HC peeved over inept investigation, prosecution of NDPS cases in J&K

Expressing displeasure over the amateurish attitude of prosecuting authorities to eradicate the growing drug menace across the Jammu and Kashmir, the High court has expressed sorrow over flaws in investigation and low prosecution rates of NDPS cases in Jammu and Kashmir, in the absence of competent public prosecutors.

The Court has also hinted some sort of connivance between few of the police officers/officials and the drug mafia.

The division Court Division Bench of J&K and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Mohan Lal has laid emphasis on putting a mechanism in place so that the provisions of NDPS Act and the rules framed thereunder are strictly adhered to and the Standard Operating Procedure(s) issued by the Home Department is strictly followed.

DB further directed that the Department of Home, Director General of Police, J&K and the Director General Prosecution to find out as to in how many cases effort has been made to find out the origin and the destination of the contraband seized while in transit.

DB further directed the respondents to have a proper selection procedure for appointment competent Public Prosecutors. “We cannot shut our eyes to the fact that menace of drug trafficking and consumption of drugs in the UT of Jammu and Kashmir is fast gripping in and it is high time that all the Authorities responsible for investigation and prosecution of the cases under NDSP Act are well equipped and educated to handle the investigations and prosecutions”, the Court said.

Pointing that the existing mechanism to educate the public prosecutors was not enough, the DB said “Sporadic seminars and webinars aimed at educating the Investigating Officers and the Public Prosecutors are not sufficient to meet the challenge(s). There ought to be regular workshops to be conducted by the police within or outside the UT of Jammu and Kashmir, so that the Investigating Officers are professionally trained to conduct these investigations. What, however, is lacking completely is the accountability”.

In a further indictment, the DB said, “We have not come across any mechanism or procedure in place where negligent and or dishonest investigators are made to account for their lapses which many a times they deliberately make to confer wrongful advantage on the persons accused of offences under NDSP Act and their handlers, DB said”. We have invariably seen that whenever huge quantity of contraband is recovered from a person traveling in a vehicle, it is the driver or one or two carriers with him who are booked and prosecuted, but no effort is made by the police to find out the origin from where the contraband has emanated and the destination where it was supposed to be delivered. In this way, we only try to prosecute the carriers and not the handlers of these carriers who are responsible to run the trade in an organized manner, DB observed”.

DB further observed that we are sure that an honest enquiry, if any made, in this regard would reveal some sort of connivance between some of the police officers/officials and the drug mafia. In the instant case, Enquiry Officer, however, has, as expected, given clean chit to the police, but we leave it to the wisdom of the Authorities who are responsible to maintain law and order to look into this aspect with some more seriousness. Hopping that the respondents are alive to the alarming situation created by the free flow of drugs throughout the Territory of Jammu and Kashmir, we leave it to them to take appropriate corrective and remedial measures and wish not to say anything more. After all, responsibility to maintain law and order lies with the executive and we, as Courts, are only obligated to apply law as it is.

DB directed Registry to send copy of judgment to the Secretary to Govt., Home Department, Director General of Police, Secretary to Govt., Law Department and Director General Prosecution.

This significant judgment has been passed in a appeal filed by the UT aggrieved by the judgment of acquittal dated 26.12.2013 recorded by the Principal Sessions Judge, Jammu [“the trial Court”] whereby the respondents have been acquitted of the charges under Sections 8/20/60 of Narcotic Drugs and Psychotropic Substances Act 1985, [“NDPS Act”], and has prayed for leave to appeal.

DB observed that needless to point out that with a view to bring home the charge under NDPS Act, more particularly under the Sections with which the respondents had been charge-sheeted, the recovery of contraband from them is a sine quo non. DB observed that we have already mentioned hereinabove that in such like cases, the seizure is required to be proved beyond reasonable doubt and it is for the prosecution to establish by leading cogent and convincing evidence that the item, which was found to be a contraband by the FSL, was actually seized from the conscious possession of the accused. In the instant case, as we have discussed above briefly, the prosecution has miserably failed to prove the seizure. Once the seizure of the contraband is not proved, which is the foundation of a NDPS case, the rest of the edifice built thereon by the prosecution is bound to fall.

DB further observed that having noticed the aforesaid serious flaws in the investigation and complete inapt handling of prosecution by the applicant/appellant, this Court vide its order dated 27.11.2019 directed the Secretary to the Government, Home Department of UT of Jammu and Kashmir to send a list of three senior officers out of which this Court may entrust the enquiry to anyone of them. The enquiry was directed to find out the lapses in the investigation and the connivance, if any, of the police with the drug mafia. From the list of officers sent by the Home Department, this Court vide order dated 13.12.2019 appointed one Sayed Ahfadul Mujtaba, IPS to conduct an enquiry into the whole matter and to pin point the guilt of the concerned officers/officials. The Enquiry Officer has submitted the enquiry report. The Enquiry Officer has given clean chit to the police insofar as the apprehension of this Court of the police acting in connivance with drug mafia is concerned.

The Enquiry Officer, however, has concluded that the prosecution failed to prove its case before the Court because of inexperience and lack of professional and technical know-how required for investigation of a case under NDSP Act. The Enquiry Officer too has concluded that failure of the PP, who conducted the prosecution case in a slip-shod manner, has also contributed in failure of case before the Court of law. From the discussion which we have made above and having regard to the enquiry report submitted by the Enquiry Officer, we have noticed the following serious flaws in the investigation compounded further by a totally unprofessional prosecution conducted by the PP.