Mohammad Amin Reshi through Mrs v. State of J&K through SHO P/S Udhampur

Judgment

The present appeal has been filed by the appellants who are aggrieved by the judgment dated 14.08.2013 passed in FIR No. 190 of 2011 of Police Station Udhampur for offences under Section 8/20/29 of the NDPS Act read with 467, 468 and 471 of the RPC. The appellants were convicted for the aforementioned offence and sentenced to suffer 15 years (Appellant Sajad Ahmad Bhat) and 10 years (Appellant Mohammad Amin Reshi). It would be relevant to mention here that the offence under RPC are specific and exclusive to the appellant Sajad Ahmad Bhat. The brief facts of the case are as follows.

2. On 21.8.2011, police personnel from Police Station Udhampur had put up a check post on the Srinagar Jammu Highway and flagged down a vehicle at random at 1205 hours. ASI Saif Ali who was heading the Police party examined the vehicle and below the speakers housed in the rear part of the vehicle, found one packet, which when opened revealed a contraband like substance.

3. It is further the case of the prosecution that ASI Saif Ali immediately send intimation to the Police Station whereafter the SHO Gyan Chand (investigating officer) came to the scene and carried out the rest of the CRA17/2013 Page 1 of 11 Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 seizure. In all the police had recovered in 24 packets containing 343 balls weighing 41.5 Kgs. The Appellant Sajad Ahmad Bhat was arrested and his 27 memorandum was recorded in which he stated that he is merely the transporter taking the contraband to the final destination at Pathankot and that the main accused is Mohammad Amin Reshi at whose behest he is transporting the said contraband material. It is relevant to mention that in the vehicle only Sajad Ahmad Bhat was travelling. Upon the disclosure made by Sajad Ahmad Bhat, the personnel of Police Station Udhampur came

to Srinagar and on 15.9.2011 set up a road block at Bijbehara near Anantnag and at round 6:30 AM, appellant Mohammad Amin Reshi was passing by that way was stopped and from his Motor cycle 900 gram of Charas was stated to have been seized . The prosecution examined 15 out of 17 witnesses.

4. The only thing to be seen by this court after perusing and examining the statement of the prosecution witnesses and the documents filed therewith as exhibits, is to see whether the strict provisions and safeguards of the NDPS Act had been complied with and whether it could be said on the basis of the material disclosed in the course of the trial that the prosecution has been able to prove the guilt against the appellants herein beyond reasonable doubt. Sitting in its appellate jurisdiction, this court does not deem it necessary to re-examine threadbare each and every statement given by each of the witnesses but rather summarize the entire case of the prosecution as disclosed by the witnesses.

5. Learned counsel for the appellant has submitted that the investigation has been conducted in a manner which does not need strict compliance of the provision of the NDPS Act 1985 (hereinafter referred to the act of 1985). He further submits that in the case of Sajad Ahmad Bhat his arrest memo, which was prepared at the time of his arrest, has been signed by him whereas the arrest memo of Mohammad Amin Reshi has not been signed by the said appellant.

6. We have examined the two arrest memos from the original trial Court record and find that the statement put forth by the learned counsel for the appellant is correct. On that basis, he submits that the 900 gram of alleged Charas seized from Mohammad Amin Reshi on the same date of his arrest Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 2 of 11 itself is suspect whether the same has been seized from the appellant in question as the arrest memo, a primary document would go to show that he was not in the custody of the police on the date on which it was prepared as it was never signed by the said appellant. In both these arrest memos, there are no independent witnesses and the witnesses are police witnesses.

7. Further, learned counsel for the appellant has also pointed out that the seizure memo that was prepared in August 2011 after the arrest of appellant Sajad Ahmad Bhat bears the signature of three independent witnesses, while the seizure memo prepared as against appellant Mohammad Amin Reshi in the month of September 2011 do not bear the signatures of any independent witnesses and the witnesses are police witnesses.

