Jammu & Kashmir High Court
Union Territory Of Jammu And Kashmir vs Farman Ali on 3 January, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
IN HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CrlA (AD) No. 42/2022
Reserved on : 08.11.2024
Pronounced on: 03.01.2025
Union Territory of Jammu and Kashmir ...Appellant
through Station House Officer, Police Station
Kathua.
Through: Mr. Ravinder Gupta, AAG.
Vs.
1. Farman Ali ...Respondent(s)
S/O Bari Din
R/O Bhaideen Pattan, Tehsil and
District Kathua.
2. Johnson Alias Raki
S/O. Bodh Raj
R/O. Ward No. 10, District Kathua.
Through: Mr. Arun Dev Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE.
JUDGMENT
Mohd Yousuf Wani -J
01. Delay condoned and leave to file appeal granted vide Order dated 11 th
October, 2022.
02. Impugned in the instant appeal filed by the Union Territory of Jammu and
Kashmir is the judgment of acquittal dated 8th October, 20015, passed by
the court of learned Additional Sessions Judge, Kathua, [hereinafter
referred to as the “trial court” for short] while culminating trial on a
criminal case bearing FIR No. 413/2013 of P/S Kathua, and titled as State
vs. Farman Ali and Anr bearing File No. 31/Session instituted on 4th
January, 2014.
CrlA (AD) No. 42/2022
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3. The impugned judgment has been assailed by the appellant-Union
Territory of J&K on the main grounds that case FIR No. 413/2013 came
to be registered with the Police Station, Kathua, pursuant to the recovery
of 10,000 capsules of SPM-PRX from the respondents/accused [6000
capsules from R-1 and 4000 capsules from R-2] on 5th November, 2013 at
5:30 P.M., when they came to be apprehended by a Police Patrolling Party
of Police Post Industrial Estate, Kathua, who failed to account for the
possession of the same. That the seizure and sampling of the recovered
contraband substance was done as per the procedure and the statements of
the witnesses also came to be recorded. That the commission of offences
punishable under Sections 8/21/22 of Narcotic Drugs and Psychotropic
Substances Act, 1985,[hereinafter referred to as “the NDPS Act” for
short] came to be established against the respondents during the
investigation which led to the presentation of the final report/challan
before the learned trial court. That the witnesses examined by prosecution
at the trial proved the recovery and seizure of the contraband substance
against the respondents, but the learned trial court did not appreciate and
weigh the prosecution evidence in the right perspective. That the learned
trial court has given weightage to some minor contradictions and has
brushed aside the evidence adduced at the trial by the prosecution. That
the learned trial court has mis-appreciated the law with respect to routine
search and applicability of Sections 42 and 50 of the NDPS Act and the
evidence on record. That there is enough evidence on record which
warrants conviction and sentence of respondents/accused for commission
of the offences under Section 8/21/22 of the NDPS Act.
CrlA (AD) No. 42/2022
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4. The facts of the prosecution case, which are relevant for the disposal of
this appeal, are that on 5th November, 2013, at 5:30 P.M., a police party of
Police Post, Industrial Estate, Kathua, comprising of Head Constable
Daleep Singh No. 526, Constable Manjeeb Kumar, Constable Naseeb
Chand and SPO Ajay Kumar No. 1355, while being on patrolling and
upon reaching at Magger Khad witnessed two persons coming from
Punjab side who were carrying bag and packet in their hands. That both
the persons upon seeing the police party tried to escape under suspicious
circumstances, but the police party chased and caught hold of them. That
they disclosed their names as Farhan Ali S/O Bari Din R/O Bhaideen
Pattan, Tehsil and District Kathua and Johnson Alias Raki S/O. Bodh Raj
R/O. Ward No. 10, District Kathua (the respondents/accused). That upon
search, 6000 capsules of SPM-PRX came to be recovered from the bag
carried by the respondent no. 1 when 4000 of such capsules came to be
recovered from the polythene packet that was carried by the respondent
no. 2 in his hand. That the respondents failed to account for those capsules
which they had illegally brought from Punjab for sale in the Kathua town.
That a docket was prepared on the spot and sent through Constable
Manjeeb Kumar to the Police Station, Kathua, for registration of the FIR.
