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2016 DIGILAW 1782 (HP)

State of Himachal Pradesh v. Govind Singh

2016-08-26

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Busehar, dated 12.6.2009, in NDPS Act Case No.16 of 2007. 2. Briefly stating the facts giving rise to the present appeal are that accused/respondent (hereinafter referred to as ‘accused’) was coowner in possession of land comprised in Khata/Khatauni No.250/309, Khasra No.1824, measuring 5 bighas in Phati Jhalair, Tehsil Nirmand, District Kullu, H.P. Accused had planted apple plants in the area cultivated by him. It was alleged that accused had sown poppy crop in a portion of his Khasra No.1824. In the month of June, 2005, the poppy crop had been fit for extraction of opium. PW-15 SI/SHO Daya Sagar, Police Station, Nirmand, after receipt of secret information against the accused had registered report No.6, dated 1.6.2005, Ex.PW5/A. Further, PW-15 had formed a raiding party and had proceeded to raid and search field No.1824 of the accused. PW-13 Tikkar Singh and PW-14 Jhabe Ram, Police Officials had also accompanied PW-15 for raid and search. PW-3 Beli Ram and PW-4 Ram Lal had been associated in the raiding party as non-official witnesses. PW-15 alongwith non-official witnesses reached field No.1824 on 1.6.2005 at about 10:30 AM. The accused was not present in his house. In the presence of PW-3, PW-4 and the Police Officials accompanying him, SI/SHO Daya Sagar had uprooted the poppy plants. It was found that there were in all 120 poppy plants at the stage of flowering. Buds had developed in the Poppy plants. Incision had been applied to Poppy buds for extraction of opium. PW-15 had also taken photographs of the field as well poppy plants. Ten Poppy plants had been taken as sample in two packets. Sample poppy plants and rest of the poppy plants had been separately sealed in three packets with seal ‘A’ and had been taken into possession vide recovery memo Ex.PW3/A. Specimen impression of seal ‘A’ was Ex.PW3/B. PW-15 had also prepared report Ex.PW13/A and thereafter FIR was registered. After investigation the challan was presented in the Court. 3. The prosecution in order to prove its case has examined as many as 15 witnesses. After investigation the challan was presented in the Court. 3. The prosecution in order to prove its case has examined as many as 15 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused. 4. Learned Additional Advocate General appearing on behalf of the appellant has argued that the appeal is required to be allowed and the accused is liable to be convicted, as the prosecution has proved the guilt of accused beyond the shadow of reasonable doubt. 5. On the other hand, learned counsel appearing on behalf of the accused argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and so, the accused was rightly acquitted. 6. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and has minutely scrutinized the statements of the prosecution witnesses. 7. PW-15 SI/SHO Daya Sagar, has deposed that on 1.6.2005, he received a secret information and thereafter, he recorded daily diary report at 10:10 AM, Ex.PW5/A and constituted a raiding party. He has further deposed that he alongwith members of raiding party proceeded towards the field of the accused and PW-3 Beli Ram and PW-4 Ram Lal, were also associated as independent members of the raiding party. On checking of the field of the accused, the same was found under Poppy cultivation and there were 120 Poppy Plants, ready for extraction of opium. 10 Poppy plants were taken out as sample in two separate packets and rest of the plants were separately sealed in three packets with seal ‘A’ and had been taken into possession vide recovery memos Ex.PW3/A and Ex.PW3/B. Seal ‘A’ was handed over to Ram Lal, Lamberdar and packet Ex.P-1 containing 110 Poppy plants, Ex.P-3 is sample packet of Poppy plants. He has further deposed that he had updated NCB form, Ex.PW15/A, prepared report Ex.PW13/A and had routed the same to Police Station for registration of FIR. He had deposed that he had directed the Village Patwari to carry out the demarcation of the land in dispute. The village Patwari had furnished report Ex.PW12/A, which was duly signed by the Tehsildar. He has further deposed that he had updated NCB form, Ex.PW15/A, prepared report Ex.PW13/A and had routed the same to Police Station for registration of FIR. He had deposed that he had directed the Village Patwari to carry out the demarcation of the land in dispute. The village Patwari had furnished report Ex.PW12/A, which was duly signed by the Tehsildar. He has deposed that he had arrested the accused on 2.6.2005 after having apprised him of the grounds of arrest vide document Ex.PW15/D. He has admitted that as per revenue record i.e. jamabandi, Khasra No.1834 is jointly owned and possessed by several persons including the accused. 8. PW-1 Constable Guddu Ram has deposed that on 3.6.2005, Amar Singh/PW-2 had handed over one sample packet of Poppy plants, specimen impression of seal ‘A’ and NCB form to him with a direction to deposit these items with Chemical Examiner, Kandaghat. He had deposited the sample packet and other items with the Chemical Examiner on 3.6.2005. PW-2 Amar Singh had entered the case property in the relevant register and had entrusted one sample packet of Poppy plants to PW-1 with a direction to deposit the sample packet and other items with the Chemical Examiner, Kandaghat. PW-3 Beli Ram and PW-4 Ram Lal have not supported the case of prosecution. They had deposed that they have not seen the accused cultivating the Poppy plants. The police had not recovered the Poppy plants from the field of the accused. PW-5 Mohar Dass had tendered in evidence reports No.6 and 19, which are Ex.PW5/A and Ex.PW5/B. PW-6 Om Parkash had receipted special report, Ex.PW6/A from S.D.P.O. PW-7 ASI Om Chand, had prepared the final report against the accused. PW-8 Constable Moti Ram had taken copy of report No.6 to SDPO, on 1.6.2005. The evidence of PW-9 Sunil Kumar, PW-13 Tikkam Singh, PW-14 Jhabe Ram and PW-15 Daya Sagar, Police Officials had not been supported by any independent and nonofficial witness. PW-10 Ses Ram, Patwari, had prepared jamabandi Ex.PW10/A and field map Ex.PW10/B of Khasra No.1824. PW-11 SI Purshottam had prepared final report under Section 173 Cr. P.C. PW-12 Chander Lal, Tehsildar, had countersigned the report Ex.PW12/A of PW-10. 