Excelsior Correspondent
SRINAGAR, June 11: Observing that the prosecution has not been able to prove the case against the person for drug trafficking, the Division Bench of High Court set-aside the sentence awarded by the trial court and acquitted him from the charges with the direction to authorities to release him from the custody.
“We are of the considered view that because of the material discrepancies as well as contradictions in the evidence of the official witnesses with regard to the recovery of the contraband and improper investigation, the prosecution has not been able to prove the appellant as guilty beyond reasonable doubt and as such appellant is entitled to benefit of doubt”, Division Bench of Justice D S Thakur and Justice Rajnesh Oswal concluded.
The DB has allowed the appeal of one Mohammad Maqbool Lone who was accused of being involved in drug trafficking and set aside the judgment passed in 2015 by the trial court whereby the appellant-Lone was convicted in a complaint titled “Intelligence Officer, Narcotics Control Bureau v/s Mohd Maqbul lone”. Court dismissed the basic complaint of the Narcotics Control Bureau also and acquitted the accused from the charges.
The appellant-Lone was convicted by the Sessions Judge Kathua for commission of offence under Section 8(c) of the NDPS Act read with Sections 20(b) & (c) of the NDPS Act and sentenced him to rigorous imprisonment for 20 years and payment of fine of Rs. 2 lakh.
The complaint was filed by an Intelligence Officer (IO) of Narcotics Department against the appellant-Lone for commission of offences under NDPS Act in which it was stated that the secret information was received from the source that Drug Trafficking from Kashmir Valley to Delhi in a truck is going on and the supply of drug may be in Transported to Delhi.
While searching some packets were taken out of the apple box in the vehicle and counted 08 in number and all the packets were wrapped with brown coloured packing tape and the transparent polythene containing total 32 small black coloured balls, was found and after testing were found to be charas weighing 14.97 Kgs.
While examining the case court said that as per complaint it was one of the prosecution witness who recovered the contraband from the truck but he in his deposition stated that the team recovered charas from truck. Court said it is astonishing as to how the team could identify the apple box having contraband from amongst the 117 apple boxes without opening any other apple box as prosecution witness has admitted that none of the 117 apple boxes was opened.
The burden of proof court said, cast on the accused under Section 35 of the Act can be discharged through different modes and one is that he can rely on the materials available in the prosecution evidence and in addition to that, he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt.
“In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence”, reads the judgment.
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