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Himachal Pradesh High Court · body

2015 DIGILAW 1808 (HP)

State of Himachal Pradesh v. Tarsem Singh

2015-12-07

P.S.RANA, RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. The present appeal is instituted against Judgment dated 19.2.2015, rendered by learned Special Judge, Solan, District Solan, HP camp at Nalagarh in Session Trail No. 7-NL/7 of 2010, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for commission of offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake) has been acquitted. 2. Case of the prosecution in a nutshell is that a police party comprising of ASI Kalyan Singh (PW-16), ASI Bahadur Singh (PW-4), HC Kamal Nain (PW-12), HHC Roop Singh, C. Ashok Kumar, Constable Desh Raj (PW-14) and Constable Sher Singh (PW-6) were present at Malku Majra on patrolling duty at about 11 am, when a secret information was received that the accused was dealing in contraband and in case search of the house of accused is conducted then huge quantity of contraband could be recovered. Reasons of belief were recorded in Ext. PW-6/A under Section 42 (2) of the Act. These were reduced into writing by ASI Kalyan Singh PW-16, which was forwarded to the Superintendent of Police Baddi through Constable Sher Singh. A raiding party was constituted in which Jeet Ram (PW-1) and Lajja Ram (PW-2) were associated and all the members of the raiding party went towards the house of accused in village Malku Majra. Accused was present in the house. His consent for search was obtained upon Ext. PW-1/A. Thereafter search of the house of the accused was conducted, however, nothing incriminating was recovered. Search of cowshed of the accused was undertaken and a white coloured plastic sack was recovered which on opening was found to be containing poppy husk. Constable Desh Raj PW-4 was deputed to bring weight and scale from the shop of one Shadi Khan PW-3. The contraband weighed 15 kgs. Whole of the contraband was put back in the plastic sack and sealed with seal impression ‘A’. Specimen of seal used was taken separately and seal impression was also affixed over the NCB form Ext. PW-15/A. Rukka Ext. PW-7/A was prepared and forwarded to Police Station Baddi through Constable Desh Raj whereupon FIR Ext. PW-7/B was registered at Police Station Baddi. Specimen of seal used was taken separately and seal impression was also affixed over the NCB form Ext. PW-15/A. Rukka Ext. PW-7/A was prepared and forwarded to Police Station Baddi through Constable Desh Raj whereupon FIR Ext. PW-7/B was registered at Police Station Baddi. The case property alongwith sample seal were produced before Inspector Liaq Ram PW-15, Additional SHO, Police Station Baddi, who had resealed the plastic sack with seal impression ‘C’. Relevant columns of NCB form were filled in by Liaq Ram and impression of seal Ext. PW-15/B was taken separately. Case property was deposited alongwith sample seal and NCB form in the Malkhana with HHC Achhar Singh PW-7, who made entry in the Malkhana register. Case propety was sent to FSL Junga, through Constable Bahadur Singh PW-8. He deposited the same with FSL Junga. The chemical examiner report is Ext. PW-16/F. Special Report is Ext. PW-5/A. 3. Prosecution has examined as many as 17 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. According to him, he was falsely implicated. He was acquitted on 19.2.2015. Hence, this appeal. 4. Mr. V.S. Chauhan, Additional Advocate General, has vehemently argued that the prosecution has duly proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. Case of the prosecution, in a nutshell, is that on a secret information on 28.4.2010, , at about 11 am, ASI Kalyan Singh PW-16 alongwith other police officials went to the house of accused at Malku Majra. Jeet Ram PW-1 and Lajja Ram, PW-2 met them on the way. They were associated in the raiding party. They went to the house of the accused. Accused was present. No incriminating material was found in the house of the accused. However, they went to the cowshed of the accused adjacent to the house of the accused. Poppy husk was recovered from the cowshed. It weighed 15 kgs. Raid was conducted on the basis of a secret information. Prosecution has fully complied with Section 42 (2) of the Act. 7. PW-1 Jeet Ram and PW-2 Lajja Ram have not supported the prosecution case. They were declared hostile. However, fact of the matter is that they have admitted their signatures on the seizure memo Ext. PW-1/A to Ext. PW-1/D. Recovery of the contraband is from the cowshed. Prosecution has fully complied with Section 42 (2) of the Act. 7. PW-1 Jeet Ram and PW-2 Lajja Ram have not supported the prosecution case. They were declared hostile. However, fact of the matter is that they have admitted their signatures on the seizure memo Ext. PW-1/A to Ext. PW-1/D. Recovery of the contraband is from the cowshed. Plastic sack containing poppy husk was recovered as a result of the search of cowshed as per the statements of PW-4 Bahadur Singh, Kamal Nain PW-12, Desh Raj PW-14 and Kalyan Singh PW-16. However, fact