Miserably Failed to Prove Its Case: Failure to Establish Safe Custody of Seized Contraband & Existing Contradictions in Evidence Sufficient to Acquit Accused in NDPS Case, : J&K High Court
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Puneet Gupta dismissed the appeal filed by the State challenging the acquittal of two individuals in an NDPS case. The Court upheld the trial court’s verdict acquitting the accused of all charges under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Bench held that the prosecution failed to establish the guilt of the accused through cogent and credible evidence, and therefore, found no merit in the State’s appeal.
On 18 February 2010, at approximately 5:00 p.m., a police naka party from Police Station Batote intercepted an oil tanker traveling from Srinagar to Jammu. During the inspection, the police discovered 18 bags containing a substance resembling poppy straw in the central chamber of the vehicle. The vehicle’s driver and conductor, identified as Gurmeet Singh and Rajvinder Singh respectively, were detained on the spot.
Following the interception, Sub-Inspector Maqsood Ahmad dispatched a docket to Police Station Batote via Constable Abdul Rashid. FIR No. 21/2010 was subsequently registered under Section 8/15 of the NDPS Act. The investigation was undertaken by Inspector Ghulam Nabi Mir, then Station House Officer, who seized the suspected contraband in the presence of witnesses.
Samples were taken from the seized substance, and the materials were sent to the Forensic Science Laboratory (FSL) for examination. According to the FSL report, the tested samples confirmed the presence of poppy straw. Naib Tehsildar Abdul Rashid Rather was involved in resealing the samples. Based on this evidence, a charge sheet was filed, and trial proceedings commenced in the Sessions Court at Ramban.
Charges were formally framed under Section 15 of the NDPS Act on 1 January 2011. The accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses, including police personnel, the investigating officer, the Executive Magistrate, and an FSL official. These witnesses included SI Maqsood Ahmad (PW-1), Constable Abdul Rashid (PW-5), Abdul Rashid Rather (PW-8), and Inspector Ghulam Nabi Mir (PW-9). The defence did not produce any witnesses.
Despite the prosecution's efforts, the trial court found inconsistencies in the evidence. It was noted that although 18 samples were allegedly collected from the 18 seized bags, only nine were received by the FSL. Furthermore, the resealing process lacked clarity. The Executive Magistrate who resealed the samples stated that he did so the following day in his office, not at the scene, even though he had been present during the seizure.
The trial court also found a lack of documentary evidence showing that the samples had been properly stored in the malkhana (police storeroom). No malkhana register or testimony from the malkhana in-charge was produced to demonstrate the chain of custody. In view of these evidentiary gaps, the trial court acquitted the accused on 9 October 2012.
The State appealed the acquittal, contending that the trial court had placed undue weight on minor discrepancies and failed to properly evaluate the prosecution’s evidence. It argued that the chain of custody was intact and that the evidence was sufficient to warrant conviction under the NDPS Act.
“The evidence on record, as is rightly observed by the trial Court, does not connect the respondents with the commission of offence.” The Court examined the record and agreed with the trial court’s conclusions. It found that crucial independent witnesses, such as the two laborers who assisted in uploading the seized bags, were not presented as prosecution witnesses. “The two labourers who assisted the police in uploading the contraband have not been named as prosecution witnesses nor their statements have been recorded before the trial Court.”
The Division Bench further noted the discrepancies between witness testimonies. “As per PW-9, Inspector Ghulam Nabi Mir… 18 samples were taken… however, as per the deposition of PW-7 Pawan Abrol, ASO, FSL, Jammu, he has received only 09 samples.” The Court observed that this contradiction went unexplained by the investigating officer.
Another point of concern involved the sealing and resealing of samples. “As per PW-8, Abdul Rashid Rather, Executive Magistrate… he did not reseal the samples on spot and rather, he sealed the samples in his office on the next day.” This contradicted the claim of immediate deposition in the malkhana and the absence of supporting documents such as the malkhana register. The Bench stated: “There is nothing on record to show as to how the samples which were deposited in the Malkhana were taken out for resealing by the Executive Magistrate.”
The Court also scrutinized the safe custody of the samples. “The safe custody of the samples has been put in serious doubt.” The Bench recorded that the prosecution failed to explain why resealing was not done on site, especially when the Executive Magistrate was present. “The Malkhana register, if produced and proved, would have indicated the day and time of the deposit of the samples as also the day and time of taking out of the samples. This, too, has not happened in the case.”
In conclusion, the Court found no cogent explanation for the handling of the evidence, gaps in the chain of custody, and the failure to produce key witnesses or records. “The manner in which the prosecution has been conducted leaves us with no option but to accept the view taken by the trial Court.”
The Court dismissed the appeal filed by the State and upheld the acquittal of the respondents. It held: “We are in agreement with the trial Court that the prosecution has miserably failed to prove its case against the respondents by leading any cogent and credible evidence.”
Further, the Court recorded: “For the reasons given by the trial Court in support of the judgment and the reasons which we have given above, we find no merit in this appeal and the same is, accordingly, dismissed.”
Advocates Representing the Parties
For the Petitioners: Mr. P.D. Singh, Deputy Advocate General
For the Respondents: Mr. A.K. Shan, Advocate
Case Title: State of Jammu and Kashmir vs. Gurmeet Singh and Anr.
Case Number: CRAA No. 9900010/2013
Bench: Justice Sanjeev Kumar, Justice Puneet Gupta
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