That FIR No. 413/2013 came to be registered with the Police Station,
Kathua, against the respondents in respect of the incident. That the
investigation in the case was entrusted to SI Rajesh Gautam, the then
Officer Incharge of Police Post, Industrial Estate, Hatli. That the
Investigating Officer reached on spot and prepared the site plan. That the
Investigating Officer also brought into the formal seizure the contraband
capsules that had been recovered from the respondents. That 20 capsules
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from each i.e., bag and packet were separately packed and sealed for FSL
opinion with a finger ring impression. That the capsules, seized from the
possession of the respondent no. 1, were marked as ‘A’ & ‘A1’, when the
capsules seized from the respondent no. 2 were, accordingly, marked as
‘B’ and ‘B1’. That the statements of witnesses in terms of Section 161 of
the Jammu and Kashmir Code of Criminal Procedure SVT 1908, [already
repealed and replaced but applicable in the case and hereinafter referred
to as “the Code”] came to be recorded. That the separately packed and
sealed 20 number of capsules from each of the bag and the packet were
got resealed through Executive Magistrate 1st Class. That the samples
were then deposited under the authority letter of the Executive Magistrate
with FSL, Jammu, against the receipt dated 9th November, 2013 for
opinion. That during investigation of the case, the Investigating Officer,
having regard to the recovery and seizure of contraband capsules and the
statements of witnesses recorded, was satisfied that the respondents had
brought the contraband capsules from Punjab for sale thereof to the young
generation in Kathua town. That the total weight of the recovered capsules
was found 6 Kg and 70 Gms, thus, falling within the commercial quantity.
That the investigation of the case was concluded in the form of
challan/final report that came to be presented before the learned trial court.
5. The perusal of the record of the file reveals that the learned trial court
vide its order dated 15th January, 2014 framed formal charges against the
respondents under Sections 8/21/22 of NDPS Act, who pleaded not guilty
and, accordingly, the prosecution was directed to lead evidence in support
of its case. The prosecution at the trial produced and examined eight
witnesses i.e., PWs’ 1 to 7 and 9. After closure of the prosecution
CrlA (AD) No. 42/2022
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evidence, the statements of the respondents under Section 342 of the Code
came to be recorded by the learned trial court on 2 nd February, 2015. The
learned trial court after finding that a case of “No Evidence” is not made
out in the circumstances of the case, directed the respondents to produce
witnesses in their defense, if they so choose. The accused persons placed
on record some Newspaper cuttings by way of documentary evidence, but
did not opt to lead any direct evidence in their defense.
6. We have heard learned counsel for both the parties.
7. The learned counsel appearing for the Union Territory submitted that a
prima facie case is made out for setting aside of judgment of acquittal and
for conviction and sentence of the respondents as the recovery and seizure
of 10000 capsules of spasmo proxyvon containing tramadol – a
psychotropic substances as a constituent was fully proved at the trial
through the cogent evidence of PWs’ 1 to 7 and 9 examined at the trial.
He argued that the learned trial court has not appreciated the prosecution
evidence in the correct perspective and has rather given undue weightage
to some minor contradictions. That the respondents/accused failed to
account for the possession of seized quantity of the spasmo proxyvon
capsules containing tramadol and, as such, the provisions of Sections 35
and 54 of NDPS Act which respectively impute the presumption of
culpable mental state and the commission of offences against the accused,
are attracted fully in the case.
The learned counsel for the appellant very vehemently contended
that the respondents failed to account for the huge quantity of the spasmo
proxyvon capsules and did not lead any evidence in their defence despite
being offered by the learned trial court to rebut the presumption. He
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further contended that all the material particulars of the prosecution case
especially the recovery, seizure and sampling of the contraband
substances were fully established at the trial through the evidence of PWs’
1 to 7 and 9.
8. Per contra, the learned counsel for the respondents submitted that the
prosecution has miserably failed at the trial to prove the guilt of the
respondents at all and not to speak of beyond any shadow of doubt. He
submitted that the respondents were falsely and frivolously implicated in
case FIR by the police concerned who had previously in the late
September seized some contraband substance in the area of its jurisdiction
and had to account for the arrest of the persons involved in the same
before the public. He submitted that there are fatal contradictions in the
prosecution case as regards the material particulars which give lie to the
prosecution case. The learned counsel submitted that the prosecution
witnesses themselves have brought on record fatal contradictions as
regards the time of occurrence, the sending of the docket from the spot for
registration of FIR and the author of recording of statements and other
memos on spot. He contended that the manner, in which, the case was
dealt with in the name of investigation, presents an astonishing situation.
The learned counsel further contended that the police concerned had some
days before the alleged incident, stacked to have seized a huge quantity of
narcotic drugs from some place within its jurisdiction and to justify its
success in nabbing the guilty persons, conceived a drama in the form of
the prosecution case. He contended that the police concerned had got the
photos of the respondents published in the Newspaper as the guilty
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persons. He contended that the respondents were arrested on the incident
day from their homes and nothing was recovered from them as alleged.
The learned defense counsel further contended that the appellant
cannot avail the advantage of presumptions under Sections 35 and 54 of
the NDPS Act because of the failure of the prosecution to prove the
foundational facts of its case at the trial. He further contended that NDPS
Act provides for severe punishment for the offences under the Act and, as
such, at the same time has provided for the necessary safeguards in the
shape of mandatory procedural requirements to be followed during the
investigation of the case. The proof needed in the cases under NDPS Act
should be of high standard. Accordingly, the learned counsel for the
respondents prayed for dismissal of the appeal.
