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2012 DIGILAW 361 (HP)

Pawan Kumar v. State of Himachal Pradesh

2012-06-27

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, Judge The appellant has laid challenge in the present appeal to the judgment of conviction and sentence passed by the learned trial Court in Session Case No. 11-VII-2011, decided on 31.10.2011, under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act, for allegedly keeping in his possession 900 grams of “Poppy Husk”, a non-commercial quantity, to undergo sentence of rigorous imprisonment for a period of six months and to pay fine of ` 10,000/-and in default of payment of fine, simple imprisonment for a period of two months. 2. Heard and gone through the evidence on record. A. Prosecution Case 3. Precisely, the case of the prosecution is that the appellant, hereinafter referred to as “the accused” was running a Dhaba near Village Churru at Una-Amb road. On 27.9.2010, a police party headed by PW-13 ASI Ashok Kumar of Police Station, Amb was on patrolling in a police vehicle No. HP-20C-1354. Their departure was duly recorded in daily-diary, copy whereof is Ext. 10/A . After the sunset, they were in the area of Nandpur Bazaar. Around 10.30 p.m., they received a secret information that the accused was dealing in contraband in his Dhaba, running under the head and style of “Radhika Complex”, situated on the side of Una-Amb State Highway. (ii) Believing this information as authenticated, PW-13 ASI Ashok Kumar prepared Rukka Ext. PW-6/A and sent it to Police Station through PW-12 ASI Sat Pal Singh for the registration of the case, which culminated into FIR Ext. PW-6/B. (iii) Aforesaid information was also taken down in writing as required under Sections 42(1) and 42(2) of the Act and was sent to the Superintendent of Police, concerned through PW-9 Constable Vijay Kumar. (iv) Thereafter, the Investigation Officer (PW 13, aforesaid) constituted a raiding party by including PW-1 Sarwan Kumar and PW-2 Gurpal Singh, as independent witnesses, conducted the raid of “Radhika Complex” Dhaba and found the accused present. The Investigating Officer, aforesaid informed the accused the purpose of raid/visit and expressed his suspicion that the accused might be dealing in contraband in the Dhaba. The accused was given option to get the search of his Dhaba by a Gazetted Officer or by the police party vide memo Ext. PW-1/A. The accused exercised his option that his Dhaba be searched by the police party itself. The accused was given option to get the search of his Dhaba by a Gazetted Officer or by the police party vide memo Ext. PW-1/A. The accused exercised his option that his Dhaba be searched by the police party itself. (v) On the search of the Dhaba, one packet of “Poppy Husk” was recovered from the counter near the cash box and three other packets were found near to the bathroom of the Dhaba beneath the Shahtoot tree. All the packets were checked and found containing “Poppy Husk”. PW-5 Constable Joginder Singh brought weight and scale from the shop of PW-3 Rakshpal. The recovered stuff was weighed. It came to be 1 Kg 900 grams. (vi) All the packets were made into one parcel, sealed with seal impression “A” at six places and taken into possession vide Memo Ext. PW-1/C. (vii) The sample of the seal was taken on a piece of cloth, Ext. PW-1/B. The police also filled in NCB forms in triplicate, one of which is Ext. PW-6/E. (viii) Site plan Ext. PW-13/A of the recovery was also prepared. The accused was arrested. The grounds of arrest were informed to him vide memo Ext. PW-13/F and the intimation of his arrest was given to his brother Manoj Kumar who happened to be present on site. (ix) A special report of search and seizure was sent to the Superintendent of Police through PW-5 Constable Joginder Singh within the statutory period. (x) The case property was produced before PW-6 MHC Ashwani Kumar who was officiating as SHO of the Police Station. He had resealed the parcel of the case property with seal impression “H”. Its sample was taken separately. Thereafter, the case property was deposited in the Malkhana alongwith the NCB forms. Its entry was made in the relevant register. The facsimile of the said seal after use was also taken on the NCB forms. (xi) The said sample was sent to the Forensic Science Laboratory for its examination. As per report Ext. PW-6/H, it was found “Chura Post”, i.e. “Poppy Straw” of Papaver somniferum L) species. 4. On completing the investigation, challan was presented in the Court for the trial of the accused, He was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 5. The prosecution examined its witnesses. As per report Ext. PW-6/H, it was found “Chura Post”, i.e. “Poppy Straw” of Papaver somniferum L) species. 4. On completing the investigation, challan was presented in the Court for the trial of the accused, He was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 5. The prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the recovery of the alleged contraband. 6. At the end of the trial, while relying upon the prosecution case, the learned trial Court convicted and sentenced the accused for the offence, as stated above. 7. Shri N.K. Thakur, learned Senior Counsel assisted by Shri Inder Sharma, Advocate, vehemently argued that there has been non-compliance of Section 42(1) of the Act and further that it stands proved from the record that the alleged contraband was not recovered from the actual and conscious possession of the accused and the learned trial Court also ignored the statement of PW-11 Kashmir Singh, the owner of the premises. He stated having rented out the premises in question to the accused alongwith his two brothers, namely, Santosh Kumar and Manoj Kumar. Therefore, it was a case of joint possession which sans actual and conscious possession of the accused. 