Jammu & Kashmir High Court – Srinagar Bench
State Through P/S Pulwama vs Nazir Ahmad Rather on 10 September, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1 Suppl no.1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR {CrlA (AS) No. 13/2019} Reserved on: 22.08.2024 Pronounced on: 10.09.2024 State through P/S Pulwama ... Appellant Through: Mr. Ab. Rashid Malik, Ld Sr. AAG with Mr. Mohd. Younis, Assisting Counsel vs. 1. Nazir Ahmad Rather S/o Mohd. Abdullah Rather 2. Mohd. Yasin Ganaie S/o Gh. Mohad. Ganaie 3. Manzoor Ahmad Ganaie S/o Gh. Nabi Ganaie R's/oTahab, District Pulwama ....Respondents Through: Mr. Shabir Ahmad, Advocate CORAM: HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON‟BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE JUDGMENT
Mohd Yousuf Wani-J
1. Impugned in the instant appeal is the judgment dated 30-12.2016
passed by the Court of learned Principal Sessions Judge, Pulwama,
(hereinafter referred to as the “Trial Court” for short), while
culminating the trial of a police report/challan arising out of the case
FIR No. 257/2013 of Police Station Pulwama, and filed u/s 173 of
the Code of Criminal Procedure Samvat.1989 (already repealed but
applicable in the case & hereinafter referred to as the “Code” for
short) bearing file No. 21/2007- with date of institution as
19.09.2007, whereby the learned Trial Court acquitted the
respondents/accused of their charges U/Ss 15/18, 29 of Narcotic
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Drugs and Psychotropic Substances Act, 1985 (hereafter referred to
as the “Act” for short).
2. The impugned judgment of acquittal has been assailed
by the Appellant i.e., State of J&K (now UT) through SHO Police
Station Pulwama, on the grounds, interi alia that same is liable to be
set-aside, as being against the facts and the law. That the learned
trial court has not appreciated the evidence of the prosecution led at
the trial in the proper perspective and has proceeded to acquit the
respondents/accused on hypothetical conclusions without any
concrete basis, while under-estimating the fact of their being
involved in serious offences under the Act. That the learned trial
court has over looked the important aspect of the respondents‟ being
found in conscious possession of the contraband narcotic substance
i.e., poppy straw Raw and Grinded weighing total 21+79=100 Kgs
on account of which fact presumption of culpable mental state stood
amputated as against them with the shifting of burden to prove
otherwise also on them. That the respondents at the trial, just simply
pleaded that they have been falsely implicated in the case FIR
without discharging their burden to prove that they were not in
conscious possession of contraband. That the prosecution led
sufficient evidence to establish the guilt of the respondents/accused
but the learned trial Court did not appreciate the same. That the
learned trial court pin-pointed minor contradictions occurring in the
prosecution evidence which were not fatal for the prosecution case,
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thereby denying the right of fair trial to the appellant. That the
observations of the learned trial court made in the impugned
judgment to the effect that investigation in the case has been
conducted in a casual and cavalier manner as also in violation of the
mandatory provisions of the Act, are far from the real facts. That the
manner in which the investigation was conducted under the
supervision of SHO concerned lends credibility to the fairness and
impartiality of the same and as such strict adherence to the
provisions of Section 42 (2) of the Act was not necessary. That
prosecution has succeeded at the trial of the case to prove the guilt of
the respondents beyond any shadow of doubt as the ingredients of
the offences charged against them were proved by clear, sufficient
and cogent evidence. That there is absolutely no bar under law for
lending credibility to the evidence of the official/police witnesses
inspiring confidence as the law requires quality of the evidence
rather than the quantity of the same.