8. We have examined the seizure memos from the original trial Court record of both the appellant and have found the statement to be correct. Learned counsel for the appellant has further submitted that there was no strict adherence to the procedure laid down in section 52-A (2) with regard to the certification of the Magistrate. In this regard learned counsel for the appellant with reference to sub section 1 of Section 52 A has argued that the contraband substances which are seized by the police or the investigating agency is mandated by the act of 1985 to be disposed of in the most expeditious manner.

9. However, before disposal of the said material, the procedure laid down in Sub Section 2 has to be followed stringently. We have gone through the Sub Section 2 which inter-alia requires the certification of the Magistrate to the effect that an inventory had been prepared by the Police with regard to the contraband giving details all the description quality, quantity, mode of packing marks, numbers or such other identifying particulars. It also required that in the presence of the Magistrate photographs of the contraband material had to be taken and the Magistrate had to certify such photographs to be true. Further, the representative samples of such drugs should be drawn in the presence of the Magistrate who would certify the correctness of the list of samples so drawn.

10. As regards the importance of this procedure, learned counsel for the appellant has drawn the attention of this Court to sub clause 4 which starts with the non obstante clause whereby, irrespective of whatever was laid Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 3 of 11 down in the Indian Evidence Act, every trial court trying such an offence under the NDPS Act, shall treat the inventory, the photographs and any list of samples drawn under sub section 2 and certified by the Magistrate as primary evidence, in respect of such offence. He has stated that no such certification exists.

11. We have gone through the trial Court record in-extenso. We have not been able to find any certificate issued under section 52-A (2) requiring the said certification to be made and prepared in the manner mentioned in the said Sub Section.

12. The learned counsel for the appellant has also draw attention of this court to the evidence of the FSL experts as given by them before the trial Court and also with reference to the reports and has stated that the statement and the report of the FSL experts do not fulfill the requirement of section 51 of the Indian Evidence Act and therefore the same cannot be relied upon to arrive at a finding that the material that was examined by them was the contraband Charas.

13. Learned counsel for the State on the other hand submits that the order passed by the learned trial Court is a well considered order and has examined and appreciated the evidence of the prosecution in its correct perspective and its inferences based upon the said evidence is just and proper and, therefore, there is no need to interfere with the order of the learned Trail Court. He has further submitted that all the provision of the NDPS Act have been complied with in toto and has disagreed with the argument of the counsel for the appellant.

14. In the course of the argument, this court had put up a question to learned counsel for the UT to the effect that the contraband that was allegedly seized from the appellant Sajad Ahmad Bhat were 343 separate units (small balls) but the sample was taken not from each of those balls. Learned counsel for the State has referred to the relevant statements of prosecution witness Saif Ali Shah and the investigating officer Gyan Chand.

15. We have gone through the respective statements. Gayan Chand in his examination in chief has stated that sample was taken from each of the 343 balls and thereafter, two sets of samples of 100grams of each was prepared. Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 4 of 11 On a direct question, to the learned counsel that if there were 343 separate balls of the alleged contraband, was it not essential to take two samples from each of those balls one part to be retained by the Police and the other be sent to the FSL laboratory? Learned counsel for the State has argued that mixing of the sample taken from 343 separate ball together and, thereafter, dividing them into two samples and 100 gram each did not render the procedure unlawful as the law in this issue is well settled and no longer res-integra that irrespective of the quantity/percentage of the contraband, the weight of the neutral substance would also be taken into calculate the same as the weight of the contraband substance.

16. As regards the non-compliance of the section 52-A (2), learned counsel for the erstwhile State now UT submits, by drawing our attention to the statement of PW Ved Prakash, who was Executive Magistrate, who had stated in his evidence, that on 23.8.2011 two packets which were marked as one and two were produced before him for resealing and which were resealed and he issued an authority letter which was exhibit P.14 and again another packet was produced before him on 16-9-2011 for resealing which this witness resealed and issued the authority letter exhibit P-14/1. Accordingly, to the learned counsel for the State, the evidence of PW Ved Prakash goes to show that there was substantial compliance with Section 52- A (2).

