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2002 DIGILAW 177 (RAJ)

BHAGWAN SINGH v. UNION OF INDIA

2002-01-23

KHEM CHAND SHARMA

body2002
Judgment K. C. SHARMA, J. ( 1 ) THIS criminal appeal by accused appellant Bhagwan Singh has been preferred against the judgment and order dated 6/9/2000 passed by the learned Special Judge (NDPS ). Jhalawar by which he has convicted the accused appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as the Act) and sentencing him to undergo rigorous imprisonment for 15 years with a fine of Rs. two lacs, in default thereof to further undergo two years Rigorous Imprisonment. ( 2 ) BRIEFLY stated the prosecution case is that on 26/3/1999 at about 7. 30 PM. Jamna Lal Meena. P. W. 3 Inspector Narcotics Department having received information from the informer that Bhagwan Singh S. 10 Bhanwar Singh has got concealed 10-12 kg. opium in his residential house constituted a reading team and proceeded to the house of Bhagwan Singh in a Government vehicle. On 27/3/1999 at about 7. 00 P. M. , the raiding party reached the house of Bhagwan Singh and encircled his house. Bhagwan Singh was found present in his house. The Inspector in the presence of two Panchas namely; Kachru Singh and Karan Singh gave a notice to the accused as required u/s 50 of the Act, thereby making him aware of his legal right to be searched either in presence of a Magistrate or in the presence of the Gazetted Officer. The accused while putting his thumb impression oh the notice consented for his search to be conducted by Jamna Lal Meena. Inspector. On search the Inspector found opium lying in a utensil (bhagona ). On weighing the opium the net weight of the opium came to be 10. 800 kgs. The Inspector prepared seizure memo Ex. p. 1. He than took the samples and sealed the samples and remaining opium in separate packets. The Inspector than arrested the accused and prepared site plan Ex. P. 4. The Inspector submitted a detailed report Ex. P. 14 to the Superintendent, Narcotics Bureau, Gwalior. The Supt. entrusted further investigation to PW 6 Ramesh Chandra Joshi, who recorded the statement of witnesses and on completion of investigation submitted a charge sheet against the accused appellant in the court of Special Judge. NDPS Cases Jhalawar. ( 3 ) THE learned trial Court, after hearing counsel for both the parties, framed charge against the accused u/s 8/18 of the Act. NDPS Cases Jhalawar. ( 3 ) THE learned trial Court, after hearing counsel for both the parties, framed charge against the accused u/s 8/18 of the Act. The accused denied the charge and claimed to be tried. ( 4 ) DURING trial, the prosecution in support of its case, examined as many as 8 witnesses and exhibited some documents. Therefore, the statement of the accused was recorded u/s, 313 Cr. P. C. The accused did not lead any evidence in his defence. ( 5 ) ON conclusion of trial, the learned Special Judge found the prosecution case duly proved beyond reasonable doubt and accordingly, convicted and sentenced the accused appellant as aforesaid. It is against this judgment of conviction and sentence dated 6/9/2000 that the appellant has preferred this criminal appeal. ( 6 ) 1 have heard Mr. B. S. Sinsinwar, counsel for the accused appellant and Mr. Prabhat Bhatnagar, appearing, on behalf of Union of India and also gone through the judgment under appeal and the evidence on record. ( 7 ) THE foundation of the prosecution case is that a licence for cultivating opium was issued by the Licencing Authority in the name of accused appellant. On an information (Ex. P8) of the informer that accused Bhagwan Singh had kept concealed in his residential house the opium weighing about 10-12 kgs, saved by him out of the opium cultivated during last year, the raiding party headed by PW 8 M. G. Vijay searched the house of the appellant and recovered opium weighing 10,800 kgs. ( 8 ) I have scanned the entire evidence. The first question that falls to my consideration is whether the prosecution has been able to successfully prove in the light of the evidence and material on record that appellant Bhagwan Singh had the licence in his name for the preceding year. ( 9 ) AT the outset, it may be mentioned that the appellant has made a confessional statement. Ex. P 10 to the effect the a licence for cultivating opium in his field measuring 30 Aar! for the last year i. e. 1998 was issued in his name and in confirmity with the licence he cultivated the opium. He handed over only 2-3 kgs. of opium at the Weighing Centre of the Government and kept concealed the remaining opium in his house for the purpose of sale. for the last year i. e. 1998 was issued in his name and in confirmity with the licence he cultivated the opium. He handed over only 2-3 kgs. of opium at the Weighing Centre of the Government and kept concealed the remaining opium in his house for the purpose of sale. ( 10 ) BEFORE proceeding to deal with the relevant evidence; it may be mentioned that the accused. In his explanation under Section 313 Cr. P. C. has denied to have made any statement and also denied to have put any thumb impression on such statement. ( 11 ) PW 1 Kamlesh Shankhwar, a member of the raiding party has stated that he had no knowledge whether any licence was issued in the name of Smt. Kishanbai W/o Shri Ram Singh. However, the witness has admitted that the licence, Ex. D1 is in the name of