3. The case of the prosecution before the learned trial court was that on
23.06.2007, a reliable information was received by the Police
Station, Pulwama to the effect that at Village Tahab, Pulwama, the
respondents/accused have installed a machine and are busy in
grinding poppy straw to make “Fuki” for doing the illegal business
thereof and some quantity of “Fuki” is lying on spot. That on receipt
of the said information, case FIR bearing No. 257/2013 was
registered with the Police Station concerned and a raiding party
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under the supervision of SHO concerned left for the spot, raided the
premises and caught the respondents red handed while grinding
poppy straw to make “Fuki”. That the investigating Officer, PW-6
Head constable Mohd Yousuf (67/PL), prepared the important
documents/memo‟s including the memo‟s regarding the seizure of
grinding machine and poppy straw and the statements of the
witnesses u/ss 161, 164-A of the Code came also to be recorded, by
him. That the seized contraband substance i.e., poppy straw/fuki
upon weighing was found to be 21 Kgs raw poppy and 79 Kgs
grinded poppy/fuki, total 100 Kgs being filled in five gunny bags.
That the respondents were arrested and samples were taken out of
the seized material in presence of Tehsildar, Pulwama, for being sent
to FSL Srinagar for opinion, which was subsequently received as
positive. That during investigation, the respondents were found to
have committed the offences punishable U/Ss 15/18, 29 of the Act.
4. During the trial of the case, the respondents/accused came to be
formally charged for the commission of the offences U/Ss 15/18, 29
of Act vide order dated 04.10.2007, who pleaded not guilty and
instead claimed to be tried, pursuant to which the prosecution was
directed to lead evidence in support of it‟s case. The prosecution,
accordingly, could produce and examine only six witnesses i.e.,
PWs 1 to 6 out of its ten listed witnesses. After closure of the
prosecution evidence vide order dated 01.06.2011, the statements of
the respondents/accused U/s 342 of the Code came to be recorded
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on 28.03.2013. After hearing the prosecution and the defense in
terms of provision of Section 273 of the Code, a case of “No
Evidence” was not found to be made out, pursuant to which the
respondents/accused were directed to lead evidence in their defense.
The respondents/accused despite availing of several opportunities
did not opt to lead any evidence in their defense and accordingly,
their evidence was closed vide order dated 16.08.2014. The learned
trial court after hearing the prosecution and the defense passed the
impugned judgment of acquittal. The learned trial court through the
impugned judgment has acquitted the respondents/accused of their
charges while observing that the prosecution has failed at the trial to
establish their guilt beyond any shadow of doubt. As per the learned
trial court, the evidence led by the prosecution at the trial is full of
contradictions in relation to material particulars of the case thus
giving rise to a grave doubt and a discrepancy, the benefit whereof
goes to the respondents. It has also been inter alia observed in the
impugned judgment that investigation of the case has been conducted
in violation of the mandatory provisions of the Act as laid down
under Sections 42, 52 and 57. The learned trial court in the impugned
judgment has pin-pointed the flaws and irregularities having been
committed during investigation of the case and has also referred to
the contradictions in respect of material particulars in terms of the
evidence of the prosecution witnesses examined at the trial.
5. We have heard the learned counsel for the parties.
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6. Mr. Abdul Rashid Malik, Sr. AAG, while reiterating his stand taken
in the memo of appeal submitted that the impugned judgment of
acquittal dated 30.12.2016 is liable to be set aside as being bad in
law, because the learned trial court has not appreciated the evidence
led at the trial by the prosecution which is of clear and unequivocal
character, pointing towards the guilt of the accused. He submitted
that in a criminal trial, it is the quality of the evidence and not
quantity which is material. He also submitted that the evidence of
police witnesses is not to be under estimated or discarded as whole
but to be appreciated having regard to the fact that independent
civilian witnesses quite often hesitate to associate themselves with
the occurrence when the investigation is being conducted in respect
of the offenses under the Act and that too when raids are being
conducted during odd hours on specific information. He further
submitted that the prosecution at the trial produced and examined as
many as six witnesses including the Investigation officer (I.O) of the
case who supported and corroborated the material particulars of the
prosecution case. The learned counsel, however, submitted that
minor contradictions are not fatal for the prosecution case as they
occur with the fading of the human memory.
Mr. Malik Sr. AAG, further submitted that the investigation
of the case was conducted under the supervision of the SHO
concerned and the requirements of sending any reports/information
to the superior officers as per the provisions of Sections 42 and 57 of
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the Act was not necessary in the facts and circumstances of the case.
