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Himachal Pradesh High Court · body

2013 DIGILAW 248 (HP)

TIKAM RAM v. STATE OF HIMACHAL PRADESH

2013-04-05

DEV DARSHAN SUD

body2013
JUDGMENT DEV DARSHAN SUD, J. - 1. THE appellant challenges his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the ND&PS Act'). 2. THE prosecution case is that on 1.5.2011 PW10 ASI Yash Pal, HHG Hans Raj and HHG Rewat Ram of Police Station, Bhuntar had gone to Bhallan for destruction of opium poppy and cannabis plants. PW4 C. Sanjiv also joined the party. At village Dhekhli they found that there were around 5000 poppy plants in the area of two biswas land which had been intermingled with pea crop. The Investigating Officer PW10 ASI Yash Pal directed C.Sanjiv to get independent witness, who on search found none and thereafter PW4 C. Sanjiv Kumar and HHG Hans Raj were associated as witnesses in the proceedings. PW10 ASI Yash Pal conveyed information about cultivation of opium to Dy.S.P., who directed them to destroy the plants after retaining representative samples etc. Photographs of the cultivated poppy plants were taken, the sample was preserved and the case of the prosecution proceeded thereafter. During investigation, the tatima of land Ext.PW6/B, copy of jamabandi Ext.PW6/C with respect to Khasra No. 3390 which was the area on which the poppy was cultivated was obtained and demarcation report Ext.PW6/A was prepared which shows that the poppy was in fact cultivated on this Khasra number. The prosecution case rests on the evidence of PW7 Bhotli Devi and PW8 Gehar Singh, mother and brother of the accused respectively and their affidavits Ext.PW7/A and Ext.PW8/A. The case of the prosecution is that this land in Khasra No. 3390 was in exclusive share and possession of the accused and had been allotted to him as such during family partition. The learned trial Court on assessment of the evidence convicted the accused for offences, as aforesaid. 3. I notice that approach of the learned Court below cannot be commended for the reason that the offence is serious and some care and caution was required for the assessment of the evidence. The learned Court holds that Ext.PW6/C, which is the jamabandi, shows that the land is in joint possession of the parties and yet proceeded to convict the appellant on the basis of two affidavits Ext.PW7/A and Ext.PW8/A despite the fact that these witnesses were in relation of the accused and later on, they resiled from their statements. The learned Court holds that Ext.PW6/C, which is the jamabandi, shows that the land is in joint possession of the parties and yet proceeded to convict the appellant on the basis of two affidavits Ext.PW7/A and Ext.PW8/A despite the fact that these witnesses were in relation of the accused and later on, they resiled from their statements. Be that as it may, without there being any substantive evidence that the accused was in exclusive possession of the land and he was responsible for cultivation of this crop, no conviction could have followed. 4. LEARNED Court below holds that testimony of a hostile witness cannot be discarded. At this juncture, I note that the conscious and exclusive possession of the accused of the land, on which the poppy was cultivated, is required to be proved on record of the case, which evidence I find totally lacking. There is no evidence on record to show/suggest that there has been partition of the land. I also note that the learned Court below has ignored the evidence of DW1 Tedhi Singh as also Ext.D-3 which shows that Khasra No. 3390 is Nautor land. Be that as it may, the fundamental point regarding exclusive possession of land has been ignored by the learned Court below. 5. In Mohd. Alam Khan v. Narcotics Control Bureau and another AIR 1996 SC 3033 the Supreme Court was dealing with the ownership and possession of the flat from which the contraband was seized. In Madan Lal and another vs. State of H.P. (2003)7 SCC 465 the Supreme Court holds: "22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (1979)4 SCC 274 to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes. 23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (1979)4 SCC 274 to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes. 23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantal v. State of M.P. (1972)2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 25. The word "possession" means the legal right to possession (See Heath v. Drown (1972)2 All ER 561). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976)1 All ER 844.) (at p.472) I need not consider/multiply precedent any further. On the evidence on record, I cannot persuade myself to hold that the exclusive/conscious possession of the accused or his control to the extent that he permitted the land to be used for cultivation of the narcotic substance stands established. In this eventually, he was entitled to acquittal. I notice that affidavits Ext.PW7/A and Ext.PW8/A hardly constitute conclusive evidence to establish exclusive possession of the accused of the land more especially when these very witnesses, who have filed these affidavits, state that they were obtained from them by the police under pressure. In these circumstances the appeal stands allowed. Bail bonds furnished by the accused are discharged.