9. It is on record that the Police was not accompanied by the Revenue Official at the time of raid and search. PW-10 Ses Ram, Patwari, had prepared jamabandi Ex.PW10/A and field map Ex.PW10/B of Khasra No.1824. PW-11 SI Purshottam had prepared final report under Section 173 Cr. P.C. PW-12 Chander Lal, Tehsildar, had countersigned the report Ex.PW12/A of PW-10. 9. It is on record that the Police was not accompanied by the Revenue Official at the time of raid and search. PW-15 had deposed that he had directed the Village Patwari to demarcate the land wherefrom recovery had been made. PW-10 Ses Ram Village Patwari, as per report Ex.PW12/A was stated to have carried out demarcation in the presence of Police Officials. In his deposition, PW-10 had not even remotely deposed that the demarcation of the land in dispute was made by him. PW-12 Chander Lal, Tehsildar had countersigned the report Ex.PW12/A of Village Patwari. He had not carried out the demarcation. Since PW-10 did not utter a single word in support of demarcation, therefore, the evidence of PW-12 was of no consequence. This apart no Police Official had deposed that he had been present at the time of demarcation of the land in dispute by the Village Patwari. PW-9, PW-13 and PW-14 have nowhere deposed that they had pointed out the site in dispute to the Village Patwari. PW-15 had simply deposed that he had directed the Village Patwari to demarcate the land in dispute. In these circumstances, it is difficult to hold that the accused has planted Poppy plants in Khasra No.1824. 10. PW-9, PW-13 and PW-14 had not signed the recovery memo or any other document pertaining to this case. The statements under Section 161 Cr. P.C of these three Police Officials had been recorded after about one year of the recovery. There was no explanation available with the prosecution, as to why statements under Section 161 Cr. P.C of these three Police Officials had been recorded on 1.6.2005. It was difficult for these Police Officials to recollect the facts after about one year. The accused had not been present at the time of raid and search. Recovery, if any, made by the Police in his absence could not be upheld. 11. The accused was not the sole owner of Khasra No.1824. The prosecution had collected jamabandi Ex.PW10/A of this Khasra number for the year 1998/99, which shows that there were 5-6 other co-owners of this Khasra number. Recovery, if any, made by the Police in his absence could not be upheld. 11. The accused was not the sole owner of Khasra No.1824. The prosecution had collected jamabandi Ex.PW10/A of this Khasra number for the year 1998/99, which shows that there were 5-6 other co-owners of this Khasra number. All of them had been recorded joint owner-in-possession of Khasra No.1824. The prosecution did not examine the other co-owners for establishing the exclusive possession of the accused of Khasra No.1824. The Village Patwari had deposed that at the time of spot inspection, he had not noticed the Poppy plants cultivation in the field in dispute. Such statement of village Patwari cut at the very root of the case of the prosecution. 12. The word ‘possession’ and ‘control’ mean something more than mere constructive or legal possession and control. Possession and control required to constitute an offence under the Act must mean conscious possession and actual control. As the possession of incriminating articles constituted serious criminal offence, there must be mensrea or guilty knowledge before a person could be convicted of such possession. Consequently, where incriminating articles were recovered from a place in the occupation or possession of more than one person, it was not possible to fix liability on any particular individual nor could the court proceed to hold incriminating article in possession or control of so many persons. The possession of incriminating article of which a person was not conscious could not constitute any offence. The doctrine of constructive possession could not be applied to criminal jurisprudence. In order to decide whether contraband had been in possession of the accused, the Court had to consider not merely whether the article had been lying in the land of the accused or at a place accessible to others, but a number of other circumstances the proof of which would persuade the Court to come to the conclusion that the contraband had been under the control and absolute dominion of the accused. Neither the prosecution witness has supported its case nor is the land identified to be in possession of the accused, as there is no proper demarcation of the land. The prosecution case is that Poppy Plants were found in Khasra No.1824, cannot to be exclusive proof of Poppy Plants in Khasra No.1824, as the demarcation of the land was not proved on record. The prosecution case is that Poppy Plants were found in Khasra No.1824, cannot to be exclusive proof of Poppy Plants in Khasra No.1824, as the demarcation of the land was not proved on record. Further, PW-3 Beli Ram and PW-4 Ram Lal had refused to support the prosecution case. They have stated that they did not see the accused cultivating the Poppy plants and no recovery was effected in their presence as alleged by the prosecution. In these circumstances, when the demarcation of the land is not proved and the independent witnesses have not supported the case of prosecution, this Court comes to the conclusion that the prosecution has failed to prove the guilt of the accused conclusively and beyond the shadow of reasonable doubt. So, there is no illegality and infirmity in the findings as recorded by the learned Court below. 13. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. 14. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 15. In view of the aforesaid decisions of the Hon’ble Supreme Court and discussion made above, I find no merit in this appeal and the same is accordingly dismissed.