
In cross examination by defense counsel he stated that on the day
of occurrence the Munshi of the police station concerned was
Head Ct. Mushtaq Ahmad. That on the day of occurrence SHO
of Baramulla police station was on some pre occupied duty or
was on leave. That is why he was there as Incharge. It is the duty
of Munshi to prepare the Rooz Namcha, maintain the record and
all the duties as being given by the SHO. All the parties which
go out of the police station there details are written on the Rooz
Namcha. That the party who left for Veervan their details would
also have been written on the Rooz Namcha. The docket which
was sent by the Incharge Naka party reached to him only. The
person who sent the docket was Hussain Ahmad. FIR was
registered on his directins by the Munshi. It is incorrect that
before this incident information was received by police station in
respect of any business of narcotics run by the accused because
it was a routine naka whereby the accused was apprehended. If
anyone says that the police station or the naka party had the prior
21
information about the accused carrying the contraband narcotic
substance then it is not correct. He kept the investigation with
him as the Incharge Police station, who was at naka duty other
than Hussain Sahab. Firdous Ahad. H. Ct. he does not remember
because it is an occurrence of 3 years ago. Before leaving for the
place of occurrence he recorded it in the Rooz Namcha. He also
does not remember who was with the witness, because it is a
three-year-old occurrence. When he left for the place of
occurrence he did not take any special kit in respect of the NDPS
Act with him, because it wasn’t possible at that time. No civil
person was present at the place of occurrence. However, incharge
naka party had called him because under NDPS Act searching is
done in presence of the Gazetted Officer, therefore, the Incharge
naka party had called the Dy. S.P. on the spot. We call Gazetted
officer only in the case where we are satisfied that some person
is in possession of intoxicating substance and no Magistrate is
available in front of whom the person can be searched. No
Magistrate was brought to the place of occurrence in front of the
witness, why wasn’t Magistrate brought only PW1 can say that.
He himself did the weight. He had taken the balance from one
shopkeeper namely Abdul Hameed Gojree. However, didn’t take
the Abdul Hameed Gojree shopkeeper along. The shop of the
said person from whom we had taken the balance is in Baramulla.
The place of occurrence is around 6 KMs from Baramulla. We
have recorded the statement of the said shopkeeper. He himself
got that statement recorded. He did not put his signature. Who
22
searched the accused witness has no persona knowledge to that
effect. He had not taken any person from FSL to the place of
occurrence from Baramulla. He has not give3n the copy of FIR t
the complainant. When he reached the place of occurrence he
saw the recovered substance in a polythene. The polythene was
closed by hand. The polythene was green in color. Then said
probably was green in color. He made the packet (Palanda) of the
seized substance on the spot. He made the packet of the seized
substance by wrapping it in a cloth. He stitched that packet and
put seal on it. He put a mark on it, thereafter, took it in his
possession. That afterwards he took it to Magistrate and resealed
it. He didn’t take any sample from the seized substance on the
spot. However, went to the Magistrate for getting the sample,
however, didn’t prepare any paper in respect of taking the
sample. He has put empty cartridge of something as seal on the
seal on the packet (Palanda). However, its imprint is on the
seizure memo. He had brought this seal with him from the police
station. He didn’t see that seal today in the court. That seal also
didn’t reach the FSL. He had given that seal to the munshi of
police station on Supardnama. However, didn’t see that
Supardnama today in the court. He had presented the seized
substance before the Magistrate on the second day. He had not
taken the seal to the Magistrate Sahab. Out of the two packets
which were made by him before the Tehsildar Sahab, he sent one
to the FSL and kept another with himself. However, didn’t
prepare any document in this respect. On the same date he took
23
both the packets and kept them in the record room (Mahal Khana)
in respect of which it is registered in the register. That he got the
permission from the head of the police to sent the sample to the
FSL then he took the sample from the record room (mahal
Khana) an sent it to the FSL. The copy of the receipt of the record
room (mahal Khana) has not been kept with the challan. When
was the packet taken to record room (mahal Khana) and when
was it taken out it has been record in the CD. The place of
occurrence is located opposite to the migrant colony on the
national Highway. That the place of occurrence is a public place
which is being used by the general public for ingress and egress
purpose besides heavy movement of vehicular traffic remans
continue on the said road. That a guard is always on duty at the
migrant colony. There are 2 to 3 shops in front of the colony. He
does not know whether there is any hotel or not. He didn’t
associate any civilian with the investigation as witnesses. Today
he was the seized substance in transparent while polythene.