17. As regards the FSL reports and the testimony of the scientists before the trial Court where they were examined as prosecution witnesses, learned counsel for the State has argued that their reports and their testimonies disclosed clearly that the substances examined by them contain the contraband Charas.

18. This Court pointed out to the learned counsel for the State that both these expert witnesses from the FSL do not mention in the report or in their testimony before the trial Court the process by which they examined the samples, the reagents used by them, the science behind the test and whether such omission be non-compliance of Section 51 of the Evidence Act? Heard learned counsel for the parties.

19. The date of the first recovery from the appellant Sajad Ahmad Bhat is

21.08.2011. The personnel of P/S Udhampur had carried out Naka Bandi on CRA17/2013 Page 5 of 11 Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 the road to Jammu from Srinagar where on suspicion they flagged down the vehicle in which the appellant Sajad Ahmad Bhat was travelling and from him 41.5 KG of suspected Charas in 24 packets which were in the form of 343 separate balls were allegedly recovered. The investigating officer hence deposed before the trial Court that he had taken a sample from each of the 343 balls and thereafter prepared 2 samples of 100 grams each. The statement of the IO has not been controverted in cross-examination.

20. Subsequently, on 15.09.2011, the appellant Mohd Amin Reshi was also apprehended by the personnel of P/S Udhampur at Bijbehara Anantnag where they had set up a road block and the search of his motor cycle allegedly unearthed 900 grams of Charas. The testimony of PW Ved Prakash who is the executive Magistrate 1st Class reveals that on 23.08.2011, 2 packets were produced before him for resealing. He says he resealed the packet and issued the authority letter (with which the same was send to the FSL) and later on 16.09.2011 one sealed packet was produced before him which he resealed and issued the authority letter exhibit P 14/1.

21. The provisions of Section 52-A (2) require that the Investigating Officer to prepare an inventory of the contraband, giving details and the description, inter-alia of quality, quantity and also move an application to any Magistrate for certifying the correctness of the inventory so prepared or, take in the presence of the Magistrate, photographs of such drugs, who was to certify those photographs as true or allowing the Investigating Officer to draw representative samples of such drugs or substances in presence of such Magistrate who shall then certify the correctness of any such list of samples so drawn. Thereafter, the magistrate was under the duty to allow the application as soon as possible and such certification of the Magistrate would have the value of primary evidence in a Court of law notwithstanding anything else in the Indian Evidence Act.

22. The stringent requirement of Section 52-A(2) is because of the said Section mandates the expeditious disposal or the destruction of the contraband material to ensure that there is no pilferage from police custody which may find its way into the society once again. This would also need the absence of the material object (drugs so seized under the NDPS Act) which could be produced before the learned trail Court which could visually Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 6 of 11 appreciate that what was seized by the Police on the date of search and seizure was actually the material which was produced before it. It must be understood that once the State proceeds under the mandate of Section 52-A (2) of the NDPS Act, there is no possibility of learned trial Court verifying the quality, quantum (weight), and the nature of the drug that was seized. In such a situation, the learned trial Court has only two documents of seminal importance to appreciate whether what was seized by the Police from the accused was actually what it is said to be. One is the certification of the Magistrate under Section 52-A (2) which would reveal that an authority, independent of the Investigating Agency, has seen the material that was seized by the Police, taken photographs of the same, attested those photographs and issued a certification to that effect which can be appreciated by the learned trial Court on a later date. The other evidence on which the Court can rely upon is the FSL report relating to the tests of the purported contraband material carried out by the FSL Scientists.

23. It is also relevant to mention here that the trial Court is under duty to ascertain the chain of custody of the contraband in order to ascertain that there was no opportunity of contamination of the samples or manipulation of the same when it was transported from the Malkhana of the Police Station to the FSL Laboratory.

24. In this case, the absence of the certification under Section 52-A (2) of the NDPS Act puts a grave doubt of the prosecutions’ case with regard to the material allegedly seized from the appellants herein. The evidence of Mr. Ved Prakash who was the Magistrate and the so called certificates given by him do not comply with the requirements mandated under Section 52-A (2) of the NDPS Act. They only reveal that the IO brought two packets on the first instance for re-sealing and that the Magistrate resealed it and on the second occasion, one packet was brought for resealing which again the Magistrate resealed.

