SRINAGAR: The Jammu and Kashmir and Ladakh High Court has acquitted two men convicted in a heroin case, setting aside their 10-year prison sentences after finding that material contradictions in the prosecution evidence cast reasonable doubt on the alleged recovery of narcotics and compliance with mandatory safeguards under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Justice Sanjay Parihar, in a judgment dated October 1, allowed the appeal filed by Mohammad Shafi Lone and Bilal Ahmad Dar against their conviction by the Additional District and Sessions Judge, Kupwara, on May 24, 2023. The High Court directed that Dar, who was stated to be in custody, be released forthwith unless required in another case or under any other lawful order. Lone, who was on bail, was discharged from his bail bonds.
The appellants had been convicted under Sections 8 and 21 of the NDPS Act and sentenced to 10 years of rigorous imprisonment each, along with a fine of Rs 1 lakh each. The trial court had also ordered an additional two-and-a-half years of rigorous imprisonment in default of payment of the fine.
The High Court found that the prosecution had failed to establish beyond reasonable doubt that the contraband was recovered from the personal possession of the appellants in the manner alleged. It held that the discrepancy between the police version and the testimony of the Executive Magistrate associated with the search concerned a fundamental aspect of the case rather than a minor inconsistency.
According to the prosecution, Inspector Mushtaq Ahmad of the Anti-Narcotic Task Force received information on December 10, 2020, that two persons travelling in a vehicle bearing registration number HP22E-5622 were carrying narcotics towards Drugmulla in Kupwara district for sale.
A police team intercepted the vehicle at Bramri Chowk, Drugmulla, near a private clinic. Bilal Ahmad Dar was driving, while Mohammad Shafi Lone was travelling with him.
The prosecution maintained that nothing incriminating was recovered from the vehicle and that the contraband was subsequently found during the personal searches of the two men in the presence of an Executive Magistrate First Class.
It alleged that 435 grams of heroin were recovered from Lone and 372 grams from Dar. The seized substances were weighed, sealed and sampled before being sent for forensic examination. The laboratory report confirmed the presence of diacetylmorphine, the principal psychoactive substance in heroin.
However, the High Court found that the testimony of Executive Magistrate First Class Aijaz Ahmad Khan contradicted the prosecution’s account of the recovery.
Khan, who was examined as a prosecution witness, stated that two polythene pouches had been recovered from the vehicle. During cross-examination, he said he had asked the police personnel to search the accused but could not recall whether anything had been recovered from their personal searches.
The court observed that the distinction was crucial because the prosecution’s claim of personal recovery formed the basis of its reliance on Section 50 of the NDPS Act, which provides safeguards relating to the search of a person suspected of possessing narcotic substances.
It rejected the prosecution’s argument that the discrepancy was minor, observing that the two versions presented materially different accounts of the alleged recovery. The court also noted that the prosecution had not declared the Executive Magistrate hostile over his statement that the contraband had been recovered from the vehicle.
The court further found deficiencies in the evidence concerning compliance with Section 50. The alleged option or consent forms did not bear the appellants’ signatures and had not been duly proved as substantive evidence during the trial.
Inspector Nisar Ahmad, who testified about the search, admitted that the appellants’ signatures had not been obtained on the consent memorandum and that no civilian witness had been associated when the alleged option was offered to them.
Another prosecution witness, Constable Sharief-u-Din, stated that the appellants had not been given an option regarding the manner in which their searches were to be conducted.
The court held that the mere presence of an Executive Magistrate at the site could not, by itself, establish that the accused had been informed of their statutory rights or had consciously exercised the option to be searched before a Magistrate or a Gazetted Officer.
It also found that the trial court had placed considerable reliance on the Magistrate’s presence as an assurance of fairness without adequately addressing his testimony contradicting the prosecution’s central claim.
Referring to the Supreme Court’s judgments in State of Rajasthan v. Parmanand and Arif Khan alias Agha Khan v. State of Uttarakhand, the High Court reiterated the importance of compliance with Section 50 when a prosecution relies on recovery from personal search.
The court clarified that its decision did not rest merely on the absence of independent civilian witnesses or on the fact that the prosecution witnesses were police personnel. Rather, it was the cumulative effect of the material contradictions, deficiencies in the alleged consent documents and conflicting testimony regarding the search that undermined the prosecution’s case.
The High Court also examined the reliance placed by the trial court on Section 54 of the NDPS Act, which provides for a statutory presumption in specified circumstances involving possession of narcotic substances.
It held that such a presumption could not replace proof of the foundational facts necessary for its application. Since the alleged recovery itself had become doubtful, the presumption could not be used to sustain the convictions.
Although the forensic report established that the samples contained diacetylmorphine, the court observed that this did not independently establish that the substance had been recovered from the appellants in the manner alleged. It therefore found it unnecessary to conclusively determine the separate challenge concerning the absence of the drug’s concentration or percentage in the forensic report.
The court also declined to rest its decision on the challenge to compliance with Section 42 of the NDPS Act, observing that even if the prosecution were given the benefit of assuming compliance on the basis of the written information placed on record, the fundamental doubts surrounding the recovery and Section 50 remained unresolved.
Similarly, it did not consider it necessary to record definitive findings on the separate objections concerning Sections 55 and 57 of the Act and the preservation and transmission of the seized material for forensic examination.
Concluding that the prosecution had failed to prove the charges beyond reasonable doubt, the High Court set aside the conviction and sentence imposed on both appellants and acquitted them by extending the benefit of doubt.
The court directed the Registry to send the trial court record, along with a copy of the judgment, to the court concerned for information and compliance. All pending applications were also disposed of.