8. Shri P.M. Negi, learned Deputy Advocate General has pointed out that there has been compliance of Section 42(2) as well as Section 42(1) of the Act. He referred to the report Ext . PW-4/A and Rukka Ext. PW-6/A, wherein there is a mention of the fact as to why the Investigating Officer could not obtain the search warrants of the premises in question. He also ventilated that there has been compliance of Section 42(2) of the Act in letter and spirit and to that extent, there is no contradiction. It is also argued that at the relevant time, the accused was found in actual control of the premises and one of the packets was recovered from the counter near the cash box, which connects him with the alleged offence. 9. To appreciate the rival contentions of the parties, the prosecution evidence requires a critical examination. 10. PW-13 ASI Ashok Kumar is the Investigating Officer. He categorically stated that on receiving the secret information, he prepared Rukka Ext. PW-6/A and also complied with the provisions of Section 42(2) of the Act. 9. To appreciate the rival contentions of the parties, the prosecution evidence requires a critical examination. 10. PW-13 ASI Ashok Kumar is the Investigating Officer. He categorically stated that on receiving the secret information, he prepared Rukka Ext. PW-6/A and also complied with the provisions of Section 42(2) of the Act. The perusal of both these documents shows that he had recorded the reasons for not obtaining the search warrants of the premises in question. He stated that it was a case of urgency and in case of delay, the accused would have disposed of the contraband. There is no cross-examination of this witness on this point. The fact deposed if not assailed is deemed to have been admitted. Therefore, I find that there has been a proper compliance of Section 42(1) of the Act and even on scrutiny I do not find any infraction of sub-Section (2) of Section 42 of the Act. 11. In so far as the second point qua the joint possession of the premises is concerned, in this behalf reference can be made to the statement of PW-11 Kashmir Singh. He categorically stated that the premises in question was rented out to Santosh Kumar, Pawan Kumar (accused) and Manoj Kumar at the rate of ` 10,000/- per month. He had denied the recovery of the contraband from the said premises. Thus, he was declared hostile and to this effect, he was confronted with the statement Ext. PW-13/E portion ‘A’ to ‘A’, to which he denied having made such a statement. But surprisingly, the learned Public Prosecutor did not challenge his deposition with respect to the joint tenancy, as stated above. Further the presence of Manoj Kumar, the brother of the accused, at the Dhaba stands established from the intimation of arrest given in writing Ext. PW-13/F to him under the signatures of the accused. Pertinently, he was not called on the spot but the said document speaks about his presence. Even PW-13 ASI Ashok Kumar stated that he did not enquire about the fact that to how many persons, the Dhaba was rented out. PW-13/F to him under the signatures of the accused. Pertinently, he was not called on the spot but the said document speaks about his presence. Even PW-13 ASI Ashok Kumar stated that he did not enquire about the fact that to how many persons, the Dhaba was rented out. On the strength of the above evidence which remained unchallenged, it is open to the accused to rely upon that, therefore, it stands probalised that the Dhaba in question was in joint possession of the accused and his brothers, aforesaid and the prosecution has failed to prove the actual and conscious possession of the accused qua the contraband. 12. Further PW-7 ASI Babu Ram and PW-13 ASI Ashok Kumar both in their cross-examination stated that at the time of raid, many persons 40-50 in number were present at the Dhaba, a HRTC bus was also parked outside and the passengers were taking meals. The other packets were recovered from the open place beneath the Shahtoot tree near the bath room on the back side of Dhaba as stated by PW-7 ASI Babu Ram and there were lot of passengers, as aforesaid, present in the Dhaba. In these circumstances, these three packets could also not be connected with the actual and conscious possession of the accused in any manner. The recovery of the packet from the counter in the Dhaba owned by two others was from their joint possession including the accused and the accused alone could not be proved sole In-charge of the business. Further, besides him, his brother Manoj Kumar was also present there. 13. Therefore, in conclusion, it is difficult to hold that the accused was in actual and conscious possession of the contraband in question recovered from different places, as aforesaid. Thus, in my considered opinion, the case against the accused stands not proved in accordance with law. As such, the appeal is allowed and the impugned judgment of conviction and sentence passed by the learned trial Court is set aside. Consequently, the accused is acquitted by giving him the benefit of doubt. His sentence was su spended. He is discharged of his bonds. 14. The fine amount, if any already deposited, be refunded to the accused. 15. Send down the records.