9. We have perused the record of the instant appeal especially the impugned
judgment. We have also accorded an in-depth consideration to the rival
arguments advanced on both the sides.
10. Keeping in view the aforementioned perusal and consideration in the light
of law on the subject, we are of the considered opinion that the impugned
judgment of acquittal does not suffer from any illegality or perversity.
11.It is an accepted principle of Criminal Jurisprudence that an accused
person is presumed to be innocent till he is proved guilty and the burden
of proving everything essential to establish of his/her guilt lies on the
prosecution/State. There must be a clear and unequivocal proof of,
‘corpus delicti’. The prosecution should stand or fall on its own legs and it
cannot derive any benefit from the weaknesses of the defense. Suspicion
however, strong cannot take the place of legal proof. There lies a long
mental distance between” may be true” and “must be true”. The vital
CrlA (AD) No. 42/2022
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distinction between conjectures and sure conclusions needs to be
maintained in criminal trials.
12. The prosecution at the trial of the case examined eight witnesses i.e.,
PWs’ 1 to 7 and 9. There appear fatal discrepancies and contradictions in
the statements of the prosecution witnesses examined at the trial in respect
of material particulars of the case especially with regard to time of
occurrence, recovery and seizure of contraband substance, manner of
investigation, resealing, sampling and recording of statements of the
witnesses during the investigation. The investigation in the case appears to
have been conducted in a casual and cavalier manner while observing the
mandatory provisions of the NDPS Act in breach.
13. The first and foremost flaw and contradiction in the prosecution case is as
regards the time of occurrence. Head constable, Daleep Singh, who
happens to be the Incharge of the Patrolling Party, as per the prosecution
case, has deposed at the trial that the occurrence took place at 5:30 A.M.
He has further, inter alia, deposed in his statement at the trial that it was a
morning time and movement of people was less. This Court is conscious
of the fact that sometimes there can be an inadvertent mistake in suffixing
A.M. instead of P.M. to a particular hour of the day. The PW-1 Daleep
Singh being a very important witness from prosecution pointed view as
being the head of the Patrolling party and the complainant in the case, by
further deposing in his statement at the trial that “it was a morning time
and movement of the people was less” has clearly mentioned that the
occurrence took place at 5:30 A.M. (Morning). The further witnesses,
however, deposed at the trial during their statements that occurrence took
CrlA (AD) No. 42/2022
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place at 5:30 P.M. The case of the prosecution is that incident took place
in the evening hour at 5 :30 P.M.
The statement of PW Head constable Daleep Singh to the effect that
the occurrence took place at 5:30 A.M. with further clear explanation by
referring to morning time, makes the prosecution story highly doubtful
and justifies probability of the prosecution case being fabricated as alleged
by the defense.
14. The statement of PW-1, Head Constable Daleep Singh has also given rise
to a fatal contradiction in respect of author of the docket which is alleged
to have been written and sent from the spot through Constable Manjeeb
Kumar. The said Head Constable Daleep Singh in his statement at the
trial, inter alia, deposed that he prepared a docket and sent the same to the
Police Station Kathua through Constable Majeeb Kumar for registration of
FIR. The same important witness in another breath in his statement says
that ASI Sher Ali wrote the docket who reached on spot after he informed
the Incharge Police Post telephonically. The said witness also deposed that
seizure memo and other documents were also prepared by the said Sher
Ali, who was the Munshi of the Police Post concerned and not the
Investigating Officer. He further deposed that it is true that all the papers
have been written by Sher Ali.
15. PW-Naseeb Chand gave a contradictory statement by, inter alia, deposing
at the trial that the ASI Sher Ali was posted at Police Post but he was not
seen on the spot. He further deposed that it is not known to him that all the
seizure memos were prepared by Sher Ali. He deposed that seizure memo
was prepared by Rajesh Gautam, ASI.
CrlA (AD) No. 42/2022
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16. PW-Kuldeep Kumar in his statement at the trail , inter alia, deposed that
Officer Incharge of the Police Post, Hartli, namely, Rajesh Gautam
handed over to him two packets containing samples of SPM-PRX bearing
Mark ‘A’ and ‘B’ along with a letter for taking the same to FSL Jammu,
who, accordingly, deposited the packets at FSL Jammu against the receipt.
17. PW-6, Baldev Singh, inter alia, deposed in his cross examination, at the
trial that he was posted as Moharer at Police Post, Industrial Estate, Hatli
Morh, Kathua, under Sh Rajesh Gautam as Officer Incharge of the Police
Post. That the Officer Incharge of the Police Post handed over four sealed
packets to him on 5th November, 2013 at 8:30 P.M. and, accordingly, the
entry was made in the Register. That the same was kept for safe custody in
the Malkahana on 7th November, 2013, on the instructions of the Officer
Incharge of the post. He further deposed that the sealed packets were
handed over to Head Constable Mohd Saleem No. 642 for purpose of
resealing, who was deputed to the office of Tehsildar Executive
Magistrate 1st Class. The said HC Mohd Saleem informed on the same day
that the packets were not resealed on the said day. The witness further
deposed at the trial that on 8th November, 2013, those packets were
handed over to Mohinder Singh Head Constable for the purpose of
resealing through Executive Magistrate 1st Class which were got resealed
and a letter was sent to FSL along with the sample through Kuldeeps
Kumar ASI.
