Failure To Show Safe Custody Of Seized Contraband & Existing Contradictions In Evidence Sufficient To Acquit Accused In NDPS Case: J&K High Court

Acquitting the accused persons under section 8/15 of the NDPS Act the Jammu and Kashmir High Court held that failure to show safe-custody of the contraband seized, inability to record statements of crucial witnesses and contradictions in the statements of the witnesses shows that prosecution miserably failed to prove its case beyond reasonable doubt.

The court was dealing with an appeal filed by the UT of J&K against the judgment by the trial court acquitting the accused under section Section 8/15 NDPS Act. it was case of the prosecution that 18 bags of Poppy Straw like material was recovered from the central chamber of the vehicle which was seized and then re-sealed by the executive magistrate.

A bench of Justice Sanjeev Kumar, Justice Puneet Gupta held that although the prosecution claimed that samples from all 18 bags were taken however the record showed that only 9 samples were received by the FSL and it remained to be explained as to what happened to the remaining 9 samples. The court noted that investigating officer was also silent on the issue.

The court said that during seizure the laborers who assisted the police in uploading the contraband were important witnesses whose statement were crucial but they were not made the witnesses weakening the prosecution's case.

The court also noted that it was also not explained if the executive magistrate was present on the spot when the contraband was seized then why such re-sealing was not done on the spot and same was delayed for next day.

It also said that there was no record shown by the prosecution that the samples of the contraband which were placed in malkhana were taken from there for the purpose of re-sealing later on.

The court said that there was also no record showing that contraband was actually deposited in malkhana, it added that had the malkhana register been placed on record, it would have shown the day and time when samples were deposited there and also the time of taking the same for the purpose of re-sealing.

The court said all of this goes on to show that neither the evidence collected connected the accused with offence with which they were charged with nor was the safe-custody of the contraband proved by the persecution.

The court upheld the judgment of the trial court in acquitting the accused of the offences under section 8/15 of the NDPS Act.

BACKGROUND

A Naka Party of Police Station had intercepted and checked an oil tanker on the national highway wherein it found in it as many as 18 bags containing Poppy Straw like material. The occupants of the vehicle were the driver and conductor of the vehicle respectively. After seizing the above mentioned material head of the Naka Party sent a docket to the Police Station through Constable and on the basis of such docket the Police Station registered an FIR under Section 8/15 NDPS Act.

The investigation officer was the then SHO Police Station who proceeded to the place of occurrence and seized the contraband item in question in the presence of the witnesses. The investigating officer recorded statements of witnesses under Section 161 and 164 Cr.PC . Eighteen samples out of 18 bags were taken and got resealed by the Executive Magistrate.

The sealed samples were sent to FSL for chemical examination. In the FSL examination, it was found that the samples contained Poppy Straw. The investigation was, thus, concluded and the charge-sheet presented before the competent Court. The trial Court framed charges against the respondents herein under Section 15 of the Act. However, the trial court acquitted the accused of all the charges stating that prosecution failed to prove the case beyond reasonable doubt.

APPEARANCE:

P.D Singh, Dy. A.G, Advocate for Petitioner

A.K Shan, Advocate For Respondents

Case-title: State of Jammu and Kashmir vs Gurmeet Singh and Anr

Citation: 2025 LiveLaw (JKL) 149

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