He submitted that the factum of the possession of contraband
narcotic substance i.e., poppy straw weighing (100) Kgs with the
respondents and the consequent recovery of the same from them was
fully established at the trial by the prosecution witnesses. He
contended that as per Sections 35 and 54 of the Act, culpable
mental state is imputed as against the respondents in relation to the
said contraband and the burden to prove that they were not in the
conscious possession of the same was upon the respondents who
failed to do the same. It was further contended that the reports in
respect of the samples taken during investigation of the case before
the Executive Magistrate were received as positive confirming the
contraband substance as “poppy/fuki”. The learned State counsel
prayed for setting aside of the impugned judgment and the
consequent conviction of the respondents.
7. Per contra, the learned counsel for the respondents Mr. Shabir
Ahmad, Advocate, submitted that the impugned judgment of
acquittal does not suffer from any illegality or perversity as having
been passed in accordance with law on the proper appreciation of the
evidence adduced at the trial, and having regard to the breach of the
mandatory provisions of the Act. The learned counsel submitted that
the learned trial court has rightly been convinced to hold that
prosecution at the trial has failed to bring home the guilt of the
accused beyond any shadow of doubt. That the learned trial court
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has pinpointed the violations having been committed during the
investigation of the case by observing the mandatory provisions of
the Act, especially contained under Sections 42, 52 and 57 in
breach. The learned counsel while referring to the evidence led by
prosecution at the trial submitted that the procedure as regards the
search, seizure and sampling has been totally observed in breach
and besides no independent witness despite availability has been
associated with investigation which raises a reasonable doubt
regarding the genuineness of the prosecution case. He further
contended, that it is the cardinal principle of criminal jurisprudence
that an accused person is presumed to be innocent till proved guilty
and the burden of proving everything essential to establishment of
his guilt, lies on the prosecution. He contended that the presumption
under sections 35 and 54 of the Act is a rebuttable presumption and
as such when the prosecution initially fails to discharge its burden,
the accused need not to rebut the same. He further contended that
the prosecution witnesses examined at the trial have given
contradictory versions regarding material particulars. The learned
counsel prayed for the dismissal of the appeal.
8. We have perused the memo of the appeal and the scanned copy of
the trial court record especially the judgment impugned. We have
also accorded our consideration to the rival arguments advanced on
both sides.
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9. In light of the aforementioned perusal and consideration, we are of
the view that learned trial court has rightly appreciated the evidence
adduced by prosecution at the trial and while doing so has justly
opined that prosecution has failed at the trial to bring home the
guilt of the respondents beyond any shadow of doubt. There
accordingly appears to be no illegality or perversity with the
impugned judgment.
10.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 distinction between conjectures and
sure conclusions needs to be maintained in criminal trials.
11.As hereinbefore mentioned, the prosecution examined six witnesses
at the trial i.e., PWs 1 to 6. There are fatal discrepancies and
contradictions in the statements of aforesaid witnesses examined at
the trial in respect of material particulars of the case especially with
regard to preparation of necessary documents/memo‟s regarding
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formal seizure and sealing of the alleged contraband substance on
the spot.
Pw-1, S.I, Manzoor Ahmad No. 7119/PL in his cross examination
interalia, deposed, that all the formalities were completed by the I.O
on spot by preparing the seizure memo, site plan and recording the
statements of witnesses. He deposed that it took them two to three
hours on spot to complete all the formalities. That when they reached
on spot, I.O Mohammad Yousuf No. 67/PL was accompanying
them from start to end.
PW-2, Head Constable Gh. Mohi ud din No. 80/PL also inter
alia, deposed in his cross examination at the trial, that
documentation was done by the I.O on spot and as such he signed on
spot.
PW-3, Constable Mohd Sultan No. 745/PL however, inter alia
deposed that seized bags were again weighed in Police Station. That
EXPW-3 i.e., seizure memo was prepared in the Police station and
after that he and other witnesses signed on the same in the Police
Station. That he gave his statement before the I.O in the Police
Station. That no sealing of the bags was done on the spot.