18. PW- Jai Singh also examined at the trial by the prosecution, inter alia,
deposed that he was posted as Naib Tehsildar, Kathua, and SI Rajesh
Kotwal of Police Post, Hatli brought two packets bearing Mark ‘A’ and
‘B’ and he sealed both the packets by putting two seals on the said marked
CrlA (AD) No. 42/2022
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packets besides keeping a seal impression on a separate paper under his
attestation. He further deposed that he does not know what was inside the
sealed packets.
PW-Baldev Singh and the Jai Singh have given lie to the
prosecution version of the case to the effect that sampling was done as per
the procedure. PW-6, Baldev Singh says at the trial that firstly Mohd
Saleem was handed over the sealed sample packets for taking the same to
the Executive Magistrate Office i.e. PW-7 who brings back the samples on
the same day and thereafter Head Constable Mohinder Singh, takes the
said sample packets on 8th November, 2013 to the office of the PW-7 and
gets the same sealed.
19. PW-7, Executive Magistrate has himself deposed at the trial that he
impressed his seal on the sample packet without knowing as to what was
inside them.
Thus, it is clear from the prosecution case that the sampling of the
seized psychotropic substances i.e., spasmo proxyvon tablets was not done
as per the procedure. The same is a fatal flaw in the prosecution version of
the case.
It is an admitted case of the prosecution that 20 numbers of capsules
were taken from each the bag and packet and sealed in separate plandas
bearing Mark ‘A’ and ‘B’. It was none of the job of even the Investigating
Officer to separately seize and pack some of the recovered quantity for
sampling purpose. As per the procedure, the seized material, as a whole,
was to be taken before a Magistrate and it was his affair to reopen the
seized material and take the sample from the same and then to reseal the
packets separately.
CrlA (AD) No. 42/2022
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PW-7, Jai Singh, Executive Magistrate, Kathua has deposed that SI,
Rajesh Kotwal of Police Post, Hatli brought two packets bearing Mark ‘A’
& ‘B’ before him for sampling purpose. However, his statement to that
effect is nullified by the PW-6 Baldev Singh, who deposed that the sample
packets A&B were first handed over to HC Mohd Saleem and then to HC
Mohinder Singh for being taken before the PW-7, Jai Singh.
Any way it has been proved at the trial that the Investigating Officer
PW-9 Rajesh Gotam SI did not personally take the packets A & B before
the PW-7 Jai Singh for sampling purpose. It is equally astonishing that
PW-7 Jai Singh deposed at the trial that two packets bearing Mark ‘A’ and
‘B’ were brought before him, who without opening the same impressed
his seal thereon and also impressed the same seal on a separate paper
under his attestation. This destroys the whole prosecution case.
20. Sampling and resealing of the seized narcotic drugs or psychotropic
substances or of some manufacture drug containing the aforesaid
drug/substances in mixture is an important step/phase in the investigation
process in NDPS cases. It is not appropriate even for the Investigating
Officer to separately seize some quantity of the recovered drug/substances
as sample but the proper procedure is that the Investigating Officer has to
seize the recovered drug/substances or the manufactured drug containing
the aforesaid substances in one pack/palanda or more packs/palandas
having regard to the quantity of the recovered contraband and to produce
the same before a competent officer especially an Executive Magistrate
for sampling purpose who shall break the packets /palandas in comparison
of the relevant memos and then to take the sample there from and
thereafter reseal back all the packets under his seal and signature. As per
CrlA (AD) No. 42/2022
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the provisions of Section 52 and 52-A of the NDPS Act, once any
contraband is seized, it shall be immediately produced before the
competent Magistrate for disposal and sampling. There cannot be two
provisions for drawing of samples, one, whether the Investigating Officer
draws the samples on spot and the other one taken in presence of the
Magistrate.
21. The law relating to the seizure and sampling of the narcotic drugs and
psychotropic substances is provided under Section 52 A of the NDPS Act.
It is profitable to reproduce the Section 52-A of the NDPS Act for ready
reference.
“Section 52A. Disposal of seized narcotic drugs and psychotropic
substances.– (1) The Central Government may, having regard to
the hazardous nature, vulnerability to theft, substitution, constraint
of proper storage space or any other relevant consideration, in
respect of any narcotic drugs, psychotropic substances, controlled
substances or conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances, controlled
substances or conveyance or class of narcotic drugs, class of
psychotropic substances, class of controlled substances or
conveyances, which shall, as soon as may be after their seizure, be
disposed of by such officer and in such manner as that Government
may, from time to time, determine after following the procedure
hereinafter specified.
