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2007 DIGILAW 927 (PAT)

Rabindra Singh v. State Of Bihar

2007-05-10

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred by the sole appellant against the judgment of conviction dated 9.9.2005 and its order of sentence dated 12.9.2005 passed by Sessions Judge, Bhojpur at Ara in N.D.P.S. Act and sentenced to undergo R.I. for ten years with fine of Rs. 1 lakh and in default to undergo imprisonment of R.I. for one year. 2. The prosecution case in short that on 31.12.1995 at 9.00 A.M. on direction of S.P. Bhojpur, the informant Srikant Upadhyaya, Officer Incharge of Piro Police Station alongwith raiding party went to Gola of Mahanand Singh situated in Hassan Bazar and raided the shop of the appellant and one Radhe Shyam Choudhary. He seized 2 kgms. d ganja from the shop of Radhe Shyam Choudhary and 3.4 kgms. of ganja from the alleged shop of the appellant.The search and seizure was conducted in presence of two local witnesses, namely, P.W. 1. Hari Nandan Singh and P.W.6, Vishwanath Singh. At the time of search, neither Radhe Shyam Choudhary nor this appellant was found present in the shop. 3. The sample of ganja recovered from both the shops were sent to Chemical Analyst. Sample of Radhe Shyam Choudhary was found Bhang and hence, he was discharged. However, sample of article recovered from the alleged shop of the appellant was found to be ganja. Ext.5 is the analyst report. S.I. Vinay Kumar (P.W. 3) on fardbeyan of informant (P.W. 2) investigated the case and submitted chargesheet. 4. In course of the trial, seven witness have been examined in this case. P.Ws. 1 and 6 are seizure list witnesses. P.W. 2. Srikant Choudhary is the informant and P.W. 3, Vinay Kumar Singh is the I.O. of the case. Other witnesses are police constables. 5. Defence of the appellant is plea of innocence and false implication. Other defence is that he had no shop in said Gola of Mahanand Singh. No any illicit article was recovered from his possession and he has been falsely framed at the instance of his enemies. 6. In course of argument, the learned counsel for the appellant challenged the judgment in question both in law as well as on facts. It was submitted that there is no material on the record to show that the shop in question belonged to appellant. 6. In course of argument, the learned counsel for the appellant challenged the judgment in question both in law as well as on facts. It was submitted that there is no material on the record to show that the shop in question belonged to appellant. No owner of Gola or any independent witness has been examined to show that the shop in question belonged to the appellant. It was further submitted that no ganja was recovered from conscious possession of this appellant. 7. The admitted fact is that the appellant was not present at the time of search and seizure. There is no case or evidence that the appellant fled away from the shop after seeing the raiding party. The consistent defence of the appellant is that the shop in question did not belong to him. He had no shop in Gola of Mahanand Singh or at any place. Therefore, the prosecution has to prove ownership or possession of the appellant over the shop in order to attract sec. 54 of the N.D.P.S. Act. 8. Admittedly, the prosecution has not brought on the record any document to prove ownership or possession of the appellant over the shop in question. The most important witness on this point was owner of Gola, namely, Mahanand Singh. He has not been examined in this case. No explanation, worth the same, has been given for his non-examination. Even nearby owners of the shop have not been examined in this case. Both the seizure list witnesses P.Ws. 1 and 6 were said to be present at the time of recovery but they are persons of the different locality. They are not of Hassan Bazar. Apart from it, they have turned hostile and have not supported the fact of recovery. Other witnesses are members of the raiding party or I.O. of the case. 9. P.W. 2, Srikant Upadhyaya is the informant. He in cross-examination has admitted that he did not see any document with regard to the shop. The evidence of this witness even throws doubt on search and seizure. In F.I.R., there is nothing to show that the shop was locked and he entered in the shop of appellant after breaking lock. But in cross-examination, paragraph-4, he has stated that at the time of raid the shop was found closed. The evidence of this witness even throws doubt on search and seizure. In F.I.R., there is nothing to show that the shop was locked and he entered in the shop of appellant after breaking lock. But in cross-examination, paragraph-4, he has stated that at the time of raid the shop was found closed. He has further stated that no pne from nearby shop came at the time of search and seizure. 10. P.W.3, Vinay Kumar is the I.O. of the case. He in cross-examination has admitted that he did not examine any independent witness on the point of ownership or tenancy of the appellant over the shop in question. He has also admitted that he did not mention in the case diary about any document with regard to alleged shop of the appellant. 11. P.W. 4, Shivji Chauhan is the constable. He in paragraph-2 of the evidence contradicted the statement of the informant. He in cross-examination has stated that at the time of search, the shop was found open. He has also admitted that he cannot say as to whether the shop in question actually belonged to the appellant. P.W. 5 is the another constable of the police. He in cross-examination excluded the presence of any local and independent witness at the time of search and seizure. He also denied to have any personal knowledge about the ownership of the shop. 12. P.W. 7 like P.Ws. 5 and 4 has also not supported about the ownership of the shop of the appellant. 13. Thus, from the above discussion of evidence, it is quite clear that the prosecution has failed to prove possession/ownership/ tenancy of the appellant over the shop in question. Therefore, no liability of any kind can be fastened to the appellant for recovery of ganja from the shop in question. As mentioned above, the appellant was also not found present in the shop. Therefore, there is no question of recovery from conscious possession of the appellant. 14. In the result, this appeal is allowed and the impugned judgment of conviction and sentence is hereby set aside. The appellant is directed to be set at liberty, if not wanted in any other case.