Which was put in the actual polythene. That he found the seized
substance in white polythene. That the packet (Palanda) that he
saw today in court didn’t bear the seal which he put on it at the
time of preparing the packet (Palanda). He has send 4 grams of
the recovered substance to FSL for analysis, so that it can be
analyzed. He had asked in written form to enquire as to how
much narcotic drug is pesent in the 4 grams that are sent to the
FSL, so that a record should be kept in the court in respect of the
purification. Didn’t see the name of the complainant in column 6
24
of the FIR, however, state through police station has been
written. Signature of the complainant has not been taken in the
column 14. In column 15 date has not been scribed while
dispatching the FIR to the court. FIR has ben signed by the
witness and has written his name himself by his own pen on the
FIR. It is correct that he had contacted the police station
concerned of the accused to get information about the accused. It
is correct that from the police station the report was received that
the accused is not connected to any case in the police station. It
is correct that the correction on seizure memo ExTP8/1 was done
by the witness himself. The letter that he had sent to the Dy. S.P.
Sahab he didn’t see that in court today. He has knowledge about
the Section 50 of the NDPS Act. We apply this section when we
have doubt that someone has intoxication drugs with him. As per
the section the opinion is taken from the suspected person as to
in front of whom he should be searched, Magistrate or Gazetted
officer. He has not prepared any memo in respect of the Section
50 because the Incharge police station has not presented any
notice in this respect before the witness. He does not have record
as to when the seized substance was kept in the record room
(mahal Khana) and when it was taken out of it. He does not know
whether the Dy. S.P. Sahab went to Veervan with the naka party
or after the naka party. The seal which was put by the Tehsildar
Sahab on the packet, the imprints of the seal are put on his letter
ExPW6. ExPW6 has its imprints.
25
8. After recording statement of prosecution witnesses, accused/
respondent was explained evidence on record against him in terms of
Section 342 Cr.P.C. The Trial Court heard counsel for both prosecution
and defence. The Trial Court made its opinion vide order dated
04.03.2020 that case was not as one of “No Evidence” in terms of
Section 273 Cr.P.C. The Trial Court, accordingly, directed counsel for
defence to adduce evidence in defence. He submitted that he did not
need to lead any evidence I defence as there was no incriminating
evidence against accused/respondent.
9. Learned counsel for appellant has stated that the Trial Court has not
appreciated the evidence produced by prosecution in its right
perspective; even the Trial Court laid much emphasis on mere
discrepancies while overlooking the incriminating evidence both oral
as well as documentary, which was sufficient to hold respondent-
accused guilty of offence of criminal acts. It is being stated that Trial
Court has discarded entire police evidence and that impugned judgment
of acquittal is passed in perfunctory manner without appreciating
seriousness of offence committed by respondent/ accused. The Trial
Court has not considered all important aspects of the case that trial
against accused was started only after charge was framed against him
by the court on the basis of available material brought by prosecution
before it. The Trial Court has doubted the seizure of contraband from
possession of accused in an erroneous manner, though recovery of
contraband was proved to have been made from the possession of
respondent. In the report of chemical analyst it had been established
beyond any shadow of doubt that substance recovered from possession
26
of accused/respondent was heroin (brown sugar) and the seizure of
brown sugar from respondent has been brushed aside by the Trial Court.
In fact it has been a cased proved against respondent without any
reasonable doubt.
10.The core issue that arises for consideration in this case, is whether while
recording judgment of acquittal, prosecution evidence has been
properly appreciated in its right and proper perspective. Trial Court has
recorded entire evidence in its breadth and length in impugned
judgment as examined herein above as well. The Trial court, as is
apparent from impugned judgment, has, after taking into consideration
entire evidence adduced by prosecution, come to conclusion that
witnesses have substantially contradicted about the fact as to who
searched accused. PW1 to PW3 stated that they searched
accused/respondent to the exclusion of one another. Thus the points
which gave rise to serious doubts and discrepancies that emerged from
prosecution case were that mandatory provisions of NDPS Act
especially Section 42, 50 and 57 had not been followed and complied
with inasmuch as there was no independent witness associated with the
occurrence despite availability and that the witnesses of occurrence
have substantially contradicted in respect of material particulars of the
case, viz. who searched accused, whether accused was coming on foot
or was coming in the vehicle.
11.It has been found by the Trial Court that PW4 in his deposition has
stated that no civil was called despite their availability and that Dy.S.P.
Rahil Mirchal was already present on the spot and that no notice was
given to accused before his search. PW5, namely, Abdul Hamid Gojree
27
stated that he had not given any statement before police and that he does
not know as to why police took balance from him and he does not know
what was written on EXPW-5. PW6, Tehsildar/Executive Magistrate,
a witness to sampling and resealing, has stated that police station
Baramulla approached him with a letter requesting for sampling but the
same was neither shown to him nor was the same on the file, which
doubts the sampling having practically taken place before the said
Magistrate. Even PW8, Dy.S.P., deposed that he did not call any
civilian to be associated with the occurrence. PW10, I.O. of the case,
stated that it is not correct that police station had received a prior
information regarding arrival of any person towards Baramulla along
with contraband narcotic drug. He also stated that he does not know
who conducted search of accused. He did not prepare any papers
regarding sampling process before the Magistrate. So it has been found
that prosecution witnesses have contradicted to the fact as to who
searched accused. As a sequel thereof, it was found by the Trial Court
that two serious doubts and discrepancies emerged from prosecution
case, which are: that mandatory provisions of Section 42, 50 and 56 of
NDPS Act has been observed in breach; and that no independent
witness stands associated with the occurrence despite availability; and
that witnesses of occurrence have substantially contradicted in respect
of material particulars of the case viz. who searched the accused,
whether accused was coming on foot or was coming in the vehicle.
