*Strictures passed against IO, Executive Magistrate
Excelsior Correspondent
JAMMU, Nov 6: In a rarest of the rare case, Additional Sessions Judge Jammu Tahir Khurshid Raina has rejected the application filed by Gangyal Police seeking remand of two accused booked under NDPSA and passed strictures against Investigating Officer as well as Executive Magistrate.
Moreover, in view of slackness and casual approach by the investigating agency the court directed the SSP to enquire into the matter forthwith, fix the responsibility and submit the compliance report within a fortnight. Even District Magistrate Jammu has been directed to look into the conduct of Executive Magistrate and take action under law and submit the report within a fortnight.
The application for judicial remand of the accused persons namely Kamaljeet Singh of Nanak Nagar and Sourav Sudan of Indira Nagar was moved by B S Charak, PSI in FIR registered under NDPS Act at Gangyal Police Station and the court sought CD file from the concerned officer.
The perusal of the CD file revealed that on 30-10-2019 Kamaljeet Singh of Nanak Nagar and Sourav Sudan of Indira Nagar were arrested along with heroin by Gangyal Police and they were remanded to police custody by Executive Magistrate (Tehsildar) Ist Class Jammu for a period of six days.
The remand period expired today and investigating agency moved an application for judicial remand of the accused persons before Principal Sessions Judge, who transferred the same to Additional Sessions Judge for its disposal under law.
On scanning of the CD file, court astonished to note that IO has not placed on record the seizure memo in respect of the contraband allegedly recovered from the accused persons. On inquiry from him about this most important document which gives a prima facie presumption of guilt of the accused in context of the circumstances revealed in the FIR there was no cogent reply from the officer. Rather he stated that he had forgotten the documents in the Police Station.
“IO has not bothered to submit even a single CD in the case as mandated by Section 172 of the Code of Criminal Procedure. Even, the seizure memo which was placed on record by the IO, after seeking time from this court, has not been attested by the marginal witness cited there in namely Satpal Sharma ASI P/S Gangyal and Sgct. Faqeer Din. Even the docket on the basis of which FIR came to be registered, has not been found across the file”, the Additional Sessions Judge observed.
The Additional Sessions Judge further observed, “the first question is how the IO approached Executive Magistrate in the very first instance for police remand of the accused and did not approach Judicial Magistrate”, adding “law on the point is that the police remand in the first instance must be sought from the Judicial Magistrate. It’s only in case of non availability of the Judicial Magistrate that the IO can approach Executive Magistrate for the same recording the reason in this regard in the CD file”.
“Even the order of remand passed by the Executive Magistrate was in contradiction of the mandate of the Code as envisaged in Section 167 CrPC. The order does not speak at all the reasons as to why the police remand has been granted of the accused persons. This observation in any remand order is the “Sine qua non” of sending the accused to police custody”, the Additional Sessions Judge said, adding “as per Section 167 (4) of the CrPC if the Executive Magistrate grant remand in other than the District Magistrate or Sub Divisional Magistrate, he shall forward a copy of the order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate. However the order of remand passed by Executive Magistrate (1st Class) has not complied with the mandate of the law governing the field”.
“In these facts and circumstances it is more than clear that there is no cogent and convincing evidence on record which would justify to perpetuate the remand of the accused and to accede to the request made by the IO”, the court said while rejecting the application seeking remand.
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