PW-4, Sgct Gh. Qadir No. 945/PL during his cross examination
inter alia deposed that they recovered nothing from the accused
persons inside the machine premises. That he knows nothing about
weighing as he was busy in un-mounting machine.
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PW-5, constable, Jalal-ud-din No. 750/PL also during his cross
examination inter alia, deposed that he knows nothing about the
packing of bags and none of his signature was taken on the spot.
PW-6, Head Constable Mohd Yousuf No. 67/PL, who as per the
prosecution case conducted the earlier investigation in the case has
inter alia deposed in his cross examination at the trial that seizure
memo was prepared on the second day of the occurrence as on the
first day it was too late. That he prepared, the site plan, EXPW-3
(seizure memo) and report under section 173 of the Code, but did not
record the statements of witnesses, under section 161 of the Code as
same were recorded by some other head constable whose name he
does not remember. That when seized material was taken to the
police station, it was about mid night. That on second day the
Tehsildar was called on phone to police station. That seized bags
were not wrapped in any cloth. That he does not remember whether
any mark was put on the seized bags. That he cannot explain as to
where the seized material was kept from 11.07.2007 to 14.07.2007.
That he did not send any separate report to his superior officers. That
he does not know as to whether FIR had been registered when they
laid the raid and whether he in his capacity as Head Constable was
competent to investigate the case FIR under NDPS Act.
12.It is undisputed on the part of the prosecution itself, that no gazetted
officer or any magistrate was accompanying the raiding party on the
date of alleged occurrence i.e., 23.06.2007. There are fatal
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contradictions in the evidence adduced at the trial by the prosecution
as regards the material particulars of the case. The Investigating
Officer of the case himself has stated at the trial in his examination
that seizure was made on the second day of the occurrence. It is also
discernable from the prosecution case that the investigation has
been conducted in violation of the mandatory provisions of the Act
as contended under Sections 42, 52 and 57.
It has been un-contradictionally deposed by all the six
prosecution witnesses examined at the trial that no civilian
independent witness was associated with the occurrence especially
the seizure of the contraband substance.
13.The non compliance of the mandatory provisions of Sections 42, 52
and 57 of the Act is fatal for the prosecution case as seriously
doubting the genuineness of the same. The intention of the
legislature, obviously is that when stringent punishments are
provided under the Act, there are sound safe guards to ensure that
innocent persons are not harassed on unnecessarily detained by any
arbitrary or whimsical actions of the police or 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.
A perusal of the provisions of the Act will leave no doubt that while
the legislature wanted to curb menace of illicit traffic in Narcotic
Drugs and Psychotropic Substances with a heavy hand by providing
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stringent punishment, it was nevertheless conscious of the
constitutional requirements that the liberty of an individual must not
be lightly curtailed and in order to avoid or lessen the possibility of
false implication, it provided sound procedural safeguards.
Under the provisions of section 42 of the Act, a police officer
of the State Government not below the rank of constable being
empowered by general or special order of the State Government, if
he has reason to believe from his personal knowledge or information
given by any person and taken down in writing to the effect that any
narcotic drug or psychotropic substance or controlled substance in
respect of which an offence punishable under this Act has been
committed or any document or other article which may furnish
evidence of the commission of such offence or any illegally acquired
property or any document or other article which may furnish
evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture in Chapter V-A of the Act is
kept or concealed in any building, conveyance or enclosed place,
may, between “sunrise and sunset”:-
“(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and all materials used in
the manufacture thereof and any other article and any
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14liable to confiscation under this Act and any document or
other article which he has reason to believe may furnish
evidence of the commission of any offence punishable
under this Act or furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have committed
any offence punishable under this Act.”
The proviso appended to the said section 42 of the Act,
further provides that if such an officer has reason to believe that a
search warrant or authorization cannot be obtained without affording
an opportunity for the concealment of evidence or facility for the
escape of an offender, he may enter and search such building
conveyance or enclosed place at any time between “sunset and
sunrise” after recording the grounds of his belief.