12.It is a trite law that when stringent punishment is provided under an
Act, there should be sound safeguard to ensure that innocent persons
are not harassed or unnecessarily detained by any arbitrary or
28
whimsical actions of police or other authorities. The provisions of a
Statute have to be interpreted inter alia with reference to the intention
of the legislature. It may also be assumed that the legislature would
always intend to ensure just and fair action. There are few who
understand their legal rights and duties or the provisions of law
muchless the provisions of such special law as NDPS Act. It would be
just and proper to hold that accused in these cases must necessarily be
deemed to know his rights given under Section 50 of the Act. Justice
demands that the authorities who have special knowledge of the NDPS
Act must inform the accused of their right under Section 50 of the Act
and their failure to do so must lead to inference that the mandatory
provision has not been complied with. While having concern for the
society, the liberty of individual cannot also be allowed to be lightly
compromised and for this purpose, the intention of legislature must
always be kept in mind. NDPS Act leaves no doubt that legislature
wanted to curb menace of drug addition with a heavy hand by providing
stringent punishment, it was nevertheless conscious of the
constitutional requirement that liberty of individual must not be lightly
curtained and in order to avoid or lessen the possibility of false
implication, it provided sound procedural safeguards.
13.The well settled law is that the function of the Court in a criminal trial
is to find out whether a person arraigned before it as accused is guilty
of offence with which he is charged. For this purpose, the Court scans
the material on record to find out whether there is any credible, reliable
and trustworthy evidence on the basis of which it is possible to convict
accused and to hold that he is guilty of offence with which he is
29
charged. The burden to prove ingredients of the offence is always on
the prosecution and it never shifts to the accused.
14.Testing prosecution case on the touchstone of evidence of witnesses, as
reproduced/discussed herein above, impugned judgment is based on the
law, reason and the logic. It does not call for any interference. The
witnesses, as discussed above, have not been emphatic in stating that
the accused was the architect and the author of the crime. The judicial
precedence reported in the case of Prithipal Singh Vs. State of Punjab,
2012 (1) SCC 10, assumes significance on that count. There it has been
held as follows: –
“This court has consistently held that as a general rule the court
can and may act on the testimony of a single witness provided
he is wholly reliable. There is no legal impediment in acquitting
a person on the sole testimony of a single witness. But if there
are doubts about the testimony, the court will insist on
corroboration. In fact, it is not the number or the quantity, but the
quality that is material. The time-honoured principle is that
evidence has to be weighed and not counted. The test is whether
the evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system has laid emphases on
value, weight and quality of evidence, rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore, open to a
competent court to fully and completely rely on a solitary
witness and record acquittal. Conversely, it may acquit the
accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence…”
15.The law settled in the aforesaid judgement is that as a general rule the
court can and may act on the testimony of a single witness, provided he
is wholly reliable and there is no legal impediment in acquitting a
person on the sole testimony of a single witness, but if there are doubts
about the testimony, the court will insist on corroboration. It is not
number or quantity, but the quality that is material and time-honoured
principle is that the evidence has to be weighed and not counted. So,
the test is whether the evidence has a ring of truth, is cogent, credible
30
and trustworthy or otherwise. The legal system has laid emphases on
value, weight and quality of evidence, rather than on quantity,
multiplicity or plurality of witnesses. Thus, it is open to a competent
court to fully and completely rely on a solitary witness and record the
acquittal and conversely it may acquit the accused in spite of testimony
of several witnesses if it is not satisfied about the quality of the
evidence.
16. Applying the ratio of the law laid down, as aforesaid, to the facts of the
instant case, the statements of witnesses discussed above are not
sufficient to convict the accused. There is infirmity in their statements
that render them weak, fragile, incoherent or improbable.
17. The argument of learned counsel for accused that there are
discrepancies in the statements of witnesses is an argument when tested
on the touchstone of the instant case, shows that prosecution has failed
in discharging its burden to prove that accused has committed the crime
imputed to him. There is, thus, no merit in this appeal. It entails
dismissal and as a consequence of which the same is dismissed and the
judgment of acquittal recorded by the trial court is maintained and
upheld.
18. Copy of this judgement be sent down along with the record, if any,
received.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
09.07.2025
“Imtiyaz”
Whether the order is reportable: Yes/No
Imtiyaz Ul Gani
I attest to the accuracy and
authenticity of this document
10.07.2025 12:00
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