(2) Where any [narcotic drugs, psychotropic substances, controlled
3substances or conveyances] has been seized and forwarded to the
officer-in-charge of the nearest police station or to the officer
empowered under section 53, the officer referred to in sub-section
(1) shall prepare an inventory of such [narcotic
3
drugs,
psychotropic substances, controlled substances or conveyances]
containing such details relating to their description, quality,
quantity, mode of packing, marks, numbers or such other
identifying particulars of the [narcotic drugs, psychotropic
3substances, controlled substances] or conveyances or the packing
in which they are packed, country of origin and other particulars as
the officer referred to in sub-section (1) may consider relevant toCrlA (AD) No. 42/2022
14the identity of the [narcotic drugs, psychotropic substances,
3controlled substances or conveyances] in any proceedings under
this Act and make an application, to any Magistrate for the purpose
of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of [such
4drugs, substances or conveyances] and certifying such photographs
as true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such magistrate and certifying the
correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of
1974), every court trying an offence under this Act, shall treat the
inventory, the photographs of [narcotic drugs, psychotropic
5substances, controlled substances or conveyances] and any list of
samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such offence.”
22. The Hon’ble Supreme Court in Union of India vs. Mohan Lal and Anr
(2016) 3 Supreme Court Cases 379, inter alia, discussed the law as regards
the seizure and sampling of the narcotic drugs and psychotropic
substances.
It is felt appropriate to reproduce the paras 15, 16, 17 and 18 of the
Judgment for the sake of convenience.
“15. It is manifest from Section 52A (2)(c) (supra) that upon
seizure of the contraband the same has to be forwarded either to the
officer in-charge of the nearest police station or to the officer
empowered under Section 53 who shall prepare an inventory as
stipulated in the said provision and make an application to the
Magistrate for purposes of (a) certifying the correctness of the
inventory (b) certifying photographs of such drugs or substances takenCrlA (AD) No. 42/2022
15before the Magistrate as true and (c) to draw representative samples
in the presence of the Magistrate and certifying the correctness of the
list of samples so drawn.
16. Sub-section (3) of Section 52- A requires that the Magistrate
shall as soon as may be allow the application. This implies that no
sooner the seizure is effected and the contraband forwarded to the
officer in charge of the Police Station or the officer empowered, the
officer concerned is in law duty bound to approach the Magistrate for
the purposes mentioned above including grant of permission to draw
representative samples in his presence, which samples will then be
enlisted and the correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing of samples has
to be in the presence and under the supervision of the Magistrate and
the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which,
more often than not, takes place in the absence of the Magistrate does
not in the above scheme of things arise. This is so especially when
according to Section 52-A(4) of the Act, samples drawn and certified
by the Magistrate in compliance with sub-section (2) and (3) of Section
52-A above constitute primary evidence for the purpose of the trial.
Suffice it to say that there is no provision in the Act that mandates
taking of samples at the time of seizure. That is perhaps why none of
the States claim to be taking samples at the time of seizure.
18. Be that as it may, a conflict between the statutory provision
governing taking of samples and the standing order issued by the
Central Government is evident when the two are placed in
juxtaposition. There is no gainsaid that such a conflict shall have to be
resolved in favour of the statute on first principles of interpretation but
the continuance of the statutory notification in its present form is
bound to create confusion in the minds of the authorities concerned
instead of helping them in the discharge of their duties. The Central
Government would, therefore, do well, to re-examine the matter and
take suitable steps in the above direction.
The Hon’ble Apex Court has followed the law laid down in Mohan
Lal‘s case supra in Mangilal Vs. the State of Madhya Pradesh (2023 Live
Law (SC) 549 and Yusuf @ Asif vs. State 2023 Live Law (SC) 890.
23. In the case in hand, what appears to have been done in the name of
sampling, is that firstly, 20 capsules taken from each of the bag and packet
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16
recovered from the respondents, were seized in two packets marked as ‘A’
& ‘B’ as being samples. Secondly, the said packets bearing Mark A & B
are reported to have been presented before the Executive Magistrate by
some police personnel not being the Investigating Officer of the case and
the concerned Magistrate, as per the prosecution case itself simply affixed
his seal on the said marked packets without reopening the same, enlisting
the samples and certifying the correctness of the same. The said procedure
appears to have been adopted in violation of the provisions of Section 52-
A of the NDPS Act.
24. PW-9, Rajesh Gautam, SI, inter alia, deposed at the trial that site plan and
search memo were got prepared through his Munshi. He also deposed that
firstly he sent HC Mohd Saleem then HC Mohinder Singh for sampling of
the seized material and then letter was obtained from the DSP on 9 th
November, 2013. No memo or any letter of the Executive Magistrate
concerned was either referred to or proved at the trial of the case in respect
of sampling.
