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Madhya Pradesh High Court · body

2016 DIGILAW 1030 (MP)

Roop Chand v. State of M. P.

2016-11-11

S.K.PALO

body2016
JUDGMENT : S. K. Palo, J. The petitioner has preferred this revision under section 397 read with Section 401 of the Code of Criminal Procedure assail-ing the order dated 4.3.2016 assessed by 2nd Additional Sessions Judge, Seoni in Special Case No. 2/2015 whereby the prayer for discharge of the petitioner for offence under Sections 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was disallowed. 2. The prosecution story in brief is that on 7.4.2015, police station-Ghansour, district Seoni received information that at village- Khairikala Gwari in the hut situated in the field of accused Chain Singh contraband "Ganja" has been kept. Police raided the hut situated in the field of Chain Singh, the father of the present petitioner. Chain Singh and his son-Jugal Kishore were found in the field. Contraband "Ganja" was kept in three plastic bags and one "jute" bag. Twenty-seven packets of "Ganja" weighing 53.600 kilograms were seized. Two samples were prepared and kept for analysis. Charge-sheet was filed against the accused persons-Chain Singh and Jugal Kishore. 3. The petitioner is another son of Chain Singh who residing along with his father in the same field and in the same house. Patwari also prepared a report that the petitioner Roop Singh was also residing with his father and has no separate moveable or immovable property in village-Khairkala Gwari. Therefore, police holding that the petitioner was also having possession of the Contraband, in view of Sections 35 and 54 of the N.D.P.S. Act filed supplementary challan against him. 4. Learned Special Judge having heard both the parties, refused to discharge the petitioner. 5. Main contentions of the learned Counsel for the petitioner are that the Trial Court did not take into consideration that nothing has been seized from the possession of the petitioner. The contraband was seized from the other accused persons. The petitioner has no criminal background. The statements of the other accused persons under Section 27 of the Evidence Act showing that the seized "Ganja" belongs to the petitioner has no evidentiary value whereas here is no prima facie evidence against the petitioner to connect him with the seized "Ganja" and the statement of the petitioner under Section 27 of the Evidence Act is not admissible because there was no seizure from the petitioner. 6. 6. Learned Panel Lawyer has vehemently opposed the contentions and submitted that "Ganja" which has been seized from the "hut" situated in the field belongs to the joint possession of the petitioner as well as other co-accused persons. The petitioner was absconding therefore he was later arrested after the report of the patwari that the present petitioner Roop Singh son of Chain Singh has not separate property in the village and he is residing with his father in his house. It is further submitted that Chain Singh and Jugal Kishore were found on the spot but the petitioner is responsible equally for the crime. 7. On perusal of the statement of Satish Dubey-Head Constable, it is apparent that on seeing the police accused Chain Singh and Jugal Kishore tried to hide the bags containing "Ganja". They were apprehended. Two samples of 24 grams each were sent for verification to the Forensic Science Laboratory. The bags were seized and sealed. The name of the present petitioner is not mentioned in the statement. Neither the present petitioner was present at the time of seizure nor the hut belongs to the present petitioner. 8. The petitioner may be a co-owner of the premises (field) on which the hut is situated; but to fix criminal liability, the possession must be actual. Seizure of contraband "Ganja", which was not in exclusive possession of the petitioner, cannot constitute an offence against the petitioner. 9. In the case of Emperor v. Santa Singh, AIR (1944) Lah 339 (FB). which was a case under Section 19 (1) of the Arms Act and Section 5 of the Explosive Substances Act, following two questions were referred to Full Bench : "(i) Whether in cases where incriminating articles are recovered from a place in the occupation or possession of more person that one and it is not possible to fix the liability on any particular individual, a Court is bound to hold that, the said articles were in possession or under the control of the head of the family? (ii) If the Court is not so bound, whether it would be legally permissible to call upon all the occupants of the place to account tor the presence of the incriminating articles in their premises, and in the absence of any satisfaction explanation on their part, to hold all of them to be in possession or control of the same ?" The Full Bench answered both the above questions in the negative. 10. In the case of Mahabir Singh v. State, AIR (1951) Pat 296. it has been held that where stolen goods are recovered from the house, it is not enough to show' that the accused were the co-owners of the house. But where one of the accused who was the eldest family member was present at the time of the recovery and articles are recovered from such a place that he must have been aware of its existence, it can be presumed that he had control over the articles and "was, therefore, in law, in possession of the house whether exclusively or jointly with other members of the household. The other accused, who were co-owners of the house but were not present, cannot, however, be fixed with criminal liability. 11. In Ghuran Yadav v. State of Bihar, AIR (1971) SC 1641. recovery of six bags of nonduty paid "Ganja' from the house alleged to be belonging to the accused, in absence of legal evidence regarding the ownership of the house was held not to have been made from his possession and conviction was set aside ". 12. In the case of Kartara and others v. Emperor, AIR (1938) Lahore 320. thirteen tolas opium was recovered in a house which was occupied by three brothers live jointly, It was held that the eldest brother who could have been convicted as it was he who could be called the house-master. Conviction of other two brothers was not upheld." 13. In the present case there is no prima facie evidence that the petitioner was in exclusive possession of the "hut" from where the contraband has been sized and he may in possession of 'ganja'. In the absence of the same, prima facie, culpability of the petitioner cannot be established. 14. Conviction of other two brothers was not upheld." 13. In the present case there is no prima facie evidence that the petitioner was in exclusive possession of the "hut" from where the contraband has been sized and he may in possession of 'ganja'. In the absence of the same, prima facie, culpability of the petitioner cannot be established. 14. As it is not established prima facie that the contraband was in conscious possession of the petitioner or under the control of the petitioner, the petitioner cannot be prosecuted for possessing the contraband. Mere knowledge does not constitute possession. Unless some dominion or control is established, the petitioner cannot be prosecuted on the basis of evidence available on record. 15. Therefore, the present petition is allowed, setting aside the order dated 4.3.2016, the petitioner is discharged of offence published under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances, Act, 1985. Let a copy of this order be sent to the Trial Court.