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2013 DIGILAW 971 (HP)

State of Himachal Pradesh v. Sita Ram

2013-11-20

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J.: ” Challenge herein is to the judgment dated 30.4.2013, passed by the learned Sessions Judge, Shimla, exercising the powers of Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ' the Act” , in short), whereby the respondents (hereinafter to be referred as ' the accused” ) have been acquitted of the charge framed under Sections 20, 29, 61 of the Act against each of them. 2. The legality and validity of the judgment under challenge in this appeal has been assailed on several grounds, however, mainly that learned trial Court has failed to appreciate the prosecution evidence in its right perspective and to the contrary based the findings of acquittal on surmises and conjectures. The evidence as has come on record by way of the testimony of PW-1 ASI Gian Chand and PW-9 ASI Veena (I.O.) has erroneously been brushed aside and undue weightage has been given to the testimony of PW-2 Rakesh Kumar, who allegedly turned hostile to the prosecution. The present, therefore, is stated to be not a case where two views emerge on record and rather from the cogent and reliable evidence as has come by way of the testimony of police officials PW-1 and PW-9 and also the link evidence, the prosecution allegedly satisfactorily pleaded and proved its case against the accused and as such the impugned judgment has been sought to be quashed and the accused to be convicted. 3. Learned Additional Advocate General while drawing our attention to the oral as well as documentary evidence and also the impugned judgment has forcefully contended that the recovery of the Charas weighing 4 Kg. 847 grams stands satisfactorily proved from the physical and conscious possession of the accused persons and according to him, they both have been erroneously acquitted of the charge. 4. Learned Counsel representing the accused, however, has repelled the contentions so raised on behalf of the appellant-State and while drawing the attention of this Court to the prosecution evidence, particularly as has come on record by way of the testimony of the Investigating Officer ASI Veena (PW-9) as well as that of PW-2 Rakesh Kumar, the independent witness, urged that the Court has not committed any illegality or irregularity while disbelieving the prosecution case and acquitting both the accused. 5. 5. The allegations against the accused, as disclosed from the record, in a nutshell are that on 26.5.2012 around 9.30 a.m. they were travelling in HRTC bus No.HP-34-7512, which was stopped by the police party comprising PW-9 ASI Veena, ASI Gian Chand, Head Constable Balbir Singh, HHC Laiq Ram, HHG Dayal Singh at Pohach Nallah on Chhaila-Theog road, around 9.30 a.m. for checking the bus. The accused were found occupying seat Nos.32 and 34, whereas seat No.33 in between them being not occupied by anyone, hence was lying vacant. At seat No.33, i.e., between both of them one bag was lying kept and on enquiry, accused Sita Ram disclosed that the said bag belongs to him and that the same contained the articles of accused Dilmi Ram also. On suspicion PW-9 checked the bag in the presence of PW-2 Rakesh Kumar, driver of the bus and Basia Ram, its conductor. One Khakhi coloured carry-bag was found kept therein. On opening the said carry-bag, Charas weighing 4 Kg. 847 grams in the shape of sticks and balls was found to be kept therein. The recovered Charas was kept in that very carry-bag and the same was put in the bag and sealed in a parcel of cloth with nine seal impressions ' N' Œ. Seizure memo Ext.PW-1/B was prepared. Sample of seal Ext.PW-1/C was drawn and NCB-I forms Ext.PW-5/D were also filled. Spot map Ext.PW-9/A was prepared. 6. Rukka Ext.PW-9/A was prepared and sent along with NCB-I forms as well as case property through PW-1 Gian Chand to Police Station, State CID Bharari, for registration of FIR against the accused. The accused were interrogated and arrested. They were informed in writing about the grounds of arrest vide memos Exts.PW-9/D and 9/E. Their personal search was conducted vide memos Exts.PW9/F and 9/G. The investigation on the spot allegedly taken place in the presence of PW-2 Rakesh Kumar and Basia Ram. 7. On the completion of the investigation on the spot, the accused were brought to Police Station, Bharari. Later on special report Ext.PW-8/A was also prepared and delivered to Shri Sunil Negi, Dy. 7. On the completion of the investigation on the spot, the accused were brought to Police Station, Bharari. Later on special report Ext.PW-8/A was also prepared and delivered to Shri Sunil Negi, Dy. S. P. The appointment and duty roster of Rakesh Kumar and Basia Ram, driver and conductor of the bus, respectively Exts.PW-8/B and 8/C, were obtained by submitting application Ext.PW8/A. The case property was sent to Forensic Science Laboratory, Junga for testing and on the receipt of the report Ext.PY, Challan against the accused was filed in the Court. 