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DB dismisses Criminal Acquittal appeal, acquitted accused from offence under NDPS
11/22/2017 10:11:03 PM
Early Times Report
JAMMU, Nov 22: A Division Bench of Jammu and Kashmir High Court comprising of Justice Badar Durez Ahmed (Chief Justice) and Justice Sanjeev Kumar has dismissed the criminal acquittal appeal in NDPS.
The present acquittal appeal has been preferred by the State against the judgment dated 15.02.2016, delivered by the Court of 2nd Additional Sessions Judge, Jammu, in respect of File No. 76/ Special Challan, which, in turn, arose out of FIR No. 163/2014 registered at Police Station, Nowabad, Jammu, for offences under Sections 8, 15 and 27 of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as "the said Act").
The prosecution version is that during the intervening night of November 1 and 2, 2014, a joint Naka of Police Station, Nowabad and Special Operation Group, Jammu, was carried out at Dogra Chowk, Jammu. At about 4.30 am, a Truck bearing registration No. JK02AF-6121, allegedly driven by Raj Kumar, with the other two accused on board, approached Dogra Chowk. The said vehicle was subjected to checking, where upon, four boxes of poppy straw were recovered from the cabin of the truck and other 14 boxes were recovered from the body of the truck, which was loaded with boxes containing apples. The Investigating officer, on reaching the spot, weighed the seized and recovered poppy straw and, as per the prosecution, the total quantity of the poppy straw was 120 kilograms.
The Division Bench after going through the facts of the case observed that the aspect of the matter is fatal to the prosecution case and there is no infirmity in the conclusions arrived at by the trial Court. It cannot be said with any degree of certainty that the samples allegedly taken on 02.11.2014 and deposited in the "malkhana? on 02.11.2014 itself, were the very ones which were examined by PW Pawan Abrol, Scientific Officer, FSL, Jammu, observed the court.
"This is so, particularly because as per the evidence of PW Khalil Ahmed, Mohrar, there are no entries of 03.11.2014, 05.11.2014 and 07.11.2014 when the Investigating officer is said to have taken the samples from the "malkhana?, re-deposited the samples after having them sealed by the Executive Magistrate and once again taken the samples for sending to the FSL, respectively," observed the court.
The Division Bench held that there is no clear-cut path of the movement of the samples from 02.11.2014 to 07.11.2014. There is also evidence that when the Executive Magistrate re-sealed the samples, he had nothing to compare the seals placed on them with the actual seal, as the impression of the seal was not with him. This would again go towards creating doubt as to whether the samples which were allegedly taken on 02.11.2014 were the ones which were produced before the Executive Magistrate and consequently before the FSL on 07.11.2014.
The Division Bench held that there is no direct evidence of any witness indicating that the material seized was in fact poppy straw. In view of the foregoing, DB entirely agree with the trial Court that the prosecution has not been able to prove its case beyond reasonable doubt and consequently, dismissed the appeal.
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