Kishan Bai. Similarly, PW 3 Jamna Lal Meena, Inspector, Narcotics Department who conducted search and seizure has deposed that he had no knowledge of licence in the name of Kishanbai. PW 3 has admitted that he did not collect any document as regards ownership of the house from which the contraband was recovered, PW 4 Kachru. Mukhiya (Lambardar) who was a witness to the search and seizure has been declared hostile. However, he/has admitted that opium was recovered from the house belonging to the Kaki (aunt) of the accused appellant. He has further admitted that accused and his Kaki were in joint possession of the house. The witness has admitted the complaint, Ex. D3 made by him to the Commissioner and Deputy Commissioner. Narcotic Department. PW 5 Karan Singh a mothir has stated that opium was recovered vide Ex. P1. In cross-examination, the witness has admitted that Kishanbai had licence in her name for cultivating opium and the accused used to cultivate her land. ( 12 ) YET another important witness is PW 6 Ramesh Chand Joshi, Investigating Officer who conducted the investigation. In cross examination, the witness has stated that he collected the certificate, Ex. D5 from Gram Panchayat Kachnara, which shows that accused Bhagwan Singh and Kishan Bai were in joint possession of the house in question. He further admitted that Kishanbai, aunt of accused is the licencee cultivator and that accused and Kishanbai are living jointly in the same house. In cross examination, the witness has stated that he collected the certificate, Ex. D5 from Gram Panchayat Kachnara, which shows that accused Bhagwan Singh and Kishan Bai were in joint possession of the house in question. He further admitted that Kishanbai, aunt of accused is the licencee cultivator and that accused and Kishanbai are living jointly in the same house. The witness admitted that he did not record the statement of Kishanbai, who is an old lady, Lastly, the Investigating Officer has admitted that that Smt. Kishanbai and Lambardar of the village had submitted a complaint in this respect to the Deputy Commissioner, Narcotics, who, in turn, forwarded the said complaint to him for enquiry. ( 13 ) PW 8 M. C. Vijay, Superintendent, Narcotics who was head of the raiding party has admitted that complaint, Ex. D. 3 was lodged by the Opium Lambardar of Village Bardi to the Commissioner and Deputy Commissioner, Narcotics. He further admitted that Kishan Bai was the licence holder for that particular year in question for cultivating opium. ( 14 ) THUS from the evidence discussed above, it is crystal clear that the prosecution has failed to prove that the accused was the licence holder for the previous year and therefore, in the absence of any evidence to show that accused appellant was the licence holder, it cannot be concluded that it was accused who kept concealed the opium out of the opium cultivated by him during last year and surrendered less quantity to the Government. Since the prosecution has failed to prove that accused appellant saved the opium for the purposes of sale or for black marketing, the confessional statement (Ex. P10) is of no consequence and no credibility can be attached to it and it cannot be made basis for sustaining conviction. ( 15 ) IT is also an admitted fact as is evident from the prosecution evidence discussed above that the accused appellant and his aunt Kishanbai were in joint possession of the house from where the alleged opium was recovered. It also stands proved by the prosecution evidence that Smt. Kishan Bai was the licence holder for cultivating opium for the year in question. Soon after the recovery of opium, Smt. Kishanbai and Lambardar of the Village submitted a written complaint Ex. D3 to the Deputy Commissioner. Narcotics. It also stands proved by the prosecution evidence that Smt. Kishan Bai was the licence holder for cultivating opium for the year in question. Soon after the recovery of opium, Smt. Kishanbai and Lambardar of the Village submitted a written complaint Ex. D3 to the Deputy Commissioner. Narcotics. who in turn, forwarded the said complaint to the concerned authorities for enquiry. However, it appears from the evidence on record that no enquiry was made on the complaint. Ex. 03 as there is no enquiry report on the record of the case. That a part, as discussed hereinabove, the statement of Smt. Kishanbai was not recorded. Therefore, it must be held that the house from which the contraband was recovered, was not exclusively in possession of the appellant and he cannot be held to be in conscious and exclusive possession over the contraband recovered. Thus, in the light of the admitted fact, it cannot be ruled out that the opium seized and recovered from the house in question belonged to Smt. Kishan Bai. ( 16 ) FOR the reasons aforesaid, it must be held that the prosecution has not been able to prove beyond reasonable doubt that appellant was at all connected with the opium seized and recovered from the house in question and therefore, the conviction of appellant u/s 8/18 of the Act cannot be sustained. ( 17 ) IN the result, the appeal must succeed and it is hereby allowed. The judgment of the trial court dated 6/9/2000 convicting and sentencing the appellant is set aside and he is acquitted of the offence charged with. The appellant is in jail and he be released for with, if not wanted in any other case. Appeal allowed.