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Himachal Pradesh High Court · body

2013 DIGILAW 379 (HP)

STATE OF HIMACHAL PRADESH v. JEET RAM

2013-05-03

RAJIV SHARMA, SURINDER SINGH

body2013
JUDGMENT SURINDER SINGH, J. 1. CHALLENGE in this appeal is laid to the acquittal of the respondent (hereinafter referred to as the accused) under Sections 15 and 18 of the NDPS Act, for allegedly keeping in possession 14 kg. of poppy-husk and 350 grams of opium in 'Pashubara'(cowshed), which was having no roads. 2. WE have heard Shri J.S. Rana, learned Assistant Advocate General and also Shri Ramakant Sharma, Advocate, for the accused. The accused was acquitted by the learned trial Court on the ground that the prosecution failed to prove the possession of accused qua the cowshed fromwhere the alleged recovery of poppy-husk was effected. 3. TO appreciate rival contentions, we have re- examined and re-assessed the evidence on record. 4. THE case of the prosecution is that patrolling party headed by PW-15 SI Raj Kumar, was on patrolling around 2.15 p.m. at Jagatkhana M-Tex factory on 2.3.2007. They associated one Bhagat Ram and Kamal Dhindhora and formed a raiding party on having received information, as stated by PW- 15 SI Raj Kumar, that the accused was dealing in narcotics and reached the house of the accused. He was found present there. The police informed him about suspicion to which they entertained and told him to get conducted the search of his house as well as the cowshed. An option was given to him in terms of memo Ext.PW-3/A. He consented to be searched by the police present there. The photographer was also summoned by the police, but nothing was recovered from the house of the accused. However, while searching the cowshed located behind his house, the door and the walls whereof were of grass, the Investigating Officer on entering inside noticed loose soil on the floor in its western side and unearthed a bag containing five stapled polythene packets of poppy-husk kept in a big polythene bag. After removing some soil further, they also recovered a plastic container having 350 grams of opium. The poppy-husk was 14 kg. and the opium 350 grams. The packets of poppy-husk were emptied and poured in a big polythene bag. Two samples of 200 grams were separated therefrom and sealed with impression 'T'. The remaining bulk was also sealed with the same seal. These samples were marked as S1 and S2. 5. THE police also took two samples of 25 grams each from the alleged recovery of opium. Two samples of 200 grams were separated therefrom and sealed with impression 'T'. The remaining bulk was also sealed with the same seal. These samples were marked as S1 and S2. 5. THE police also took two samples of 25 grams each from the alleged recovery of opium. These were also sealed with the same seal and marked as S3 and S4. The remaining opium was sealed separately with the same seal in presence of the aforesaid witnesses. 6. THE case property was taken into possession vide memo Ext.PW-3/C. Sample of seal was also taken separately on a piece of cloth Ext.PW-3/D. Ruka PW-15/A was sent for registration of the case, vide which FIR Ext.PW-13/B was registered. Police also filled up the NCB forms, in triplicate, qua the recoveries and these are Ext.PW-15/B and Ext.PW-15/C. Site plan Ext.PW-15/D was prepared and the photographs were clicked. The accused was arrested. He was informed about the grounds of arrest. 7. THE case property was deposited in the Malkhana with the MHC. One sample parcel of poppy husk and one that of opium were sent for analysis to the forensic science laboratory through PW-8 Constable Mohinder Kumar. As per the report Ext.PW-15/F, a sample parcel was that of opium and another of poppy-husk/opium poppy. 8. THE police had also taken into possession jamabandi Ext.PW-2/A qua the ownership and possession of the cowshed. On 3.3.2007, PW-15 SI Raj Kumar had moved an application Ext.PW-15/G to the Judicial Magistrate Ist Class, Nalagarh to obtain certificate and produced the case property before him. The Magistrate issued the certificate Ext.PW-15/H. 9. AFTER completing investigation, challan was presented in the Court for trial of the accused. 10. AT the end of the trial, the accused was acquitted on the ground that the prosecution failed to prove the actual and conscious possession of the cowshed qua the accused. We have re-examined the evidence on record. 11. PW -3 Kamal Dhindhora stated that the police officials had conducted the search of Chhapper, allegedly belonging to the accused, which was having thatched walls and doors situated behind his residential house. It was open and the alleged recovery was effected from the western corner of the said cowshed. The samples were separated and sealed, as aforesaid. Pertinently, in his cross examination, he stated that the family of the accused consisting of 5-6 members was living jointly. It was open from its sides. It was open and the alleged recovery was effected from the western corner of the said cowshed. The samples were separated and sealed, as aforesaid. Pertinently, in his cross examination, he stated that the family of the accused consisting of 5-6 members was living jointly. It was open from its sides. Even PWs-14 and 15, police officials, also made the same statement with respect to the condition of the cowshed. DW-1 Bhagat Ram, who was examined by the accused, was working in the fishery-farm as labourer nearby. According to him, where the police officials were sitting in the house that was owned and possessed by the accused and his brothers. Police also obtained jamabandi Ext.PW-2/A of the cowshed in question. It shows that Khasra No.535/449 is in the ownership and possession of the accused and his brothers as well as his sisters. Further, we also take notice from the site plan prepared by the police during the investigation that the said cowshed is located between the alleged house of the accused and his brother Hardev and has a courtyard in between and a common path also exists beside it. 12. ON scrutiny of evidence, in our considered opinion, the prosecution has failed to prove the actual and conscious possession of the accused of the cowshed in question. Further, it is also important to note that no connecting evidence was brought on record to link the accused with the recovery from the cowshed. The said cowshed was open and not having any cattle inside. Thus, the prosecution is devoid of any legal proof of possession, as such the findings of acquittal recorded by the learned trial Court are borne out from the record, which require no interference. As such, the appeal being without merit stands dismissed. The bail bonds entered upon by the respondent during the proceeding of the case stand discharged.