Excelsior Correspondent
Srinagar, Oct 3: High Court has upheld the acquittal of three accused persons allegedly involved in preparing and processing of narcotic drugs on a machine, citing mishandling of case by the prosecution.
The acquittal of accused Nazir Ahmad Rather, Mohd Yasin Ganaie and Manzoor Ahmad Ganaie of Tahab, Pulwama by the trial court has been upheld by the Division Bench of Justice Sanjeev Kumar and Justice M Y Wani.
“We are of the view that the trial court has rightly appreciated the law as also the evidence while rendering the impugned judgment. The opinion of the trial court to the effect that prosecution has failed at the trial to establish the guilt of the accused beyond any shadow of doubt, does not call for any interference”, Division Bench concluded by dismissing the appeal filed by the prosecution through SHO Pulwama.
The case of the appellant-prosecution before the trial court was that on 23.06.2007, a reliable information was received by the Police Station, Pulwama to the effect that at Village Tahab, Pulwama, the accused persons have installed a machine and are busy in grinding poppy straw to make “Fuki” for doing the illegal business thereof and some quantity of “Fuki” is lying on spot.
The FIR bearing No. 257/2013 was registered with the Police Station concerned and a raiding party under the supervision of SHO concerned left for the spot, raided the premises and caught all the three red handed.
The DB, after hearing both the parties and perusal of the record, said while the legislature wanted to curb menace of illicit traffic in Narcotic Drugs and Psychotropic Substances with a heavy hand by providing stringent punishment, it was nevertheless conscious of the constitutional requirements that the liberty of an individual must not be lightly curtailed and in order to avoid or lessen the possibility of false implication, it provided sound procedural safeguards.
The court on conjoint reading of the provisions of NDPS Act said, that an officer/official of the State Police Department, who has not obtained warrant for search in terms of the provisions of the Act or is not so authorized by gazetted officer of his department or is not himself a gazetted officer, cannot under any circumstances make search of any building or conveyance or enclosed place.
The SHO police station, Pulwama, court added, being the head of the raiding party was not a gazetted officer and as such he was not under any circumstances authorized to conduct search of the premises of the accused machine at 11 PM or thereafter on 23.06.2007. He was not also authorized to do so by any of his superior gazetted officers. It is also not disputed that no search warrant had been obtained.
“Even, if, such a non-gazetted officer of the police department has a reason to belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of the offence or facility for escaping of an offender and records grounds of the belief, he cannot enter and search such building, conveyance or enclosed place at any time before sunrise or after sunset”, read the judgment.
Court recorded that the prosecution should stand or fall on its own legs and it cannot derive any benefit from the weaknesses of the defense. Suspicion however, strong cannot take the place of legal proof. “The prosecution has failed before the trial court to prove the important aspects of sampling as also the analysis report. The Executive Magistrate before whom the sampling is alleged to have been done, has not been listed or examined as a witness in the case”, read the judgment.
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