Cr. Appeal No. 45/2012 and M.P. No. 56/2012. Case: Ashok Kumar Koul Vs State. Jammu and Kashmir High Court

Case Number:Cr. Appeal No. 45/2012 and M.P. No. 56/2012
Party Name:Ashok Kumar Koul Vs State
Counsel:For Appellant: Rajnesh Oswal, Advocate and For Respondents: S.S. Nanda, Sr. A.A.G.
Judges:Mohammad Yaqoob Mir and B.S. Walia, JJ.
Issue:Criminal Law
Judgement Date:February 03, 2017
Court:Jammu and Kashmir High Court
 
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Judgment:

Mohammad Yaqoob Mir, J.

  1. Appellant has been convicted for having committed the offence punishable under Section 20(b)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1988 (NDPS Act, for short). Vide order dated 28.04.2012 has been sentenced to rigorous imprisonment for a period of twenty (20) years and fine to the tune of Rs. 1,00,000/- (one lac), in default has to suffer rigorous imprisonment for period of three years.

  2. According to learned counsel for the appellant, the judgment is contrary to the evidence, law and facts; mis-appreciation of evidence and then non-application of mind is quite apparent from the judgment itself.

  3. According to learned Senior Additional Advocate General, three (3) kilograms of Charas have been recovered from the appellant (accused). Persons dealing in the business of Charas deserve to be dealt with sternly as has been done by the learned trial court by awarding severe rigorous imprisonment of twenty (20) years and fine of Rupees one lac (Rs. 1,00,000/-).

  4. Keeping in view the severity of the punishment awarded, seriousness of the offence allegedly committed and the rival submissions of the learned counsel for the parties, we have bestowed our consideration to the facts, circumstances and have also perused the evidence. It would be advantageous to precisely state as to what the case of the prosecution is and the evidence produced in support thereof.

  5. On 11.10.2007, police party headed by SHO left in a government vehicle (Gypsy) at about 3 P.M. for patrolling while reaching near to Geeta Mandir, Bakshi Nagar, a person carrying a white bag on his shoulder was coming out of a street who while spotting the police Gypsy turned back towards the street. On suspicion, the police party caught hold of him, on enquiry, the person disclosed his name as Ashok Kumar Koul, S/o. Prithvi Nath Koul, a Kasmiri Pandit, R/o. Budgam Kashmir residing in a rented house No. 176 at Bakshi Nagar. During the enquiry, number of persons from the nearby area assembled and in presence of those civilians on search, from the bag, cotton and one sky colour envelope was recovered, on opening thirty six (36) pieces wrapped in maize covers were recovered, further from the pocket of the pant worn by the accused, two (02) pieces wrapped in maize covers were also recovered. On request of the SHO, SDPO also reached on spot, the Charas recovered was photographed, was also weighed in presence of SDPO and the civilian persons. The total weight of the recovered material including the maize covers was Three (03) kilograms which was seized. Small small quantity from the said recovered pieces, weighing one hundred (100) grams as sample were taken for chemical examination. The said sample weighing one hundred (100) grams was sealed on spot with a mark B and rest of Charas was marked as A.

  6. The SHO had sent the docket to the police station with the said details based on which case was registered as FIR No. 137/07, P/S. Bakshi Nagar for commission of offence under Section 20 NDPS Act. The investigation was entrusted to Shri Rattan Singh, SI who came on spot, prepared the site map, also seized one sealed packet, i.e. sample of Charas weighing one hundred (100) grams, seizure memo and Superdnama were also seized, statements of the witnesses were recorded, on conclusion of investigation, accused was found to have committed the offence punishable under Section 20 of the NDPS Act. The sample was sent to the FSL, report of the FSL was obtained in terms whereof the offence under Section 20 NDPS Act was established.

  7. Charge was framed against the accused by the trial court vide its order dated 07.03.2008 to which accused pleaded not guilty. Prosecution thereafter in support of its case out of listed 11 Prosecution witnesses produced, five witnesses who were examined. Learned trial court in its order dated 25.11.2011 has recorded that despite numerous opportunities for production of all the prosecution witnesses, calendars were fixed, not availed therefore closed the prosecution evidence.

  8. Accused has been examined in terms of Section 342 Cr.P.C. wherein accused denied complicity in the crime, claimed to be innocent and has also added that witness Pammy Kumar and Anil Kumar got him arrested in a wrong case on the basis of enmity pursuant to a conspiracy he has been involved when he is innocent.

  9. The trial court had asked the accused to enter upon the defence but the counsel for the accused had made a statement that accused will not lead any evidence in defence.

  10. What will be the effect of withholding Six (6) listed prosecution witnesses would be looked into hereinafter.

  11. It would be appropriate to precisely notice the material depositions of the five prosecution witnesses who have been examined.

    Prosecution Witnesses:

    P.W. Rakesh Kumar has stated that on 11.10.2007 at about 3 PM, he was on patrol duty with SHO, while reaching near to Geeta Mandir at Bakshi Nagar, a person carrying Gunny Bag on his shoulder was coming from a street. While noticing police vehicle (Gypsy) tried to hide himself, SHO got suspicious and asked to nab the said person, he (witness) alongwith other ran and caught and brought him before the SHO, in the meanwhile some civilians came on spot, SHO asked the name of the person. The gunny bag was searched in presence of the civilian persons, cotton and...

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