Jammu & Kashmir High Court
Ut Of Jammu & Kashmir Through Sho Police vs Parkash Krishan Watkar S/O Krishan on 12 August, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2025:JKLHC-JMU:2287-DB
Sr. No. 40
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 05.08.2025
Pronounced on: 12.08.2025
Case No. Crl A(AD) No.06/2025
Crl LP No.22/2020
CrlM No.1676/2023
UT of Jammu & Kashmir through SHO Police .....Appellant(s)
Station, Udhampur
Through :- Ms. Saleeqa Sheikh, Advocate vice
Mr. Raman Sharma, AAG.
v/s
1. Parkash Krishan Watkar S/O Krishan .....Respondent(s)
Watkar R/O Marathwada Chal
Committee Hill No.2, Narayan Nagar
Room No.598 P/S Ghat Koper Mumbai-
86.
2. Maqsood Sardar Hussain S/O Sardar
Hussain R/O Kurla Kamani Sunder Bagh
Indra Nagar Jai Ambika P/S Chirag
Nagar Mumbai-70.
Through :- Ms. Kumand Kiran, Advocate for
respondent No.1.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per; Sanjay Parihar-J
CrlM No.1676/2023
1. For the reasons stated in the application coupled with the submissions
advanced by learned counsel for the applicant/appellant at the Bar and
there being no serious objections raised by the opposite counsel, the
same is allowed. Delay in filing the accompanying Acquittal Appeal is
condoned. CrlM No.1676/2023 is disposed of.
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Crl LP No.22/2020
2. At the time of hearing, we were informed that Crl LP No.22/2020 is
still pending, by the medium of which the appellant had sought leave
to file acquittal appeal. Learned counsel for the respondents fairly
conceded that she has no objection in case the finding returned by the
trial Court is decided on merits. Given the submissions made, leave is
granted. Registry to diarize the appeal and the same is admitted to
hearing and taken on board for final disposal. Crl LP No.22/2020 is
disposed of.
Crl A(AD) No.06/2025
3. By this Acquittal Appeal, judgment dated 27.07.2019 drawn by Court
of Additional Sessions Judge, Udhampur is called in question, as in
terms thereof, trial Court has proceeded to acquit the respondents
herein of charge under Sections 8/20 NDPS Act in case FIR
No.286/2011 of Police Station, Udhampur.
4. Briefly stated the admitted facts obtaining in the case are that on
03.11.2011, a police party comprising prosecution witnesses Saif Ali
Shah, Rattan Lal, Noor Ahmed, Sanjay Kumar and Vikas Bali left the
police Station for checking and frisking at Jakhani and accordingly at
11.30 AM a Qualis vehicle bearing registration No.MH03Z-0852
proceeding from Srinagar, suddenly slowed down at the distance of
100 yards from Naka point and two persons de-boarded from moving
vehicle. It raised suspicion and the vehicle was taken into custody. In
the said vehicle including driver, there were four persons who on
asking disclosed their names as Parkash Krishan Watkar (A-1), Abdul
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Rehim Sheikh (A-2), Maqsood Sardar Hussain (A-3), Qayoom Gafoor
Sheikh (A-4). On further questioning, they disclosed the names of
Tariq and Rehan Gafoor Sheikh, as the one who on seeing the police
party had de-boarded from the vehicle. Upon the search of the vehicle
from the rear dickey and under the seat of the vehicle Charas was
recovered. After registration of the FIR, the packets of Charas were
weighed. All the packets were containing 270 no. of small balls of
different size. The actual weight of the Charas was found at 28.6 kgs.
Thereafter, specimen samples of the Charas were drawn from each
charas ball and marked as Mark-A and Mark-A/1 whereas rest of the
Charas was marked as Mark-B & Mark-C.