Clause (2) of the Section says that where an officer takes
down any information in writing under sub- section (1) or records
grounds for his belief under the proviso thereto, he shall within 72
hours send a copy thereof to his immediate official superior.
The provision of section 42 of the Act are needed to be read
and understood conjointly with the provisions of Section 41 of the
Act. As per the clause (1) of the Section 41 of the Act a
metropolitan magistrate or magistrate of the first class or any
magistrate of the second class specially empowered by the State
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Government in this behalf may issue a warrant for arrest of any
person whom he has reason to believe to have committed any
offence punishable under the Act or for search whether by day or by
night of a building conveyance or place in which he has reason to
believe any narcotic drug or psychotropic substance or contraband
substance in respect of which an offence punishable under the Act
has been committed, or any document or any other article which
may furnish evidence of the commission of such offence or any
illegally acquired property or any document or other article which
may furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under Chapter V-
A of this Act is kept or concealed. However, under Clause (2) of the
Section 41 of the Act any such officer of the gazetted rank of the
department of State Police etc if he has reason to believe from
personal knowledge or information given by any person and taken in
writing that any person has committed any offence punishable under
this Act or that any narcotic drug or psychotropic substance or
contraband substance in respect of which an offence under the Act
has been committed etc is kept or concealed in any building or
conveyance or place may authorize any officer subordinate to him
but superior in rank to a constable to arrest such person or to search
such building, conveyance or place whether by day or by night or
himself arrest such a person or search building, conveyance or
place. An officer to whom a warrant under sub section (1) of
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section 41 is addressed and the officer who authorizes the arrest or
search or the officer who is so authorized under sub section (2) shall
have all the powers of an officer acting under section 42 of the Act.
14.A conjoint reading of the provisions of sections 41 and 42 of the Act
makes it abundantly clear that an officer/official of the State Police
Department, who has not obtained warrant for search in terms of
the provisions of Section 41 (1) of the Act or is not so authorized by
gazetted officer of his department or is not himself a gazetted
officer, cannot under any circumstances make search of any building
or conveyance or enclosed place despite his belief from personal
knowledge or information received and taken down in writing
regarding keeping or concealing of any narcotic drug or
psychotropic substance or contraband substance in any such
building or the conveyance or enclosed place, search such building
or conveyance except between “sunrise and sunset”. The SHO
police station, Pulwama, being the head of the raiding party was not
a gazetted officer and as such he was not under any circumstances
authorized to conduct search of the premises of the respondents
machine at 11 PM or thereafter on 23.06.2007. He was not also
authorized to do so by any of his superior gazetted officer. It is also
not disputed that no search warrant had been obtained.
Even, if, such a non-gazetted officer of the police department
has a reason to belief that a search warrant or authorization cannot
be obtained without affording opportunity for the concealment of
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the offence or facility for escaping of an offender and records
grounds of the belief, he cannot enter and search such building,
conveyance or enclosed place at any time before “sunrise or after
sunset”.
15.In the instant case, where the search is alleged to have been made
by a non-gazetted officer after sunset beyond 11 PM, as such, the
sending of report regarding taking down of the information in
writing and recording the grounds of his belief to his immediate
official/superior within 72 hours even cannot legalize the search and
it is needless to mention that in the instant case even no such report
has been admittedly sent to his immediate officer/superior by the
I.O (PW-6).
The Investigating Officer in the case has also observed the
provisions of Sections 52 and 57 of the Act in breach. As per the
mandatory provisions of Section 52 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 narcotic substance
from them which was needed to be sent to the immediate superior
officer of the SHO, Pulwama within 48 hours as per the Section 57
of the Act, has 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 doubt
the genuineness of the prosecution version of the case. The
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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, bring 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 non-compliance of the mandatory provisions of Sections
42, 52 and 57 of the Act would be an infirmity bound to reflect on
the credibility of the prosecution. Even where under compelling
circumstances an authorized officer invokes the provisions of
proviso to Section 42 (1) and dispenses with obtaining a search
warrant upon recording the grounds of his belief to the effect that a
search warrant or authorization cannot be obtained without
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affording an opportunity for the concealment of evidence or facility
for the escape of an offender and proceeds to go for the search of a
building, conveyance or enclosed place, he shall at least comply
with the provisions of section 100 (4) of the Code of Criminal
Procedure by associating at least two independent civilian
witnesses/inhabitants with the search process.
