The Addl. Sessions judge, Jammu Mr. Tahir Khurshid Raina acquitted accused Nazir Hussain s/o Mohd Abdullah r/o Simbal RS pura in an F.I.R No- 94/2009 lodged at police station Miran Sahab on 16-7- 2009 , for commission of offences u/sec 8/20/21 NDPS Act. He along with other two co- accused named Darshan Singh and purshotam lal of R S Pura were also booked in the said F.I. R . After filing of the charge sheet in the same year in the competent court , the two accused were charged by the court for commission of offences u/sec 8/20/21 NDPS Act while accused purshotam lal u/sec 109 RPC . The trial of the case commenced in the year 2009 itself . However, the other two accused Darshan singh and purshotam lal died during the course of long drawn trial of eleven years and proceedings got abated against them. So the only surviving accused was Nazir Hussin against whom trial continued and culminated into acquittal after more than eleven years.
As per the prosecution storey there was a prior information received by the SHO police station that at place named kotli mian baksh , two accused are standing on the roof of a shop of Parmvir singh who have kept there contraband to get the owner of the shop roped in a criminal case of drug trafficking . On receiving this information, SHO also informed telephonically SDPO to reach on the spot. After receiving the same, he lodged an FIR and left for the spot along with other police personnels . After some time SDPO also reached at the spot . They saw two accused standing on the roof , rushed there to catch them . Out of the four police personnels , two have come before the court and stated that they rushed to catch both the accused. Out of two, one accused Darshan singh was caught while the other succeeded in fleeing from the spot. From the possession of the acccued Darshan singh contraband CHARAS was recovered. Later accused Nazir hussain who alleged to have fled from the spot was arrested along with third accused purshotam lal , who , as alleged in the charge sheet , took the services of these two accused for taking avenge from the owner of the shop with whom he had some rift .
During the course of trial , 9 witnesses out of 13 were examined in the court , where as the IO of the case did not chose to appear as witness .
Court in its observation formulated its conclusion of acquittal on the following facts emerged out of the trial.
No witness were knowing the accused earlier of the alleged occurance . Therefore identity of the said accused , who alleged to have fled away from spot was required to b confirmed through test identification parade. But it was not conducted. Nor the said accused was identified by any witness in the court as the one who fled from the spot. So identity of the accused remained obsure.
All the three independent witnesses including the owner of the shop on whose roof accused was caught and contraband recovered did not support prosecution case and described it as a false case. They have described the contents of recovery memo of contraband untrue as they were marginal witness to it. However, prosecution has not got them declared as hostile by the court.
Court further observed that as this case was based on specific prior information about the commission of offence, it therfore attracted full application of mandatory provisions of NDPS Act like sec 41, 42(1) and sec 50. However , the evidence on record do not show that the mandate of said provisions of the Act were complied with in letter and spirit whose strict compliance have been held mandatory by constitutional bench of SC .
Court observed that informing SDPO and his arrival to become part of the raid party does not amount to compliance of mandate of sec 42 (1) and 50 of the Act in the facts and circumstances of the case and as held by SC in 2014.
Even there’s nothing on record to suggest that where the alleged seized material was kept after its alleged recovery from the co accused and in whose custody it was kept at police station . When it was again taken to Magistrate for resealing and who took it to FSL for examination. What was the seal put on the sealed packets and where it was kept latter. All these material lapses were to be explained by the investigating officer of the case who has not appeared as witness inspite of repeated opportunities and in such situation his non appearance as witness has proved fatal for the prosecution .
Court observed that when legistors in their wisdom have prescribed severe punishment for the offences committed under NDPS Act, it correspondingly attracts fair and foolproof investigation by the IO and proper application of mandatory provisions of the Act while conducting the investigation. Court held that the superior courts have consistently held that the violation of the mandatory provisions of Act like sec 42 and 50 will vitiate the investigation and results into acquittal of the accused. Finally, court observed that prosecution has failed to prove charge against the accused beyond reasonable doubt. According the only surviving accused out of three stand acquitted.JNF