8. It is seen that the learned trial Court after framing charge under Sections 20, 29, 61 of the Act against both the accused, proceeded to record prosecution evidence, as both the accused did not plead guilty and rather claimed trial. Analyzing the oral as well as documentary evidence and also law applicable to a case of this nature, learned Special Judge has concluded that the prosecution has failed to prove its case against the accused beyond all reasonable doubt and as such both have been acquitted of the charge framed against each of them. 9. It is seen that for attracting the Penal provisions enshrined under Sections 20, 29 and 61 of the Act, the recovery of the contraband from the conscious and exclusive possession of the accused is a sine qua non. The law on the issue is no more res integra. 10. True it is that word ' possession' Œ does not find mention any where under the Act, however, defined by the Bombay High Court in Rubyana alias Smita Sanjib Bali v. State of Maharashtra and others, 1996 Cri LJ 148, which reads as follows: ' The sine qua non for attracting the penal provisions, viz. Sections 20 and 21 of the N.D.P.S. Act, and Section 25 read with Section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms. The term ' possession' Œ is not defined in the N.D.P.S. Act. The term ' possession' Œ has been judicially construed to mean, in various decisions, as under :” ' Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. The term ' possession' Œ is not defined in the N.D.P.S. Act. The term ' possession' Œ has been judicially construed to mean, in various decisions, as under :” ' Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. (See in this connection Dula Singh v. Emperor, AIR 1928 Lahore 272 : (1928 (29) Cri LJ 481), Kuldip Chand v. Emperor, AIR 1934 Lahore 718 : (1935 (36) Cri LJ 300), Sunder Singh v. Emperor, AIR 1936 Lahore 738 : (1936 (37) Cri LJ 939), and Ram Charan v. Emperor, AIR 1933 All 437 : (1933 (34) Cri LJ 930)). The Apex Court in Supdt. and L.R. v. Anil Kumar Bhunja (1979) 4 SCC 274 : (1979 Cri LJ 1390), observed that the test for determining ' whether a person is in possession of anything is whether he is in general control of it.' Œ The Apex Court, after examining Salmond” s jurisprudence and other earlier decisions rendered by the Court, observed thus (at pp 1392-93 of Cri LJ) :” ' 13. ' Possession” is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of ' possession” uniformally applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of ' possession” . Much of this difficulty and confusion is (as pointed out in Salmond” s Jurisprudence, 12th Ed. 1966) caused by the fact that possession is not purely a legal concept. ' Possession” , implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, 11th Ed.) 14. 1966) caused by the fact that possession is not purely a legal concept. ' Possession” , implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, 11th Ed.) 14. According to Pollock and Wright, when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing. 15. While recognising that ' possession” is not a purely legal concept but also a matter of fact, Salmond (12th Ed. page 52) describes ' possession, in fact” , as a relationship between a person and a thing. According to the learned author the test for determining ' whether a person is in possession of anything is whether he is in general control of it” . 16. In Gunwantilal v. State of M.P. (1973) 1 SCR 508 : (1972 Cri LJ 1187), this Court while noting that the concept of possession is not easy to comprehend, held that, in the context of Section 25(a) of the Arms Act, 1959, the possession of a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognized that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed (at p. 1189 of Cri LJ) : In any disputed question of possession, specific facts submitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question.' Œ 11. Now adverting to the evidence produced by the prosecution to prove the recovery of the Charas from the possession of the accused, true it is that as per the testimony of PW-1 ASI Gian Chand and PW-9 ASI Veena, both accused were occupying seat Nos.32 and 34. The so called independent witness PW-2 Rakesh Kumar, driver of the bus, has not supported the prosecution case to this effect. Ruka Ext.PW-9/B contains the first version qua the place where the bag was lying in the bus and as per this document, it was a green coloured rucksack (Pithu), which was kept concealed by the accused on the space between them, i.e. seat No.33. PW-1 ASI Gian Chand tells us that both accused were occupying seat Nos.32 and 34 and that in between them on seat No.33 one rucksack ' Mungiya” in colour was hidden by both of them. Interestingly, it has come in his cross-examination that nothing connecting the ownership of the bag with the accused was found in the bag. Not only this, according to him, bag