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2002 DIGILAW 88 (HP)

BHAGWAN DAS v. STATE OF HIMACHAL PRADESH

2002-04-04

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The abovenoted two appeals arising out of the judgment dated 10.5.2000 of the learned Special Judge, Kullu, in Sessions Trial No. 15/1999 are being disposed of by this single judgment. Each of the two appellants (hereinafter referred to as the accused) stands convicted for the offence under Section 20, Narcotic Drugs and Psychotropic Substances Act, 1985 (for short: NDPS Act) by the learned Special Judge and sentenced to rigorous imprisonment for ten years and to pay fine of rupees one lac. In default of payment of fine, each of the two accused has been sentenced to undergo simple imprisonment for a further period of two years. The prosecution story, briefly stated is this. On 9.1.1999 at about 9.30 a.m., PW 8 Bhim Sen received a secret information on telephone about two unknown persons sitting on the roadside Sidhwan and that such persons were suspected to be in possession of Charas. The information so received was duly entered in the daily diary and a copy thereof was sent to Superintendent of Police, Kullu. PW 8 Head Constable Bhim Sen along with certain police constables proceeded towards the spot. PW 1 Kamlesh Rahi and one Uttam Ram were also associated by him. At about 9.45 a.m. the party headed by PW 8 Bhim Sen reached the spot. He found two persons, namely the two accused, sitting on the roadside and a bag was lying in between them. On inquiry, the two accused disclosed their names and addresses. PW 8 Head Constable Bhim Sen then expressed his suspicion about the two accused being in possession of Charas. He enquired from them if they would like to be searched by him at the spot or would like to be searched in the presence of a Magistrate or a Gazetted Officer. Both the accused opted to be searched by PW 8 Head Constable Bhim Sen. Search of the bag was carried out and one container of five liters wrapped in a shawl was recovered therefrom. On opening such container, it was found to contain frozen ghee. The container was then shook by PW 8 Head Constable Bhim Sen. On such shaking of the container, some sound was heard. PW 8 Head Constable Bhim Sen took out the ghee from the container and underneath it Charas in the form of tablets wrapped with paper was recovered. On opening such container, it was found to contain frozen ghee. The container was then shook by PW 8 Head Constable Bhim Sen. On such shaking of the container, some sound was heard. PW 8 Head Constable Bhim Sen took out the ghee from the container and underneath it Charas in the form of tablets wrapped with paper was recovered. On weighment the Charas was found to be 1100 grams. Two samples weighing 25 grams each were taken out. Such samples and the remaining part of the Charas recovered were then separately sealed with the seal Mark A and taken into possession vide memo. Ex. PW 1/C. The two accused were, therefore, arrested after informing them about the grounds of their arrest. PW 8 Head Constable Bhim Sen on his return to the Police Station produced the three sealed packets containing the samples and the balance Charas recovered before the Incharge, Police Station PW 7 Inspector Jagdish Chand, who resealed the packets with his own seal mark M and deposited the same in the Malkhana for safe custody. The sample on having been analysed was found to be that of Charas. After the completion of investigation, the two accused were sent up for trial for the offence under Section 20, NDPS Act. They pleaded not guilty and claimed trial. The case of the two accused is that of denial. They pleaded that they were arrested by the police on 6.1.1999 at about 5.30 p.m. from Banjar Bus stand and were produced before the Magistrate only on 9.1.1999. The present case has been falsely foisted on them. The prosecution in support of its case in order to bring home the offence against the two accused examined eight witnesses in all. One witness, namely, Uttam Ram, who was associated by the police as a member of the raiding party and who was not examined as a witness for the prosecution and was given up, was examined by the accused in their defence. Such witness has not supported the case of the prosecution. The learned trial Judge on consideration of the evidence led before him came to the conclusion that a case for the offence under Section 20, NDPS Act stood proved against each of the two accused beyond a reasonable doubt. He, accordingly, vide the impugned judgment dated 10.5.2000 convicted and sentenced each of the two accused as aforesaid. The learned trial Judge on consideration of the evidence led before him came to the conclusion that a case for the offence under Section 20, NDPS Act stood proved against each of the two accused beyond a reasonable doubt. He, accordingly, vide the impugned judgment dated 10.5.2000 convicted and sentenced each of the two accused as aforesaid. We have heard the learned Counsel for the parties and have also gone through the record of the case. Before a person can be convicted for the offence under Section 20, NDPS Act, the prosecution is obliged to prove that such person was found in possession of the narcotic. In Duni Chand v. Emperor, AIR 1940 Lahore 36, seven persons were found sitting in a restaurant around two tables lying side by side, on four chairs and a cot lying near the table. They had their hands or elbows on the table on which there were four tumblers containing small quantities of liquor. Some empty tumblers were also found on the table. A bottle containing eight ounces of liquor of the same variety was also found on the table. The trial Magistrate convicted all the seven persons for the offence under Section 61(i)(a), Punjab Excise Act, on the ground of their being collectively responsible for possession of liquor on the table without trying to find out if any of these seven persons was in individual possession of any tumbler containing the liquor. On revision having been preferred by one of those seven persons, the High Court of Lahore set aside the conviction and sentence by holding that the conviction on the ground of collective responsibility was bad and the trial court ought to have enquired into if any of these persons was in individual possession of liquor. The Honble Apex Court recently had an occasion to deal with a similar situation in Ismail Khan Aiyub Khan Pathan v. State of Gujarat, (2000) 10 SCC 257. In this case, Inspector of Police Crime Branch in the Vigilance Squad received secret information that illicit trafficking was going on in the room on the first floor of a building which was in possession of one Nasir and that the said Nasir had kept a stock of Charas and was dealing with the same through his servants. A raid was conducted. Upon entering the room six persons were found present there. A raid was conducted. Upon entering the room six persons were found present there. He also found one gunny bag kept in the corner of the room. On opening the gunny bag Charas was recovered therefrom. All the six persons found present in room were arrested and put to trial for the offence under Section 20, NDPS Act. The learned trial court convicted five persons and acquitted the sixth one. The conviction and sentence of such five persons were confirmed in appeal by the Gujarat High Court. On further appeal before the Apex Court the conviction and sentence of all the five persons were set aside and they were acquitted of the offence. It was held : "There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question. Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance "Charas". It appears that the High Court put the burden on the appellants to explain as to how they were present in the room. This is what the High Court has observed: In the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since When they were present in the premises. This is what the High Court has observed: In the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since When they were present in the premises. Therefore, in our opinion, only inference can be drawn from their unexplained presence in the premises, they being not tenants of the premises is that they were in possession of the premises at the relevant time and the substance found from that premises is possessed by them.” In the present case as well, the case of the prosecution is that the two accused were found sitting on the road side and a bag was lying in between them. There is no evidence that anybody had seen any of the two accused handling the bag. Nor their is any evidence to show that any of them or both had, either through a confession or otherwise, admitted the bag to be belonging to him/them. The prosecution evidence, in fact, is absolutely silent as to in whose conscious possession the bag was recovered. Merely because the two accused were found sitting on the road side and a bag was found lying in between them, it cannot be presumed that they were in possession of such bag. Assuming that the bag was in possession of one of them, the question is in whose possession. Nothing is forth coming in this regard in the evidence of the prosecution. There is another significant aspect of the case. The circumstance that the bag was recovered from the possession of the two accused was also not put to the accused in their examination under Section 313, Code of Criminal Procedure. On the failure of putting such circumstances to the accused during their examination under Section 313, Code of Criminal Procedure, the same cannot be used against them. In Kanhai Mishra @ Kanhaiya Misar v. State of Bihar, 2001 (1) Crimes 313 (SC), the circumstance that the accused therein was last seen with the deceased, was not put to the accused in his examination under Section 313, Code of Criminal Procedure. It was held that such circumstance could not be used against the accused. In Kanhai Mishra @ Kanhaiya Misar v. State of Bihar, 2001 (1) Crimes 313 (SC), the circumstance that the accused therein was last seen with the deceased, was not put to the accused in his examination under Section 313, Code of Criminal Procedure. It was held that such circumstance could not be used against the accused. It was contended by the learned Additional Advocate General in view of the presumption available under Sections 35 and 54, NDPS Act, the burden is on the accused to prove that they had no culpable mental state and in the absence of such evidence the accused have been rightly convicted and sentenced. We do not find force in the contention of learned Additional Advocate General. Before a presumption under Sections 35 and 54, NDPS Act can be raised, the prosecution has to prove beyond all reasonable doubts that Charas was found in possession of the accused. Since the very possession of Charas with the accused has not been proved and established in the present case, the presumption under Sections 35 and 54, NDPS Act is not available in the present case. It has been held in State of M.P. v. Prabhulal, 1994 (1) Crimes 710, by the High Court of Madhya Pradesh, with which we are in full agreement, that what is permitted to be presumed is not a fact of possession of contraband articles by the accused, but the unlawfulness and illegality thereof and it does not dispense with the primary burden of prosecution to prove possession of any contraband. In other words, it is necessary for the prosecution to prove conscious possession of the accused in respect of the contraband before a presumption either under Section 35 or under Section 54, NDPS Act can be raised. Even otherwise, the recovery of the Charas in the present case is not free from doubt. It is the case of the prosecution that on opening the container, it was found to contain frozen ghee. Some sound was heard from the container when it was shook. Ghee was taken out and beneath it Charas in the form of tablets wrapped in paper was recovered. It can hardly be believed that when the container contained frozen ghee, the, article underneath it would make a sound unless it is shown that there was a gap between the concealed article and the layer of frozen ghee. Ghee was taken out and beneath it Charas in the form of tablets wrapped in paper was recovered. It can hardly be believed that when the container contained frozen ghee, the, article underneath it would make a sound unless it is shown that there was a gap between the concealed article and the layer of frozen ghee. It is not the case of the prosecution that such a gap was found in the present case. The Charas in the form of tablets, as stated above, was found wrapped in a paper. Such paper does not appear to have been taken in possession in the present case. It was a material piece of evidence in the present case since being burried under the ghee it would have contained stains of ghee. Besides the two iron stripes alleged to have been found in the container also were neither taken into possession nor produced in evidence in order to support the recovery of Charas in the manner alleged by the prosecution. Taking into consideration the entire evidence coming on record in its totality, the only conclusion is that the prosecution has miserably failed to prove the case against either of the two accused beyond a reasonable doubt and the two accused are entitled to be acquitted. As a result, both the appeals are allowed. The conviction and sentence imposed upon the two accused by the learned Special Judge are set aside and the two accused are acquitted of the offences under Section 20, NDPS Act. The two accused are in jail undergoing sentence. They shall be released forthwith if not required in any other case. The case property shall be dealt with as per directions of the learned trial court. R.L. Khurana, J.—For judgment see judgment of even date rendered in Criminal Appeal No. 436 of 2000, titled Bhagwan Dass v. State of H.P.