25. It was established at the trial that undue and unexplained delay has been
occasioned in sending the samples to the laboratory for expert opinion. It
is a settled legal position that undue and unexplained delay in sending the
samples to the FSL doubts the genuineness of the prosecution case. As per
the standing instructions issued under No. 1/88 dated 15 th March, 1988, by
the Narcotic Control Bureau New Delhi, the sample is needed to be sent to
the FSL either through insured post or through a special messenger at an
earliest and latest within 72 hours of the seizure.
26. No independent civilian witness has been associated with the occurrence.
The mandatory provisions under Sections 52 and 57 of the NDPS Act
CrlA (AD) No. 42/2022
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which were applicable to the case have been observed in breach. As per
the mandatory provisions of Section 52 (1) read with Section 43 of the
Act, the respondents/accused were needed to be informed of the grounds
of their arrest which has not been done. The report regarding the arrest of
the respondents and the seizure of the alleged psychotropic substance
from them which was needed to be sent to the immediate superior officer
by the SHO, Rajouri within 48 hours as per the Section 57 of the Act, has
also not been so sent in the case. The non-compliance of the mandatory
requirements as per the provisions of Sections 52 and 57 of the Act, in the
facts and circumstances of the case doubts the genuineness of the
prosecution version of the case. The provisions which stand incorporated
under sections 52 (1) and 57 of the Act to be followed after search and
arrest of the accused are mandatory in character. The reason is that the
right to be informed about the grounds of arrest guaranteed by section 52
(1) and the requirement regarding making of full report regarding arrest
and seizure to the immediate superior officer within 48 hours under
section 57 of the Act confer a valuable right on the accused. When
informed about the grounds of arrest at the earliest, the accused becomes
aware at the very outset about the probable charge against him, so as to
allow him to prepare his defense. Similarly the provisions requiring the
person making arrest and seizure to make a full report to his immediate
superior within 48 hours, brings into existence a document which can be
used for the purpose of cross-examination in defense. The making of
reports within 72 hours as per the provisions of section 42 (2) and within
48 hours as per section 57 respectively will also bring to an end the
possibility of antedating or improving the prosecution case/version. The
CrlA (AD) No. 42/2022
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non-compliance of the mandatory provisions of Sections 52 and 57 of the
Act would be an infirmity bound to reflect on the credibility of the
prosecution.
27. It is very needful to mention that PW-9 Rajesh Gautam deposed in his
examination at the trial that on 5th November, 2013, he received the copy
of FIR from Police Station Kathuaat 7: 00 P.M., whereafter he left for the
spot. The other witness have also given the account of the proceedings in
terms of the time prior to 7:00 P.M. which leads to an inference that the
investigation in the case was started prior to the registration of the FIR.
28.In the light of the total failure of the prosecution to prove the seizure of
the alleged drug containing tramadol a psychotropic substance, as a
constituent through cogent, uncontradictory, and trustworthy evidence, the
presumptions under Sections 35 and 45 of the Act loose significance.
The presumption under Sections 35 and 54 of the Act is never
absolute but rebuttable presumption. The initial burden is always on the
prosecution to establish a prima facie case against the accused, only where
after burden will shift to the accused.
Admittedly section 54 of the Act provides for a reversal burden of
proof upon accused, contrary to normal rule of criminal jurisprudence for
presumption of innocence unless proved guilty. This however, does not
dispense with the requirement of the prosecution to establish a prima facie
case in the backdrop of sufficient, cogent and clear evidence with
observance of mandatory provisions under sections 42, 50, 52 and 57of the
Act, where after the accused has to be called to account for his possession.
The provisions of sections 35 and 54 of the Act are in the form of an
CrlA (AD) No. 42/2022
19
additional advantage to the prosecution and the factum of alleged
possession does not ipso facto make the accused liable.
The Investigating agency can take the benefit of presumptions
under sections 35 and 54 of the Act, for finalization of the investigation
process, and even for purposes of bail, the prosecution can rely upon the
said presumptive provisions. But for the purposes of the trial, the accused
can be called to account for his alleged possession of the narcotic drugs as
being, “not conscious” only after the prosecution proves the foundational
facts of its case beyond any doubt.
The extent of the applicability and the relevance of the
presumptions under sections 35 and 54 of the Act came for consideration
before the Hon’ble Supreme Court in “Noor Aga vs. State of Punjab and
anr (2008) 16 SCC 417″ decided on 9th July, 2008. It is appropriate to
reproduce the relevant extracts from the judgment as under:-
“18. ………The provisions of the Act and the
punishment prescribed therein being indisputably stringent
flowing from elements such as a heightened standard for bail,
absence of any provision for remissions, specific provisions
for grant of minimum sentence, enabling provisions granting
power to the Court to impose fine of more than maximum
punishment of Rs.2,00,000/- as also the presumption of guilt
emerging from possession of Narcotic Drugs and
Psychotropic substances, the extent of burden to prove the
foundational facts on the prosecution, i.e., `proof beyond all
reasonable doubt’ would be more onerous. ……
Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on the
part of the accused as also place burden of proof in this
behalf on the accused; but a bare perusal the said provision
would clearly show that presumption would operate in the
trial of the accused only in the event the circumstances
contained therein are fully satisfied. An initial burden exists
upon the prosecution and only when it stands satisfied, the
legal burden would shift. Even then, the standard of proof
required for the accused to prove his innocence is not as high
as that of the prosecution. Whereas the standard of proof
required to prove the guilt of accused on the prosecution is
“beyond all reasonable doubt” but it is `preponderance ofCrlA (AD) No. 42/2022
20probability’ on the accused. If the prosecution fails to prove
the foundational facts so as to attract the rigours of Section
35 of the Act, the actus reus which is possession of
contraband by the accused cannot be said to have been
established.