was not in the possession of either of the accused persons nor was it visible on the seat. It has only its strap which was visible. It was not concealed with cloth or anything else. 12. PW-9 ASI Veena, however, states that bag was lying in between them at seat No.33. She has not stated that it was hidden by both accused. Her statement in cross-examination tells us that the bag was not found in the possession of either of the accused and rather the same was found to be placed in between both the accused, who had covered the same with their legs. She, however, admitted that the factum of the bag having been hidden by both the accused with their legs, has not come in the statements of the prosecution witnesses. However, in the same breath she has come forward with the version that the bag was lying kept on seat No.33 on upper side. She also admits that as per the statement of Basia Ram, which she has correctly recorded, the bag was found hidden by both the accused with their legs. She also admits that in the recovery memo Ext.PW1/B there is no mention of the bag being hidden by both the accused with their legs. 13. She also admits that as per the statement of Basia Ram, which she has correctly recorded, the bag was found hidden by both the accused with their legs. She also admits that in the recovery memo Ext.PW1/B there is no mention of the bag being hidden by both the accused with their legs. 13. Therefore, the evidence as has come on record by way of testimony of the so called star prosecution witnesses, i.e., PW-1 and PW-9 none else, but one member of police party as well as the Investigating Officer, respectively, demolish the entire prosecution case qua recovery of the Charas from the exclusive and conscious possession of the accused. If coming to the statement of the so called independent witnesses PW-2 Rakesh Kumar, no doubt, he was on the wheel of the bus, checked by the police party on that day, however, as per his version all passengers were made to alight from the bus and it is thereafter when the same checked, the police party came out along with one bag. On enquiring from the passengers as to whom the said bag belongs, none of them claimed the same to be theirs. On checking of the tickets, two passengers were found travelling without tickets in the bus. It is only those two persons who were taken by the police personnel with them along with the bag. The bag was neither searched in his presence nor Charas recovered therefrom and rather he drove the bus towards Theog side where the police personnel were present with Adda-Incharge and they requested Adda-Incharge to allow this witness and conductor Basia Ram to associate with the investigation of the case. The suggestions to the contrary in his cross-examination conducted on behalf of the prosecution have been denied being wrong. In his cross-examination he rather has come forward with the version that the bag was collected by the police from the rack inside the bus meant for keeping luggage of the passengers. Not only this, but the accused, according to him, were not sitting together, but one of them was sitting in front portion of the bus, whereas the other in the rear portion. The bag was also not collected from the rack nearby their seats. Not only this, but the accused, according to him, were not sitting together, but one of them was sitting in front portion of the bus, whereas the other in the rear portion. The bag was also not collected from the rack nearby their seats. He admitted his signatures on the documents, however, according to him, the same were obtained at bus-stand, Theog when asked by the Adda-Incharge to associate himself with the investigation. Although as per his version Basia Ram is conductor with him for the last 4-5 years, however, he is not conversant with his signatures nor did he identify the signatures of said Basia Ram. Therefore, PW-2 the so called independent witness has not supported the prosecution case qua the recovery of the Charas from the possession of the accused and as regards Basia Ram, he has not been examined. 14. The fact, therefore, remains that the prosecution has miserably failed to prove its case beyond all reasonable doubt that the bag has been recovered from the exclusive and conscious possession of the accused alone and none else. Therefore, it is not necessary for us to go into the remaining evidence, which at the most could have been relied upon as link evidence, had the prosecution been able to prove its case beyond all reasonable doubt that the Charas was recovered from the exclusive and conscious possession of the accused alone and none else. We, therefore, are of the considered opinion that the Court below has not committed any illegality or irregularity while acquitting the accused of the charge. The impugned judgment, thus, calls for no interference by this Court. 15. For all the reasons stated hereinabove this appeal fails and the same is accordingly dismissed. Appeal dismissed.