Legally Bharat

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the Code of Criminal Procedure Samvat.1989 (already repealed but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

Syed Ayaz Hussain
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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
animal or conveyance which he has reason to believe to be

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liable 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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crlA (AS) no. 13/2029
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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crlA (AS) no. 13/2029
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 show

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crlA (AS) no. 13/2029
23

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 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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crlA (AS) no. 13/2029
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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)].

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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crlA (AS) no. 13/2029
25

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.

                                                      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




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I attest to the accuracy and
authenticity of this document

11.09.2024 17:00



                    crlA (AS) no. 13/2029
 

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