Court rejects remand in NDPS case, directs SSP & DM for enquiry

Court passes strictures against IO, Executive Magistrate

07/11/2019

JAMMU, NOV 6: In a rarest of the rare case whereby Court reject remand in heinous offences.Additional Sessions Judge Jammu Tahir Khurshid Raina rejected the remand filed by Gangyal Police in NDPS Case. While rejecting remand, Additional Sessions Judge Jammu Tahir Khurshid Raina, passes strictures against Investigating officer and Executive Magistrate.
Court further observed that in view the rank slackness and casual approach shown by the investigating agency while investigating such a heinous offence and SSP Jammu to enquire into the matter forth with, fix the responsibility and submit the compliance report within a fortnight to this Court.
Court further directed District Magistrate Jammu to look into the aforementioned conduct of Executive Magistrate and take action under law and submit the report before this Court within a fort night. The Application for judicial remand of the accused person namely Kamaljeet Singh R/O Nanak Nagar Jammu and Sourav Sudan R/O Indira Nagar was moved today at 04:00 PM by Mr. B.S Charak PSI No. 176330ARP in above FIR U/S 8/21/22/29/NDPS Act P/S Gangyal.
On presentation of the said application, Court sought CD file from the concerned officer and he was also directed to produce both the accused before the Court.
Court further observed that before opening the CD file the accused Kamaljeet Singh stated that it is a frivolous case framed against them and SHO Gangyal told them that on asking of SSP they have been picked up and booked in the said FIR.
Court further observed that without getting much influenced by such statement of the accused and perused the CD file the perusal of the FIR reveals that on 30-10-2019 Ct. Naresh Kumar No. 2278/J presented a witted docket on behalf of ASI Satpal at P/S Gangyal, alleging there in that while performing petroling duty at Marakhari and its adjoining areas, they found a Santro Car bearing registration No. P602AX 0652 parked at the said place at 9:45 PM/ on seeing the police party the driver of the car namely Kamaljeet Singh Accused No. 1 started the vehicle. On this conduct of the accused police party became suspicious and stopped the car. Alongwith accused No. 1 and accused no.2 namely Sourav Sudan was found sitting in the front of seat of the car, on frisking, a white coloured polythene envelope came to be recovered from the left pocket of the trouser of Accused No-1 which was found to contain 550 gm of Heroine where as 650 gm of heroine came to be recovered from the right pocket of the trouser of Accused No. 2. it's on the basis of the said docket the case in hand came to be registered against the accused persons and investigation started. The instant case has got registered at P/S Gangyal as per the CD file. the accused was remanded to police custody by Executive Magistrate (Tehsildar) Ist Class Jammu on 31-10-2019 for a period of Six 06 days. The remand period is expired today and it's in this context that the investigating agency moved an application for judicial remand of the accused persons before. Spl Judge (Principal. Sessions Judge) who transferred the same to this Court for its disposal under law. On scanning of the CD file, Court astonished to note that IO has not placed on record the seizure memo in respect of the contraband allegedly recovered from the accused persons. On inquiry from him about this most important document which give a prima facie presumption of guilt of the accused in context of the circumstances revealed in the FIR, there was no cogent reply from the officer, rather he stated that he had forgotten the said documents in the Police Station and requested to provide said document within some time, while acceding to his request, time was granted to him and them at 4:30 PM. The Officer turned up along with the seizure memo of the contraband stating that in fact it was lying in the bag carried by the accompanying Head Constable and not at the Police Station. Court further observed that as this conduct raised reasonable suspicion that how can an IO forget crucial piece of evidence like Recovery/Seizure memo at the police station or in the bag of accompanying Head Constable and has not make it part of the CD file which is going to presented before Judge seeking remand of the in this backdrop and thought it proper to peruse CD file minutely.
Additional Sessions Judge Tahir Khurshid Raina on perusal of CD File found that IO has not bothered to submit even a single CD in the case as mandated by Sec-172 of the code of Criminal procedure. Even, the seizure memo which was placed on record by the IO, after seeking time from this Court, has not bee attested by the marginal witness cited there in namely Satpal Sharma ASI P/S Gangyal and Sgct. Faqeer Din of the said police station,. Even the docket on the basis of which FIR came to be registered, has not been found across the file.
This made me a peruse the earlier remand granted by Executive Magistrate (Ist Class) Jammu, Court observed.The first question that arose in the mind of this Court as to how the IO approached Executive Magistrate in the very first instance for police remand of the accused and did not approach Judicial Magistrate. And this law on the point is that the police remand in the first instance must be sought from the Judicial Magistrate. Its only in case of non availability of the judicial magistrate that the IO can approach Executive Magistrate for the same, recording the reason in this regard in the CD file. However, as mentioned earlier, not a single CD is available on the CD file presented before the Court.
Court after perusal of the order of remand passed by the Executive agistrate, shocked to. It was shocking to note that the said order was in contradiction of the mandate of the code as envisaged in Sec 167 Cr.PC. The Order does not speak at all the reasons as to why the police remand has been granted of the accused persons. This observation in any remand order is the "Sine qua non" of sending the accused to police custody, Second, as per section 167 (4) of the Cr.PC. if the Executive Magistrate grant remand in other than the District Magistrate or Sub Divisional Magistrate, he shall forward a copy of the order, with his reasons for making it, to the magistrate to whom he is immediately subordinate. However the order of remand passed by Executive Magistrate (1st Class) has not complied with the mandate of the law governing the field. this abundantly manifests that mandate of the law has been ignored with impunity by the said Magistrate while passing the Remand order This act of the Magistrate concerned is highly deplorable, uncalled for and unbecoming which warrants action under law. He must remember that while dealing with the remand applications, he is at the same time dealing with me right to life and liberty of the person which is the most sacramental right enshrined in the constitution. A liberty of the person can be curtailed by the state, but only by adopting the due provision of law.When I found the seizure/recovery memo pregnant with colour of suspicion, I wanted to draw my satisfaction with regard to occurrence in question from the statement of the witnesses in whose presence the contraband was allegedly recovered. But to my utter surprise, I did not find a single written statement on record. And fact was that 06 days have passed since the alleged occurrence but not a single witness has been examined so far by the IO.
In these facts and circumstances it is more than clear that there is no cogent and convincing evidence on record which would justify to perpetuate the remand of the accused and to accede to the request made by the IO. Fact remain that, through this Court was legally bound to peruse the CD file in totality when any request for Remand was on date..
But for the statement of the accused No. 1 in the very first instance, when he was produced by the IO that the entire case is manufactured story against him, it influenced me more to be extra caution while dealing with the instant application.
Court after perusal of CD file observed that I am at a fair conclusion that the application, seeking Judicial remand of both the accused persons in devoid of any merit and is accordingly rejected.

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