With a view to bring within its purview the
requirements of Section 54 of the Act, element of possession
of the contraband was essential so as to shift the burden on
the accused. The provisions being exceptions to the general
rule, the generality thereof would continue to be operative,
namely, the element of possession will have to be proved
beyond reasonable doubt…”
The law laid down in Noor Aga case (supra) was again followed
by the Hon’ble Apex Court in “Mohan Lal v. State of Rajasthan (2015) 6
Supreme Copurt Cases 222 and Bawindar Singh (Binda), appellant vs.
Narcotics Control Bureau, respondent with Satnam Singh, appellant vs.
Narcotics Control Bureau, 2023 SCC online SC 1213.
Balwinder Singh (Binda) vs. Narcotics Control Bureau” cited
(supra) was decided by a three-judge bench of the Hon’ble Apex Court. It
is also felt appropriate to reproduce the relevant paras of the judgment for
ready reference:
“30. We may first test on the anvil of certain law, the plea
taken by learned counsel for the appellant-Satnam Singh that the
prosecution has failed to establish a prima facie case against the
accused and therefore, the burden of proving his innocence did
not shift back to him. In the case of Noor Aga 38 (supra), a two-
Judges Bench of this Court was required to decide several
questions, including the constitutional validity of the NDPS Act
and the standard and extent of burden of proof on the prosecution
vis-à-vis the accused. After an extensive discussion, this Court
upheld the constitutional validity of the provisions 10 of Sections
35 and 54 of the NDPS Act 43 , but went on to hold that since the
provisions of the NDPS Act and the punishments prescribed
therein are stringent, the extent of burden to prove the
foundational facts cast on the prosecution, would have to be more
onerous. The view taken was that courts would have to undertake
a heightened scrutiny test and satisfy itself of “proof beyond all
reasonable doubt”. Emphasis was laid on the well-settled
principle of criminal jurisprudence that more serious the offence,
the stricter would be the degree of proof and a higher degree of
assurance would be necessary to convict an accused. [Also refer:
State of Punjab v. Baldev Singh 44, Ritesh Chakarvarti v. State of
M.P.45 and Bhola Singh39 (supra)].
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21
31. Thus, it can be seen that the initial burden is cast on
the prosecution to establish the essential factors on which its case
is premised. After the prosecution discharges the said burden, the
onus shifts to the accused to prove his innocence. However, the
standard of proof required for the accused to prove his
innocence, is not pegged as high as expected of the prosecution.
In the words of Justice Sinha, who speaking for the Bench in
Noor Aga38 (supra), had observed that:
58……Whereas the standard of proof required proving the
guilt of the accused on the prosecution is “beyond all
reasonable doubt” but it is “preponderance of
probability” on the accused. If the prosecution fails to
prove the foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is possession of
contraband by the accused cannot be said to have been
established.”
32. The essence of the discussion in the captioned case
was that for attracting the provisions of Section 54 of the NDPS
Act, it is essential for the prosecution to establish the element of
possession of contraband by the accused for the burden to shift to
the accused to prove his innocence. This aspect of possession of
the contraband has to be proved by the prosecution beyond
reasonable doubt.”
29.In the backdrop, we are of the considered view that the learned trial court
has rightly appreciated the law as also the evidence while passing the
impugned judgment. The opinion of the learned trial court to the effect
that prosecution has failed at the trial to establish the guilt of the accused
i.e., respondents beyond any shadow of doubt, does not call for any
interference. There accordingly, does not appear to be any illegality with
the impugned judgment. The instant appeal, as such, is dismissed as
meritless.
30.Before parting, we with deep concern feel it inevitable to point out that
“illicit traffic” in relation to Narcotic Drugs and Psychotropic Substances
is on the alarming increase, which has led to drug addiction among a
sizable section of the public, particularly the adolescents and students of
both the sexes. The menace has assumed serious and alarming dimensions
in the recent years. Drug addiction has been eating vitals of the society.