5. After conclusion of the investigation, it was found that on asking of
accused Rehan Gafoor Sheikh, A-1 hired the aforesaid vehicle from
its owner for journey to Srinagar. The hiring was for a round trip and
the hire was settled at Rs 40,000/-. Rehan Gafoor Sheikh asked A-1 to
drive the vehicle as it would not cost any expense for him. When A-1
went to Rehan Gafoor Sheikh with the vehicle, three other persons
were also with him. He disclosed their names as Abdul Rahim Sheikh,
Maqsood Sardar Hussain and Qayoom Gafoor Sheikh. He stated to A-
1 that all these persons have to go to Srinagar for a tour. Accordingly
five accused persons commenced journey in the said vehicle towards
Srinagar. The vehicle was driven by A-1. On the way they stopped at
Ajmer. On 01.11.2011 five accused persons reached at Khanabal
where a person was waiting whose name was disclosed as Tariq by
Rehan Gafoor Sheikh. All of them went to the house of Tariq at
Khanabal. At that place A-5 took the keys of the vehicle from A-1 and
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asked him to take rest as he had to drive vehicle in the morning. Then
rest of the accused persons on the asking of A-5 concealed the Charas
in the vehicle. On the next day on 02.11.2011 all the five accused
persons boarded the vehicle and proceeded toward Mumbai. Tariq
boarded the vehicle for the journey to Mumbai. When the vehicle
reached near Jakhani Naka, Udhampur, A-5 asked A-1 to slow down
the vehicle and thereafter, Tariq and A-5 de-boarded from moving
vehicle. Police apprehended rest of the four accused persons. It is
alleged that the accused persons were taking Charas to Mumbai for
smuggling. It was found that A-1 had come for the first time and he
had no knowledge about the working of the other accused but upon
reaching at Khanabal, A-1 had got knowledge that accused persons
are smuggling Charas to Mumbai. At that time when accused persons
were concealing the Charas in the vehicle, A-5 told A-1 that they are
concealing some material which is taxable. Accused persons alleged
to have committed offence under Section 8/20 NDPS Act. A challan
was presented against all the accused persons. A-5 and A-6 absconded
and accordingly, they were proceeded under Section 512 Cr.P.C.
Accused persons were charged for the offences under Sections 8/20
NDPS Act. The charges were read over and explained to the accused
persons who pleaded not guilty and claimed trial. In support of the
charges prosecution has examined PW-1 Saif Ali Shah, PW-2 Noor
Ahmed, PW-3 Rattan Lal, PW-4 Balbir Singh, PW-5 Vikas Bali, PW-
6 Kuldeep Singh , PW-7 Qassim Din, PW-8 Kalpakh Dan Lal Teli,
PW-9 Suresh Ram Dass Teli, PW-10 Shabir Ahmed Yeswi Scientific
officer FSL Srinagar, PW-11 Anil Kumar, PW-12 Ved Parkash Naib
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Tehsildar, PW-13 SI. Padam Dev Singh and PW-14 Gian Chand
Sharma Inspector.
6. After closure of evidence, in order to seek explanation from the
accused as regards incriminating evidence lead against them in trial,
they were examined under Section 342 Cr.P.C., wherein they denied
the prosecution case in totality and claimed it to be a case of false
implication. In defence, they examined four witnesses viz. DW
Zahira, DW Sahiba, DW Vinod Subash Wadkar and DW Rashma
Parkash Wadkar.
7. Ms. Saleeqa Sheikh, Advocate appearing vice Raman Sharma, AAG
for the appellant, reiterating the grounds taken in the memo of appeal,
has argued that the trial court has not properly appreciated the
evidence on record in its right perspective. The court below has mis-
appreciated the law on the point. There was enough evidence on
record which was sufficient for convicting the accused/respondents.
With these submissions, learned counsel prayed that the appeal on
hand be allowed and the judgment impugned be set aside.
8. Per contra, learned counsel appearing on behalf of respondent No.1
has vehemently argued that the judgment passed by the trial Court is
well reasoned one based on appreciation of evidence on record.
Learned counsel further submits that the acquittal earned by the
respondent be upheld by this Court and the appeal filed by appellant
deserves dismissal out-rightly.
9. We have gone through the record of the case and have also heard both
the counsels.
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10. It is relevant to state here that at the time of interception of vehicle
No.MH03Z-0852 (Qualis), it allegedly was having six occupants, out
of them two namely Rehan Gafoor Sheikh and Tariq were alleged to
have given slip to the police and escaped, and that lead them being
declared as absconder subsequent to the filing of the charge-sheet.
Whereas co-accused Abdul Rahim, though put to trial, expired during
the currency thereof, thus, proceedings to that extent stood abated.
Whereas the other three accused i.e. the respondents herein came to be
acquitted. In addition thereto, respondent No.3- Qayoom Yaqoob
Sheikh too expired during the currency of this appeal, so proceedings
to that extent also got abated. So the acquittal in question relates to
respondent Nos.1 & 2 only. Respondent No.1 is stated to be the driver
of the vehicle, whereas the other happened to be its occupant.
11. Briefly the evidence of the prosecution is stated in the manner;
PW Saif Ali Shah, who was posted at Police Station Udhampur,
stated that he alongwith other police personnel were on duty for
checking at Jakhani Naka. They intercepted the vehicle at Jakhani
Naka point. Four persons found travelling in the vehicle, who were
apprehended, other two persons had during the process of being
intercepted, fled away. On checking of the vehicle and on opening
seats of the dickey were found containing certain packets. When
opened were in the shape of balls, which smelt like ‘charas’.