16.Perusal of the scanned copy of the trial court record reveals that the
prosecution evidence in the case was called vide order dated
04.10.2007 upon framing the formal charges against the
respondents/accused and was closed vide order dated 01.06.2011 in
dispensation of the examination of unexamined witnesses i.e., PW-
7 to 10, whom the prosecution failed to produce despite innumerable
opportunities. The un-examined witnesses include an Investigating
Officers (PW-7), FSL expert (PW-9) and then SHO of the Police
Station concerned PW-8 who is alleged to have expressed his
satisfaction with the investigation process and an independent
witness (PW-10). Non-examination of said important witnesses
during a period of about four years despite innumerable opportunities
tantamounts to with holding thereof and justifies an adverse
inference against the prosecution. The investigation in the case as
rightly opined by the learned trial court appears to have been
conducted in a casual and cavalier manner. No arrest memo or a
memo regarding weighing of the alleged narcotic substance appears
to have been prepared by the Investigating officer.
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The I.O of the case was required in terms of the provisions of
Section 52 (1) to prepare a memo testifying that he informed the
respondents/accused of the grounds their arrest which has not been
done.
It is also revealed from the perusal of the scanned copy of the
trial court record that one independent witness Gh. Rasool Sheikh
(PW-10) is reported to have been associated with the occurrence who
has not been examined at the trial. Even in his statement u/s 161 of
the Code recorded during investigation, he does not testify the
seizure of the alleged narcotic substance i.e. poppy straw in his
presence. As hereinbefore mentioned, no reports as needed under
the provisions of Sections 42 and 57 of the Act have been sent to
superior officers as required. The SHO Police Station Pulwama,
who was a part of the raiding party cannot be supposed to be a
superior officer of the I.O (PW-6) for the purpose of the Sections
42 and 57 of the Act. The I.O of the case (PW-6) who conducted the
initial investigation in the case should not have been a part of the
raiding party. His action and the proceeding as I.O of the case, does
not in the facts and the circumstances of the case, appear to be
independent. It is very needful to mention that the I.O (PW-6) has
during his examination at the trial inter alia deposed that he was not
knowing whether any FIR had been registered at the time when
they laid the raid. He also inter alia deposed that every thing was
being done under the supervision of the SHO.
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21
17.The prosecution has failed before the trial court to prove the
important aspects of sampling as also the analysis report. The
executive Magistrate before whom the sampling is alleged to have
been done, has not been listed or examined as a witness in the case.
18.The learned state counsel during his arguments inter alia contended
that the learned trial court has underestimated the operation of the
provisions of Sections 35 and 54 of the Act which raise presumptions
with regard to culpable mental state on the part of the accused found
in possession of the narcotic substance and as such with the proof
of the seizure of the narcotic substance involved in the case i.e.,
poppy straw from the machine premises of the respondents, they
ought to have been convicted.
19.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.
20.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
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22
provisions of sections 35 and 54 of the Act are in the form of an
additional advantage to the prosecution and the factum of alleged
possession does not ipso facto make the accused liable.
21.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 substance as being, “not conscious” only
after the prosecution proves the foundational facts of its case beyond
any doubt.
22.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 showSyed Ayaz Hussain
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23that 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 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.
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…”
23.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
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24upheld 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)].
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.”
24.In the backdrop, we are of the view that learned trial court has
rightly appreciated the law as also the evidence while rendering 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
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25call 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.
Sd:- Sd:- (Mohd Yousuf Wani) (Sanjeev Kumar ) Judge Judge Srinagar 10/ 09/2024 Ayaz i) Whether order/judgment is speaking: Yes ii) Whether the order/judgment is reportable.: Yes Syed Ayaz Hussain I attest to the accuracy and authenticity of this document 11.09.2024 17:00 crlA (AS) no. 13/2029