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| DB stresses for framing of rules for cases related to NDPS Act | | | Early Times Report
JAMMU, Mar 11: A division bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Mohan Lal while dismissing the appeal filed by the UT against the acquittal in NDPS, directed respondents to put a mechanism in place so that the provisions of NDPS Act and the rules framed are strictly adhered to and the Standard Operating Procedure(s) issued by the Home Department vide Circular No. 2-Home of 2017 dated 25-9-2017 and a Circular No.01 of 2018 dated 19-11-2018 is strictly followed.
The DB directed the respondents to do well to have a proper selection procedure in place to select and appoint competent public prosecutors. We cannot shut our eyes to the fact that menace of drug trafficking and consumption of drugs in the UT of Jammu and Kashmir is fast gripping in and it is high time that all the Authorities responsible for investigation and prosecution of the cases under NDSP Act are well equipped and educated to handle the investigations and prosecutions, the DB observed.
The DB said that sporadic seminars and webinars aimed at educating the investigating officers and the public prosecutors are not sufficient to meet the challenge(s). There ought to be regular workshops to be conducted by the police within or outside the UT of Jammu and Kashmir, so that the Investigating Officers are professionally trained to conduct these investigations. What, however, is lacking completely is the accountability.
The DB directed that the Department of Home, UT of Jammu and Kashmir, Director General of Police, J&K and the Director General Prosecution shall do well to find out as to in how many cases an effort has been made by the police to find out the origin and the destination of the contraband seized while in transit. DB observed that we are sure that an honest enquiry, if any made, in this regard would reveal some sort of connivance between some of the police officers/officials and the drug mafia. In the instant case, Enquiry Officer, however, has, as expected, given clean chit to the police, but we leave it to the wisdom of the authorities who are responsible to maintain law and order to look into this aspect with some more seriousness.
The DB directed Registry to send copy of judgment to the Secretary to Govt., Home Department, Director General of Police, Secretary to Govt., Law Department and Director General Prosecution. This significant judgment has been passed in a appeal filed by the UT aggrieved by the judgment of acquittal dated 26-12-2013 recorded by the Principal Sessions Judge, Jammu ["the trial Court"] whereby the respondents have been acquitted of the charges under Sections 8/20/60 of Narcotic Drugs and Psychotropic Substances Act 1985, ["NDPS Act"], and has prayed for leave to appeal.
A police party of Police Station, Nagrota was on patrol duty at Ban Talab, Nagrota. During the course of checking of vehicles at about 5:00 pm, they stopped a vehicle Xylo bearing registration number JK03C-4188 which was coming from Srinagar. Two passengers along with a driver were travelling in the said vehicle. The driver disclosed his name as Mohammad Amin, whereas the two passengers sitting in the vehicles disclosed their names as Ashok Kumar and Deepak Kumar. The vehicle was searched and on search, charas like substance wrapped in a plastic bag was recovered.
None of them could account for the possession and, accordingly, a docket was sent to the police station whereupon FIR No. 257/2011 for the commission of offences under sections 8/20/60 NDPS Act was registered against the respondents and the investigation was set in motion. During the course of investigation, the police seized the vehicle. The charas recovered was weighed and it was found that 4 kgs and 2 kgs of charas respectively were being ferried whereas the driver Mohd Amin was carrying charas weighing 4 kgs and 500 gms which they had concealed in the dickey of the vehicle. The sample of 100 gms each was taken and sent for chemical examination. Upon receipt of report of the chemical examiner that the seized item was charas, the investigation was completed and the final report submitted in the competent court of jurisdiction.
The DB observed that needless to point out that with a view to bring home the charge under NDPS Act, more particularly under the sections with which the respondents had been charge-sheeted, the recovery of contraband from them is a sine quo non. The next important step is to seal the contraband in a manner that its safety is not compromised in any manner. It is for the Investigating officer to further ensure that the seized contraband which is properly sealed reaches safely before the FSL for chemical examination and that there is no room or scope for any opportunity to anybody to tamper with the seized contraband. The examination of seized material by the FSL follows steps like proper seizure of the contraband and sealing, picking up of the samples of required quantity from the seized item, re-sealing them in presence of Executive Magistrate and then sending them to the FSL without any further waste of time.
The DB observed that in such cases the seizure is required to be proved beyond reasonable doubt and it is for the prosecution to establish by leading cogent and convincing evidence that the item, which was found to be a contraband by the FSL, was actually seized from the conscious possession of the accused. In the instant case, as we have discussed above briefly, the prosecution has miserably failed to prove the seizure. Once the seizure of the contraband is not proved, which is the foundation of a NDPS case, the rest of the edifice built thereon by the prosecution is bound to fall.
The DB observed that having noticed the aforesaid serious flaws in the investigation and complete inapt handling of prosecution by the applicant/appellant, this Court vide its order dated 27-11-2019 directed the Secretary to the Government, Home Department of UT of Jammu and Kashmir to send a list of three senior officers out of which this Court may entrust the enquiry to anyone of them. The enquiry was directed to find out the lapses in the investigation and the connivance, if any, of the police with the drug mafia. From the list of officers sent by the Home Department, this Court vide order dated 13-12-2019 appointed Sayed Ahfadul Mujtaba, IPS to conduct an enquiry into the whole matter and to pin point the guilt of the concerned officers/officials. The Enquiry Officer has submitted the enquiry report. The Enquiry Officer has given clean chit to the police insofar as the apprehension of this Court of the police acting in connivance with drug mafia is concerned. The Enquiry Officer, however, has concluded that the prosecution failed to prove its case before the Court because of inexperience and lack of professional and technical know-how required for investigation of a case under NDSP Act. The Enquiry Officer too has concluded that failure of the PP, who conducted the prosecution case in a slip-shod manner, has also contributed in failure of case before the Court of law. From the discussion which we have made above and having regard to the enquiry report submitted by the Enquiry Officer, we have noticed the following serious flaws in the investigation compounded further by a totally unprofessional prosecution conducted by the PP. |
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