Respondent No.1 claimed to be driving the vehicle, others were its
occupant. When the packets were opened, it yielded recovery of
charas weighing 28.6 kilograms, which was seized. He further claims
that seizure was prepared and samples were also drawn from each of
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the balls so recovered. He claims that no efforts were made to trace
the absconders. He claims that respondents did not state anything on
spot about the seizure of the material and claimed they were travelling
as passengers.
PW Noor Ahmed, who was also posted in Police Station Udhampur,
claims that under the supervision of ASI and others, they were at
Jakhani Naka, when they intercepted the vehicle. The occupants were
arrested. He too stated that two of the occupants fled away and four
were taken in custody. The ASI checked the vehicle and from its
Dickey found one secret cabin on either side of the vehicle and in that
cabin polythene bags were containing, apparently a material smelling
like charas. On this ASI prepared a docket. After some time, SI
Padam Dev Singh along with Photographer Dalbir Singh came on spot
and seizure was prepared. The balls were weighed about 100 gms, out
of which 50/50 gm two packets were separately packed. He further
went on to narrate that it was ASI, who stopped the vehicle and
recovered the contraband.
PW Rattan Lal too had stated on the same line. PW Balbir Singh,
who was a photographer from the Crime Branch, too was examined
and claims that he took the photographs of the seized material. PW
Vikas Bali claims to know the accused, who were intercepted in
Jakhani Naka at 11.30 a.m. when they were travelling in vehicle
No.MH03Z-0852 which was coming from Srinagar and slowed down
on seeing the police party and two persons fled away. Four were
taken into custody and he too states that when asked, none of the
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respondents claimed responsibility of the material so seized and they
pleaded ignorance.
PW Qassim Din says that he was Malkhana Incharge of the Police
Station Udhampur when IO Padam Dev Singh produced sealed
packets which were marked as A, A-1, B, C in FIR No.286/11 under
section 8/20 NDPS Act and on 16.11.2011 those packets were taken
by him and sent to FSL Jammu. He had recorded entry in the
Malkhana register at serial No.138. PW Kalpakh Dan Lal Teli
claims to be registered owner of the vehicle and says that on
28.10.2011, A1 Parkash Krishan Watkar (respondent No.1) took his
vehicle for ferrying as he wanted to travel to Srinagar. Later he came
to know that the vehicle was seized. He claims that he only knows
respondent No.1 and has no connection with the other accused
persons. He denied the suggestion that on 20.10.2011 he had gone to
Ajmer Sharief and stayed in a hotel. PW Suresh Ram Dass Teli says
that the vehicle was got released on the superdnama of registered
owner and he is signatory to it. PW Ved Parkash- Naib Tehsildar is
witness to the re-sealing of the contraband.
PW SI Padam Dev Singh, though has supported the prosecution case,
has admitted during cross examination that two accused fled away.
He denied the suggestion that Kalpakh Dhan Lal (owner of vehicle)
was taken in custody by P/S Udhampur. This witness also denied that
Kalpakh was present on spot. He further went on to admit that
respondent no.1 was not a regular driver of the vehicle and had come
to Srinagar for the first time with the vehicle. He also admits that the
vehicle in question was engaged by Rehan Gafoor and it is he who
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told respondent No.1 to go to Srinagar. In the investigation, it has
come that at Khannabal, Tariq received other accused and took them
to his home. That since respondent No.1 had tired, out of long driving,
he slept. The witness further went on to state that at the behest of
Rehan Gafoor, other accused concealed the charas in the vehicle.
When this charas was concealed, at that time respondent No.1 was not
there. As per his investigation, at the time of loading of charas at
Khannabal, respondent No.1 had no knowledge about the loading of
the charas but during the course of travelling he came to know about
the same.
PW Gian Chand Sharma claims to have concluded the part of the
investigation.
12. Learned trial Court, after appreciating the evidence on record, was of
the view that the prosecution had miserably failed in establishing that
accused were in conscious possession of the contraband and that the
case suffers from various material lacunae especially relating to the
collection and preservation of link evidence, as such, proceeded to
record acquittal.