CrlA (AD) No. 42/2022
22
Every day we hear about the seizure of Narcotic Drugs and Psychotropic
Substances especially from the youth. It is shocking that most factual and
genuine cases in relation to offences under NDPS Act end in acquittals
mainly on account of casual, cavalier, unfair, faulty and non-scientific
investigations. The mandatory provisions under NDPS Act are being
taken casual and observed in breach. Casual, unfair and non-scientific
investigations in NDPS cases is uncalled for. A larger Bench of the
Hon’ble Apex Court in case Hira Singh and Anr. Vs. Union of India
and Anr., AIR 2020 SC 3255, decided on 12.04.2020 inter-alia observed:-
” 8.5. The problem of drug addicts is international and the
mafia is working throughout the world. It is a crime against the
society and it has to be dealt with iron hands. Use of drugs by
the young people in India has increased. The drugs are being
used for weakening of the nation. During the British regime
control was kept on the traffic of dangerous drugs by enforcing
the Opium Act, 1857, the Opium Act, 1875and the Dangerous
Drugs Act, 1930. However, with the passage of time and the
development in the field of illicit drug traffic and during abuse
at national and international level, many deficiencies in the
existing laws have come to notice. Therefore, in order to
remove such deficiencies and difficulties, there was urgent
need for the enactment of a comprehensive legislation on
Narcotic Drugs and Psychotropic Substances, which led to
enactment of NDPS Act. As observed herein above, the Act is a
special law and has a laudable purpose to serve and is
intended to combat the menace otherwise bent upon destroying
the public health and national health. The guilty must be in and
the innocent ones must be out. The punishment part in drug
trafficking is an important one but its preventive part is more
important. Therefore, prevention of illicit traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 came to be
introduced. The aim was to prevent illicit traffic rather than
punish after the offence was committed. Therefore, the Courts
will have to safeguard the life and liberty of the innocent
persons. The provisions of NDPS Act are required to be
interpreted keeping in mind the object and purpose of NDPS
Act; impact on the society as a whole and the Act is required to
be interpreted literally and not liberally which may ultimately
frustrate the object, purpose and preamble of the Act.
Therefore, the interpretation of the relevant provisions of the
statute canvassed on behalf of the accused and the intervener
that quantity of neutral substance (s) is not to be taken into
consideration and it is only actual content of the weight of the
offending drug, which is relevant for the purpose ofCrlA (AD) No. 42/2022
23determining whether it would constitute “small quantity or
commercial quantity”, cannot be accepted”.
31.All the concerned agencies viz Central Excise, Narcotics, Customs,
Revenue Intelligence and Police are expected to rise to the occasion and
investigate the Narcotic cases with utmost responsibility and fairness. In
Union of India Vs. Ram Samujh and Ors., 1999 (9) SC 429, it was inter-
alia observed by the Hon’ble Apex Court:-
“it should be borne in mind that in a murder case, the accused
commits murder of one or two persons while those persons who
are dealing in Narcotic Drugs are instrumental in causing death
or in inflicting death blow to a number of innocent young victims
who are vulnerable; it cases deleterious effects and a deadly
impact on the society; they are hazard to the society even if they
are released, temporarily in all probability, they would continue
their nefarious activities of trafficking and/or dealing in
intoxicants clandestinely. Reason may be large stake and illegal
profit involved”.
It is equally surprising that investigations in NDPS cases are most
often being entrusted to incompetent officers. As per the provisions of the
Section 175 of BNSS read with Section 53 of the NDPS Act, an officer In-
charge of a Police Station can investigate the offences under the NDPS Act.
So a case under the NDPS Act cannot be investigated by a police officer
below the rank of a Sub Inspector. A Division Bench of this Court has
already in PIL No. 05/2013 titled as “Court on its Own Motion” Vs. State
of J&K and Others (Jammu Wing) passed a series of directions to ensure
that, in NDPS cases, the investigation is conducted in a proper and
professional manner by adhering to the mandatory provisions of the Act.
The Central and State/UT Governments, as such, need to authorize the
experienced and competent officers of Central Excise, Narcotics, Customs,
Revenue Intelligence, Police etc to exercise powers under Sections 41, 42
CrlA (AD) No. 42/2022
24
and 43 etc of the NDPS Act. A casual approach of the Investigating
agencies in the matter of the investigation in NDPS cases creates a sense of
insecurity and undermines the faith of the common man in the
administration of the criminal justice.
32.We, however, appreciate the efforts of the Government of Jammu and
Kashmir Home Department, Civil Secretariat, Srinagar, in issuing the
Circular No. 02-Home of 2017 dated 25.09.2017 prescribing the Standard
Operating Procedure(s) to be followed in NDPS cases and expect that
same shall be pressed into service.
33. Disposed of.
(Mohd. Yousuf Wani) (Sanjeev Kumar)
Judge Judge
JAMMU:
03.01.2025
"Shamim Dar"
Whether the Judgment is reportable? Yes/No
Shamim Ahmad Dar
I attest to the accuracy and
authenticity of this document
CrlA (AD) No. 42/2022
03.01.2025