HC castigates prosecution for illegalities, irregularities in NDPSA case

Excelsior Correspondent
Srinagar, Oct 23:  High Court held that prosecution has done illegalities and irregularities while seizing contraband substance from accused persons which led to their acquittal.
Hearing a Criminal Acquittal Appeal filed by the State challenging the  judgment of trial court arising out of FIR No. 105/2003 under Section 18/29 of the Narcotics Drugs Psychotropic Substances Act, 1985 read with Section 39/207 of the Motor Vehicles Act of 1988.
The trial court acquitted six accused as the prosecution could not prove their guilt. The trial was conducted and completed in respect of only four persons while as other two have absconded and, therefore, the trial could not proceed in so far as they are concerned.
The Division Bench of Chief Justice Badar Durrez Ahmad and Justice Ali Mohammad Magrey while dismissing the appeal of prosecution challenging the acquittal of accused persons said apart from other lacunas, one more thing is the bags which were allegedly seized were not sealed on the spot.
“In fact, there is evidence of even the prosecution witnesses that the bags were opened in the police station. This is indicative of tampering with the alleged contraband itself. In these circumstances, apart from the other illegalities and irregularities of non-compliance with the provisions of sections 52, 55 and 57 of the NDPS Act., the case for the prosecution does not hold any water at all”, DB recorded.
Court also said, it is clear that it is not established by cogent evidence on record as to whether the articles seized were contraband or not. That being the case, there is no question of operation of the NDPS Act and for the respondents to be found guilty of any of the offences under Section 18/29 of the Act.
“There is absolutely no reason for us to interfere with the judgment of acquittal delivered by the  trial court. Consequently, the appeal is dismissed”, DB concluded.
The prosecution states Sub Divisional Police Officer, Awantipora, while checking the vehicles on the National Highway at Namblabal, intercepted a truck which did not have any registration number displayed either in the front or the rear.
The truck was searched and 14 bags of poppy husk powder were recovered. These 14 bags were allegedly concealed in a box which had been fabricated and placed between the body of the truck and the tool box.
The investigation of the case was taken up and  after completion of the investigation, the charge sheet was filed in the court against the accused persons under Section 18/29 of the NDPS Act.
DB after examining entire evidence available on record, said, the trial court found that the prosecution was unable to prove its case and, therefore, acquitted the accused persons.
Court while referring various rulings from Supreme Court said, the order of acquittal should not generally be interfered with because the presumption of innocence of the accused is strengthened by the acquittal order.
“Normally, in a case where admissible  evidence is ignored by the trial court, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not”, DB said.
As the Supreme Court pointed out, the principle to be followed by the appellate court, considering an appeal against the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.
DB further added that counsel for the State has not been able to point out any instance where admissible evidence has been ignored by the trial court. “Secondly, it has not been indicated as to how the trial court’s decision is unreasonable or the findings returned by the trial court are perverse. In such an eventuality it is not at all necessary for us to re-appreciate the evidence in order to come to a different conclusion”, CJ and Justice Magrey said.

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