13. We are of the considered view that the finding of acquittal recorded in
favour of the respondents was the only conclusion, which the trial
Court could have derived, based upon the nature of evidence laid
before it. This is because when the vehicle was signaled to stop by
PW-1 Saif Ali Shah, before it could reach to the place where the
police party was standing, it slowed down, as a result two occupants
made their escape. Whereas the other including respondents herein
were intercepted. It is not the case of the prosecution that the
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consignment loaded in the vehicle under beneath the seat was
recovered at the behest of any of the respondents. It is also not proved
that respondent No.1 though was the driver of the vehicle, was in
know of there being consignment of charas in his vehicle. As per the
evidence recorded before the trial Court, PW-13 SI Padam Dev Singh
is categorically found admitting that during disclosure by the co-
accused, it came to fore that when the consignment was being kept or
concealed in the vehicle, the driver (respondent No.1) was not present.
Though the witness hastened to add that after the consignment had
been loaded and the vehicle was on way towards Jammu, when at
some moment of time, respondent No.1 was told by the co-accused
that consignment of charas has been loaded. These aspects, according
to the said witness, have not been stated by any of the witnesses.
During trial, it has been proved from the evidence of the owner of the
vehicle (PW Kalpakh Dhan Lal Teli) that he had given the vehicle to
respondent No.1 for hire so as to undertake round trip of Mumbai to
Srinagar and back. From the statement of the owner, it is not
discernable as to from where the consignment of charas was loaded.
PW-1 claims to have made search of the vehicle and recovered the
contraband. PW-3 Rattan Lal claims that he along with other SPOs
went towards chase of other absconders, which means that PW-3 has
not witnessed the incident of recovery. On the other hand, PW-5
Vikas Bali also a police official, he alone chased the absconding
respondents, which means these witnesses are excluding one and each
other’s presence at the scene of crime. Believing one would exclude
his statement that he witnessed the search of the vehicle inasmuch as
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vehicle was slowed down at some considerable distance from the naka
point. PW-5 Vikas Bali is found stating that he has witnessed such
incident number of times and the trial Court was of the view that he is
in the nature of a stock witness, whose testimony is to be examined
cautiously.
14. The Executive Magistrate and Investigating Officer said to have been
brought at the site of recovery, is a lateral aspect because what PW
Saif Ali Shah is stating that he had recovered the consignment at first.
The trial Court has noted that the said recovery has not been got
witnessed from any independent witness. We agree with it because
given the consignment of charas and also that as many as four persons
were found travelling in the vehicle when the charas was recovered,
the prosecution was required to prove by way of cogent evidence that
all the four had clear knowledge of their being existence of charas
under beneath the seat of the vehicle. Being a Qualis vehcle is stated
to be 5 + capacity vehicle and it is not clear as to from under beneath
which seat the consignment was recovered. In that background, once
the prosecution has failed to introduce clinching evidence against the
respondents showing their involvement in the act of conscious
possession of charas, no presumption could be drawn against them
that one or all of them were in know of the charas having been loaded
and kept concealed in the vehicle. The respondents were not facing
charge of criminal conspiracy punishable under Section 29 of the
NDPS Act. The investigating officer in his statement has deposed that
respondent No.1 was not regular driver of the vehicle, rather had been
engaged only for the round trip. Once the investigating officer had
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found that respondent No.1 had no prior knowledge of concealment of
charas, then a case against him should not have been filed at all and
the IO should have proceeded to unearth the sequence of events
leading to the concealment of charas in the vehicle.
15. What Section 8 of the NDPS Act speaks of unauthorized possession of
contraband, which is punishable as an offence under Section 20, so
conscious possession is sine qua non for commission of such an
offence. Which in the given case, the prosecution had miserably
failed. The trial Court has touched with other aspects of the case as
well and found that the prosecution case suffered from inherent
contradictions and defects, which make it weak to sustain in the court
of law.
16. The trial Court has found that it has not come in the evidence of any
of the prosecution witnesses that the respondents, who were facing
trial, were sitting on the seat beneath which the alleged contraband
was recovered. In absence of positive evidence, it cannot be inferred
that respondents were sitting on the seat and had any kind of dominion
over the site from where the recovery was made. It is admitted case
that as the vehicle approached towards the ‘naka point’ and was to be
intercepted by them, that it slowed down leading to two of the
occupants fleeing away, which raises the probability that had the
present respondents been also in knowledge of the charas is loaded in
the vehicle, they too would have made an effort to escape from the
clutches of law as is the case with two other accused, who were stated
to be absconders.
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17. For what has been stated above, we concur with the finding of
acquittal recorded by the trial Court and see no merit in the appeal,
which is dismissed.
( Sanjay Parihar ) ( Sanjeev Kumar )
Judge Judge
JAMMU
12.08.2025
Narinder
Whether order is speaking? Yes
Whether order is speaking? Yes