Srinagar, Nov 03, KDC: The Special Court for NDPS Cases in Srinagar has acquitted a Batamaloo resident accused of trafficking codeine syrup and psychotropic capsules, holding that irreconcilable contradictions among police witnesses, failure to prove the chain of custody, and non-compliance with statutory sampling safeguards shattered the prosecution’s case.
“Before parting, it is considered appropriate to observe that the lapses noticed in this case, namely the failure to prepare and certify an inventory and photographs under Section 52A of the NDPS Act, the failure to place identification marks on the seized articles, the failure to deposit the seal used and to maintain and prove the malkhana record, and the failure to obtain a quantitative analysis, are lapses of the investigating agency and not of the witnesses, and they have resulted in the prosecution of a case under a special statute failing for want of proof,” the Court of Special Judge (NDPS Cases), Srinagar, Vinod Kumar said while pronouncing the judgement.
“A copy of this judgment shall be forwarded to the Senior Superintendent of Police, Srinagar for information and for such remedial measures as may be considered appropriate,” it further directed.
According to details, the prosecution had alleged that on September 26, 2022, a police naka party intercepted a Santro car (JK01Q-4057) at Mirak Shah Bus Stand, Batamaloo, and seized 11 bottles (100 ml each) of “Covent-LC” cough syrup and 40 capsules of “Spasmo Proxyvon Plus” from its driver, Abdul Hai Bhat of Diyarwani, Batamaloo.
Following the transmission of a docket by the naka in-charge, FIR No. 145 of 2022 was registered at Police Station Batamaloo under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, along with Section 3/181 of the Motor Vehicles Act for failing to produce a driving licence.
During the trial, the defence counsel contended that the case was manufactured, pointing out that not a single independent civilian witness was joined from the bustling commercial hub.
Scrutinizing the depositions of the official witnesses, the court uncovered severe discrepancies. Witnesses differed on the timing of the interception by several hours, with two personnel placing it in the afternoon past 3:00 PM while another insisted the naka commenced at 8:00 PM. Witnesses were equally divided over who conducted the physical search and whether the medicines were retrieved from the dashboard or from beneath the driver’s seat.
The integrity of the seizure suffered further damage when the seizing officer and an attesting witness contradicted the Investigating Officer by testifying that the seizure memo was drawn up at the police station rather than on the spot, and that the contraband was sealed in their absence. The prosecution also failed to produce the IO’s seal or summon the malkhana in-charge with register entries to account for the safe custody of the parcels between September 26 and September 29, 2022.
The court further noted that the 40 capsules were never produced in court during trial, the remaining eight bottles bore no unique identification marks other than commercial paper labels, and the chemical examiner’s report was purely qualitative without quantitative analysis.
Addressing the cumulative effect of these evidentiary infirmities under Section 52A, the court held,”The case rests entirely on the testimony of five members of the naka party and of the Investigating Officer. These witnesses give irreconcilable accounts of the time of the recovery, differing by several hours; of the person who searched the vehicle; and of the place in the vehicle from which the contraband was taken out… Their cumulative effect is to create a reasonable doubt as to whether the material analysed by the FSL is the material alleged to have been recovered from the accused, and therefore as to the recovery itself.”
Dismissing the accompanying Motor Vehicles Act charge on the ground that an on-the-spot failure to produce a document does not prove the non-existence of an effective licence, the court acquitted Bhat under Section 235(1) CrPC and ordered his immediate release from custody.
During the trial, the Union Territory of Jammu and Kashmir was represented by Special Public Prosecutor Qazi Abid, while the accused was defended by Advocate Mir Urfi alongside Advocates Waheed and Zia Ul Rehman. (KDC)