25. Another legal aspect that comes to the mind of this Court in this particular case is that the appellant Mohd Amin Reshi was purportedly arrested pursuant to the 27 memorandum of the appellant Sajad Ahmad Bhat. Besides the 27 memorandum of appellant Sajad Ahmad Bhat, there was no independent evidence in support of the prosecutions case that Mohd Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 7 of 11 Amin Reshi had any involvement in the recovery of the contraband from Sajad Ahmad Bhat on 21.08.2011 near Udhampur. Under the circumstances, the 27 memorandum of Sajad Ahmad bhat was grossly inadequate to examine the involvement of Mohd Amin Reshi in FIR No. 190/2011 on account of the absence of any other independent evidence to show the involvement of appellant Mohd Amin Reshi. The subsequent arrest of Mohd Amin Reshi on 15.09.211 by the personnel of P/S Udhampur where the search of his motor cycle allegedly lead to the recovery of 900 grams of Charas should have lead to the registration of a separate and distinct offence and, therefore, this Court is of the opinion that there was a legal error in trying to both Sajad Ahmad and Mohd Amin Reshi together in FIR No. 190/2011.

26. This court has arrived at this opinion based on the rule of law that it is always the proximate cause that is relevant and not the remote cause in a criminal case which is enshrined in the legal maxim causa proxima non est remota jura spectator. Once Sajad Ahmad Bhat was arrested on 21.08.2011, his 27 memorandum could have only operated again himself and that too only to the extent of recovery of the contraband material seized from the Car he was travelling. Whereas the arrest of Mohd Amin Reshi almost more than 24 days thereafter from Anantnag which is nearly about 200 Kms away from Udhampur when Sajad Ahmad Bhat was arrested was a separate and distinct transaction by itself which was not a continuation of the offence in FIR No. 190/2011 and ought to have lead to the registration of a separate offence against Mohd Amin Reshi alone. Therefore, the inclusion of Mohd Amin Reshi in the trial with Sajad Ahmad Bhat was a mistrial against him and he could not have been made liable or responsible for 41.5 KG of Charas alleged to have been recovered from Sajad Ahmad Bhat as the only piece of evidence as stated earlier hereinabove of the involvement of Mohd Amin Reshi was the 27 memorandum of the co-accused.

27. As regards the arrest memo of the appellant Mohd Amin Reshi, we have found that the same was not signed by the appellant and neither does it bear the thumb impression and besides, the witnesses are not independent witnesses from the independence locality but Police witnesses, the same raises a grave doubt whether Mohd Amin Reshi was in police custody on

15.09.2011 at all as the said arrest memo is not signed by him and neither Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 8 of 11 does it bear his thumb impression. This anomaly was for the prosecution to explain, but it has not besides the fact that the 2 witnesses being Policeman in this case further thickens the cloud of suspicion as no reason has been given by the Police as to why they could not have included independent witnesses from the locality. We are aware that it is trite law that the seizure memo can also be proved if the witnesses are policeman. However, before that can be done, there must be an explanation by the prosecution as to why it did not include independent witnesses during the seizure. Absence of such an explanation by the prosecution may not render the act of the Policeman signing witnesses to the seizure memorandum or the arrest memorandum as unlawful but would raise a doubt on the prosecutions’ case when these fragmented pieces of evidence are connected together. Thus, where the arrest of the appellant Mohd Amin Reshi is itself in doubt, the seizures of 900 grams of Charas effected from the motor cycle also is in doubt.

28. As regards the FSL reports, there are two said reports. The first report is exhibit P.15 dated 22.10.2011 and has been prepared by Mr. Rohit Koul who was also examined as prosecution witnesses. Upon reading the said exhibit, it appears that exhibit I (as received by the FSL Laboratory) the scientists found numerous pieces of greenish black colour material which weighed about 100 grams. The result he gives is as follows: “the exhibit was subjected various chemical, chromatographic, microscopical examinations and the result arrived at is as under: Charas was detected in exhibit No. K-401/2011.” This report is regarding the material that was seized from the appellant Sajad Ahmad Bhat on 21.08.2011.

