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2004 DIGILAW 552 (RAJ)

Shree Ram v. State of Rajasthan

2004-04-09

SHIV KUMAR SHARMA

body2004
JUDGMENT 1. - The appellant was accused on the file of learned Special Judge, NDPS Cases, Jodhpur bearing Sessions Case No. 10/2000. Learned Special Judge vide judgment dated 12.7.2002 convicted and sentenced the appellant under Section 8/15 of the NDPS Act, 1965 to suffer rigorous imprisonment for 10 years and a fine of Rs. One lac and in default to further suffer rigorous imprisonment of one year. 2. It is the case of prosecution that on 16.12.1999, around 5.00 p.m., a truck bearing No. RI 19 G 3853 came from the side of Jodhpur. It was Completely loaded and body of the truck was fully covered with black polythene. The SHO, Police Station Kalyanpur, indicated to stop the truck but the driver of the :ruck neglected the indication and speed away the truck. The truck was chased by the police party and after some distance it got halted. The appellant was the driver of the truck while Khanger Ram and Sher Singh were sitting in the driver cabin. All three were arrested and the vehicle was seized. The truck was loaded with 67 bags of Poppy-husk weighing 16 quintal and 4 Kg. After usual investigation, charge sheet was filed. Charge under section 8/15 of NDPS Act was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as 13 witnesses and got exhibited 18 documents. In the examination under section 313 Cr.PC. the appellant claimed innocence and stated that he was not driving the truck at the relevant time but was arrested while he was in his village and falsely implicated in the case. Three defence witnesses were examined and 8 documents were exhibited by the defence. The learned trial Judge on hearing the arguments convicted and sentenced the appellant as indicated above. 3. Mr. M.L. Bishnoi, learned counsel appearing for the appellant took me through the statements of Jabbar Singh (PW. 1) and Ganesh Singh (PW. 2) and arrest memo of the appellant. In his deposition, Jabbar Singh PW. 1 stated that while he visited the police station, appellant was not amongst those five persons who were inside the police Station. It was around 12.0'Clock in the night that the appellant was brought to the police station. Jabbar Singh heard the appellant talking that he was innocent and the police falsely implicated him. In his deposition, Jabbar Singh PW. 1 stated that while he visited the police station, appellant was not amongst those five persons who were inside the police Station. It was around 12.0'Clock in the night that the appellant was brought to the police station. Jabbar Singh heard the appellant talking that he was innocent and the police falsely implicated him. One Bheeka Ram who was present in the police station at that time, asked Dy. SR. that why the appellant who had no connection with the Truck and Poppy Husk, was lifted from his house. Jabbar Singh also heard SHO telling that Sher Singh and Bhagwana Ram were carrying Poppy Husk in a private vehicle. Ganesh Singh (PW. 2) corroborated the version narrated by Jabbar Singh. The prosecution did not declare these witnesses hostile. 4. A look at the arrest memo of the appellant (Ex.P. 3) demonstrates that Jabbar Singh and Ganesh Singh were the motbirs of the arrest memo and according to them the appellant was arrested in the intervening night of December 16 and December 17 of 1999. The appellant in his statement under section 313 Cr.RC. stated that he was not driving the truck and police falsely implicated him. In fact the police came to his village in search of driver Bhagwana Ram, who was not available and because appellant knew driving, the police lifted him and lodged in the police station. Bheeka Ram and four other villagers had accompanied the Police and told that appellant was innocent but no heed was paid by the police and appellant was detained. 5. The sine qua non for attracting the penal provisions of NDPS Act is that the accused must be found in possession of the contraband. The term 'possession' is not defined in the NDPS Act. This term 'possession' has been judicially construed to imply dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and not merely the physical presence of the accused in proximity or even in close proximity to the object. The test for determining whether a person is in possession of anything is whether he is in general control of it. 6. Possession must be conscious and not merely the physical presence of the accused in proximity or even in close proximity to the object. The test for determining whether a person is in possession of anything is whether he is in general control of it. 6. The prosecution is obliged to establish by cogent and reliable evidence that the appellant was in conscious possession of poppy husk and when the prosecution lacks in this respect the conviction of the appellant cannot be sustained. In the case on hand as earlier notified the appellant was taken in custody in the intervening night of December 16, and December 17, 1999. Co-accused Sher Singh and Khangar Ram who allegedly were sitting in the cabin of the Truck have not been found guilty. The police exonerated Sher Singh and did not file charge sheet against him whereas Khangar Ram was acquitted by the learned trial judge. The evidence adduced by the prosecution lacks in establishing that the appellant had been in conscious possession of Poppy Husk and charge under section 8/15 NDPS Act could not be proved beyond reasonable doubt. 7. For these reasons, I allow the appeal and set aside the judgment dated 12.7.2002 passed by the learned Special Judge, NDPS Cases, Jodhpur. I acquit the appellant of the charge under section 8/15 NDPS Act. The appellant who is in jail shall be set at liberty forthwith, if not required to be detained in any other case. *******