of the matter is that no identification of the cowshed allegedly belonging to the accused was obtained from any of the inhabitants of the locality. PW-1 Jeet Ram and PW-2 Lajja Ram have categorically denied that search of the cowshed of accused was conducted in their presence and contraband was recovered. Accused was not the lone member of the family. It was necessary for the prosecution to prove that the cowshed was in exclusive possession of the accused, from which contraband was recovered. Kalyan Singh PW-16, in his cross-examination, has admitted that the family of the accused may be comprising of 4-5 members. This fact has also not been denied by Bahadur Singh PW-4, Kamal Nain, PW-12 and Constable Desh Raj PW-14. It has also come in the examination of all these witnesses that cowshed belonging to accused was situated on the side of the common path of the village. It was open. No door was fixed. No lock was put on the door of the cowshed. No key was ever recovered from the accused prior to the conducting of search. 8. Suresh Kumar DW-1 Panchayat Sahayak has proved the copy of Parivar Register Ext. D-1. According to Ext. D-1, family of the accused comprises of six members. Cowshed can safely be presumed to be in joint possession of the family members. Each member had access to the cowshed. Moreover, since the cowshed was situated on path used by villagers, other villagers had access to the cowshed. Prosecution has failed to prove that the cowshed was in exclusive possession of the accused. No suggestion was put to PW-1 Jeet Ram and PW-2 Lajja Ram that the cowshed from which contraband was recovered was in exclusive possession of the accused and the other family members residing with accused had no access to the cowshed. 9. Prosecution has failed to prove that the cowshed was in exclusive possession of the accused. No suggestion was put to PW-1 Jeet Ram and PW-2 Lajja Ram that the cowshed from which contraband was recovered was in exclusive possession of the accused and the other family members residing with accused had no access to the cowshed. 9. A Division Bench of this Court in State of Himachal Pradesh v. Asha Rani and others reported in 2014 (3) Him. L.R. (DB) 1615 has held that the contraband was recovered from kitchen of the house of accused which was not proved to be in exclusive possession of the accused and there was no evidence on record showing that the other members of the family of the accused had not access to the kitchen in question. Thus it can not be inferred on the basis of evidence on record that the accused was consciously aware of place of keeping of contraband and since other family members of the accused had also access to the kitchen from where the recovery of the contraband was effected it cannot be held that the contraband recovered was in exclusive possession of the accused. The Division Bench has held as under: 22. The prosecution case, too, gets ridden with in veracity , in , the face of the purported place of search, seizure and recovery of contraband, having not been proved, to be in the exclusive possession of the accused alone, and, the same being inaccessible to other family members. In the face of absence of evidence marking the fact, that, There were no members other than the accused, constituting the inmates of the house, as such, it has to be inferred that the said portion of the house was accessible to other residents/inmates of the house. It has to be also concluded, in sequel, that, when persons other than the accused also reside there and had access to the kitchen, rendered the kitchen, from where contraband was purportedly recovered, to, be accessible to them also. In aftermath, it has to be inferred that the accused cannot be held to be consciously aware of the place of keeping of contraband or theirs not being in its exclusive possession. In aftermath, it has to be inferred that the accused cannot be held to be consciously aware of the place of keeping of contraband or theirs not being in its exclusive possession. Consequently it, is, construed that other members of the family of the accused, who, too had access to kitchen, where from recovery of contraband, was, effected, hence, may have taken to place it there. For reiteration, when that portion of the house of the accused, was, accessible, to, others family members of the accused, therefore, it cannot be said that the said portion, from which contraband, was, recovered, was, in the exclusive possession of the accused, who alone, had exclusive knowledge, qua, its being placed there, hence, consequently, they alone are vicariously liable for the act, as alleged against them. The reasons, as, afforded by the learned trial Court, in, acquitting the accused, do not, suffer from any infirmity, or, perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court, are, well merited, and, do not merit interference. 10. Thus, the accused could not be said to be held guilty of being owner in exclusive possession of the plastic sack containing 15 kg poppy husk. 11. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.