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Himachal Pradesh High Court · body

2011 DIGILAW 1410 (HP)

State of Himachal Pradesh v. Karam Singh

2011-03-17

R.B.MISRA, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J Respondent Karam Singh was allegedly found in possession of 1 Kg. of Charas and 150 grams of opium in his residential house in village Thalaut. He was accordingly charge-sheeted, tried and acquitted by the learned trial Court for the offences punishable under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, as such, the present appeal by the State. 2. In short, the prosecution story is that on 5.5.2000 PW10 ASI Subhash Chand was on patrolling duty alongwith PW2 LHC Harbans Singh and other police officials in Thalaut Bazar. He received secret information at about 11.30 p.m. that the respondent was indulging in the sale of illicit liquor. He formed a raiding party and joined PW1 Devinder Singh and one Chamaru Ram as witnesses and raided the house of the respondent. On the search of the house, police recovered two Jerry-canes of five liters each of illicit liquor and 1 Kg. Charas alongwith 150 grams of opium from room No.3 of the upper storey. Police also took into possession the weights and measures which were found in the said room. Thereafter two samples of 25 grams each were separated from Charas and two from the recovered opium. All the four samples alongwith residue of the Charas and opium were sealed with seal impression ‘T’. The case property was taken into possession vide memo Ext.PA in the presence of the witnesses. Police also prepared the site plan Ext.PJ of the place of alleged recovery. 3. Ruka Ext.PD was sent for the registration of the case, which culminated into FIR Ext.PE. 4. Case property was produced before PW9 SHO Vidya Dhar, who resealed it with seal impression ‘A’. Memo to this effect is Ext.PF. PW9 aforesaid handed over the same to PW4 MHC Naresh Kumar, who deposited it in the Malkhana. 5. On 10.5.2000, one sample of Charas and one of opium were handed over to PW7 LHC Mohan Lal to deposit the same in CTL, Kandaghat for its analysis. It was received in the laboratory on 11.5.2000. On analysis, the sample of Charas contained Cystholythic hair and resin was 41.6% weight-in-weight and another sample tested positive for morphine, which was found 3.95% weight-in-weight. The report is Ext.PH. 6. The respondent was arrested. Grounds of arrest were informed to him. It was received in the laboratory on 11.5.2000. On analysis, the sample of Charas contained Cystholythic hair and resin was 41.6% weight-in-weight and another sample tested positive for morphine, which was found 3.95% weight-in-weight. The report is Ext.PH. 6. The respondent was arrested. Grounds of arrest were informed to him. Special report was sent to the official superior within the statutory period. 7. During investigation of the case, police also took into possession the revenue record of the house in question. After completing the investigation, case was presented in the Court for the trial of the respondent. As already stated above, at the end of the trial, respondent was acquitted, the grounds of acquittal were noncompliance of Section 50 of the Act and Section 100(4) of the Code of Criminal Procedure and also the joint possession. 8. We have heard learned Counsel for the parties and have carefully gone through the evidence on record. 9. At the very outset we would like to say that Section 50 of the Act in the instant case is not applicable as the alleged recovery is from the house and police had also joined two respectable persons from the locality. Therefore, Section 100(4) of the Code of Criminal Procedure stands fully complied with. On these two counts the findings of the learned trial Court are perverse. 10. So far as joint possession of the house is concerned, site plan Ext.PJ clearly shows that it is a two storeyed building having eight rooms and this house belongs to Mansha Ram, father of the respondent and his three adult sons, who are residing in the said house. The room from where the alleged recovery is stated to have been effected, as per prosecution case, belongs to the respondent. Jamabandi Ext.PC placed on record does not show the exclusive possession of the respondent either that of the room or the house. 11. Certificate Ext.PB obtained on 23.7.2000, on which the prosecution also sought reliance, appears to have been issued by some revenue Officer, has totally demolished the case of the prosecution because as per this certificate, room No.3 from where the alleged recovery of contraband was effected belongs to Dharam Dass and it is room No.2 which was that of the respondent. Certificate Ext.PB obtained on 23.7.2000, on which the prosecution also sought reliance, appears to have been issued by some revenue Officer, has totally demolished the case of the prosecution because as per this certificate, room No.3 from where the alleged recovery of contraband was effected belongs to Dharam Dass and it is room No.2 which was that of the respondent. Otherwise also, PW2 Harbans Singh in his cross-examination stated that the father of the respondent was also present in the house at the time of alleged recovery. However, he expressed his ignorance whether other brothers of the respondent were also jointly residing therein. This position is also admitted by the Investigating Officer PW10 ASI Subhash Chand. He categorically stated that the brothers of the respondent alongwith their family members were also residing in the same house, but qualified that none of the other persons were present at the time of raid except the father of the respondent, whereas the photographs Ext.P.11 and P12 show that all the three brothers were present when the alleged recovery was effected. Thus, in these circumstances, in our considered opinion, there is absolutely nothing on record to show that the room from where the alleged recovery of the narcotic was effected, was in the actual and conscious possession of the accused-respondent. 12. This apart, there is no explanation worth the name as to what had happened to the recovery of the illicit liquor which was found in two Jerry-canes. 13. Further, PW10 ASI Subhash Chand did not say categorically that the case property alongwith sample of seal which was sealed at the spot, was also produced before PW9 Vidya Dhar, SHO of the Police Station. Vidya Dhar aforesaid also not stated having deposited the sample of seal with PW4 MHC Naresh Kumar. Aforesaid MHC has also not whispered any word about the sending of the samples of seals with sample parcels for analysis. Although, PW7 LHC Mohan Lal stated that he had taken the samples of seals alongwith the sample parcel for deposit in the laboratory, but neither MHC in his statement has referred to the Road Certificate against which the case property was carried by the said Constable to the laboratory nor PW7 aforesaid said anything about it. Although, PW7 LHC Mohan Lal stated that he had taken the samples of seals alongwith the sample parcel for deposit in the laboratory, but neither MHC in his statement has referred to the Road Certificate against which the case property was carried by the said Constable to the laboratory nor PW7 aforesaid said anything about it. Copy of the Road Certificate against which the case property was taken, was not placed and proved on record, which could have thrown light whether the samples of seals were accompanying the samples or not. Therefore, adverse inference has to be drawn, had the Road Certificate been produced it would have helped the accused at least to corroborate the fact that samples of seals were not taken by PW7 aforesaid to the laboratory as stated by him. He also did not say anything about taking of the NCB forms to the laboratory. Not only this, even if the NCB forms have been taken by him, the facsimiles of the seals used at the time of sealing and resealing were not affixed thereon. At least these facsimiles would have helped the Analyst to tally it with the seal of sample parcels to ascertain its identity. Thus, the lithographic impression in absence of above facts showing that the seal/seals on the sample tallied with the specimen impression of seal/seals sent separately appears to be affixed in a mechanical manner. 14. Therefore, for the aforesaid reasons, we are of the view that the prosecution has failed to prove the case against the respondent beyond reasonable doubt. Thus, the acquittal of the respondent cannot be interfered with. As such, appeal is without any merit and is accordingly dismissed. 15. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. Send down the record.