29. The second FSL report is exhibit P.A dated 31.10.2011 given by scientific officer Pawan Abrol, who was also examined as a prosecution witness. His test relates to the seizure that was allegedly made from appellant Mohd Amin Reshi on 15.09.2011 at Bijbehara Anantnag. The exhibit that was sent to him by the Police, the witness observed in his report, that the sample was greenish black coloured material which the witness marked as exhibit No. P-1625/2011 and that the same weighed 25 grams. The result of the test performed by him is as follows: Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 9 of 11 “the exhibit was subject to various chemical tests, microscopical and chromatographic examination and the result arrived at is as under:- The exhibit No. P1625 was identified as Charas.”

30. Both the results given by two separate Scientific Officers are near identical. The learned trial Court failed to appreciate that the test report was deficient and did not pass the test of Section 51 of the Evidence Act. Section 51 reads as follows:

51. Grounds of opinion, when relevant. “Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.” Illustration. An expert may give an account of experiments performed by him for the purpose of forming his opinion.

31. From Section 51, which has been reproduced hereinabove, this Court understands that the evidence of the expert is in the nature of an opinion and the grounds on which the opinion is based are also relevant. The illustration which has been given to Section 51 highlights the same further where an expert like the Scientific Officer Pawan Abrol and Rohit Koul would have to give an account of the experiments performed by them for the purpose of forming their opinion. However, the experts state that their opinion is based upon chemical tests without giving any details of the nature of the chemical tests that were performed like the reagents used, the name of the tests and the nature of the conclusion of those tests. Besides the chemical tests, the experts says the microscopical examination was also performed, but it does not give any detail of the observation of the expert as to what he saw in the microscopical examination the texture of the material, the nature of its physical constructs when magnified and lastly, the report say that chromatographic examination was also performed but gives no details of the readings of the chromatographic examination or the report of the chromatographic examination. The absence of such explanation renders the result worthless.

32. The importance of Section 51 of the Evidence Act is to be understood where if the defence has to produce an expert to contradict the finding of the Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

20.12.2024 CRA17/2013 Page 10 of 11 expert produced by the prosecution, the basis of the opinion of the expert produced by the prosecution must be available. Thus, the importance of Section 51 cannot be underscored enough as the report of the Scientific Expert of the Forensic Science Laboratory can be accepted and appreciated once exhibited under Section 293 Cr.PC without examining the Scientific Officer who had prepared the said report. However, in this particular case, the scientific officers produced as witnesses, in the Court testimonies do not spell out the procedure, the analysis, the tests, their observations and the result of those tests on the basis of which they opined that the material they had examined was Charas. Therefore, the reports of the FSL do not inspire confidence and ought not to have been relied upon by the learned trial Court. Thus, on the basis of what has argued and considered and held by this Court hereinabove, we are of the opinion that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt and he is acquitted. Notwithstanding the fact that we have held that the trial against Mohd Amin Reshi was a mistrial, this Court has considered whether the same ought to be sent to the learned trial Court for re-trial, however, this Court refrains from doing that for two reasons. Firstly, the trial against Mohd Amin Reshi was mistrial, as no FIR was registered upon his arrest indicting him of the recovery of the alleged contraband from him on 15.09.2011, for which, a separate investigation was not carried out against Mohd Amin Reshi. Secondly, he has undergone more than ten years of his sentence and remanding the case for a retrial would be a travesty of justice.

33. The appellant shall be released forthwith. CRA No. 18/2013 List this appeal separately on 6th March 2025 for further hearing. (MOKSHA KHAJURIA KAZMI) (ATUL SREEDHARAN) JUDGE JUDGE SRINAGAR: 19.12.2024 Aadil Whether approved for reporting? Yes/No Aadil Hussian Bhat I attest to the accuracy and authenticity of this document

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