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| DB allows appeal, acquits accused heroin smuggler | | ’24 years’ conviction, sentence set aside’ | | JAMMU, AUGUST-13 Division Bench of Jammu & Kashmir High Court Jammu wing comprising Justice Virender Singh and Justice Mansoor Ahmed Mir allowed an appeal filed by convict Mohd Ashiqeen who was convicted and sentenced under section 21 to undergo 24 years imprisonment and fine Rs 2 lakh and u/s 23 of the NDPS Act by the then Principal Sessions Judge Jammu on November 22, 2000 and acquitted the appellant. The Bench observed that the prosecution has failed to prove the case and bring guilt home to the accused appellant and it would not be safe to maintain the conviction of the appellant and he must be given the benefit of reasonable doubt.
According to the charge-sheet that on specific information the Intelligence Officers of the Directorate of Revenue Intelligence, a NAKA was laid on September 4, 1997 during the night at the BOP Jabowal in RS Pura Sector headed by Mr. IP Singh, Joint Assistant Director BSF and GS Kapoor Sr. Intelligence Officers of DRI. At10.30 PM the moment of two persons was noticed who had crossed the border from Pakistan. On being challenged, they tried to run back to Pakistan, BSF NAKA party opened fire and one out of the two persons was apprehended with the bag and another escaped in the darkness. The apprehended person disclosed his identity as Mohd Ashiqeen. A search was conducted and during search Rs 9 of Pakistan currency and visiting card of Shahid apart from five packets of brown powder was recovered from the bag. Each packet was found 1.05 KG and total gross weight of five packets was 5.25 KG. Accused after his arrest disclosed the name and identity of the person who had to take the delivery of heroin and in follow up action accused Dildar Ahmed alias Dillon and Som Nath were apprehended at Bus Stand Jammu in the morning of September 5, 1997. After completion of formalities, the challan was produced before the Trial Court, Some Nath accused was discharged and other two accused were tried. The trial resulted in the conviction of accused/appellant Mohd Ashiqeen and accused Dlidar Ahmed acquitted. Failing aggrieved appellant has preferred this appeal. The counsel for the appellant MM Gupta argued that the accused appellant came to be falsely implicated and is innocent. He was neither apprehended at the place of occurrence and nor any thing was found in his possession. On the other hand AAG Mr. BS Salathia defended the impugned judgment and submitted that the discrepancies here and there would not earn acquittal.
In the approved for reporting judgment written by Justice Mansoor Ahmed Mir for the Division Bench while dismissing the case of prosecution observed that prosecution has failed to produce the seized articles and bag before the trial Court and referred a judgment of the Apex Court in which the Apex Court held that the conviction cannot be sustained because of non-production of independent witnesses, seized drugs and Narcotic before the Court. There is also contradiction about the weight of sample which was sent to laboratory. The chemical examiner has reported that net weight of each container was 7.3, 7.1, 7.4, 5.6 and 7.2 grams respectively, as per the prosecution story each container was containing 5 grams. Perhaps sample which came to be examined in the laboratory is not of that article which was seized by the prosecution at the place of occurrence. No explanation is forth coming from DRI.
DB further observed that it is beaten law of the land that when the provisions are stringent, strict is the proof. It is important to note here in that so called confession statement is only signed by two persons, IP Singh is not witness of that statement but in the Court he has deposed that statement of accused was recorded in his presence between 11 to 12 PM on September 4, 1997. Then why he has not witnessed the document is best known to the prosecution. Tajinder Pal Sandhu has deposed that he has recorded the statement of accused Mohd Ashiqeen in presence of Intelligence Officer Sanjay Sarpal. Sanjay Sarpal has stated that statement was made by the accused before him at BSF headquarters. It is not mentioned when and where it was recorded. Section 23 of the Act place its role and comes to operation when it is alleged and proved that Narcotic Drug was imported. There is not an iota of evidence at all. Not to speak of proof that the alleged seized drugs was imported, DB is of the considered view and opinion that the prosecution has failed to prove the case and bring guilt home to the accused as such the appeal is allowed and conviction and sentence set-aside, accused is acquitted and be released forthwith provided he is not required in any other case.
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