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2025 DIGILAW 396 (HP)

State of H. P. v. Suresh Kumar

2025-03-19

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

body2025
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the acquittal of the respondent for the offence punishable under Sections 15 (b) and 20 (b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS Act”), the appellant-State has filed the instant appeal. 2. The case of the prosecution in brief is that on 29.07.2013, ASI Rajinder Singh alongwith HHC Ramesh Kumar, C. Surinder Singh and C. Kuljesh Kumar vide rapat Ext. PW5/A was on routine patrol duty towards Luddar Mahadev, Bhanwin, Sulgwan and at about 2:00 p.m. when reached in village Sulgwan, he received a secret information that respondent Suresh Kumar resident of village Jahu Kalan is engaged in selling of charas and bhukki (poppy straw) to public from his residential house and cattle shed and in case a search is conducted in his residential house and cattle shed, the alleged contraband can be recovered in large quantity. 3. The information was reduced into writing as per the provisions of Section 42(2) of the NDPS Act vide Ext. PW9/A and through C. Surinder Kumar to Dy. S.P. Head Quarter, Hamirpur. Thereafter, ASI Rajinder Singh contacted Chaman Lal, Pardhan and Duni Chand, Ward Member of Gram Panchayat Jahu Kalan on telephone and called them to the house of the respondent. 4. At about 2:30 p.m., when the police party reached on a road near to the house of the respondent, Chaman Lal and Duni Chand met them. On joining them, a raiding party was formed. On reaching the house of the respondent, he was found there and in the presence of the witnesses, was apprised regarding search to be conducted in his residential house and cattle shed. Before conducting search, the personal search of the police party was given to the respondent vide search memo Ext.PW6/B. 5. Therefore, the search of house and cattle shed of respondent in presence of witnesses was conducted. During search of cattle shed one black coloured back pack (pithu bag) was recovered from its upper storey hidden in Toori (wheat straw). The bag on being searched in presence of the witnesses, the same was found containing two (2) polythene bags. On opening one poly bag, it was found containing bhukki and the other poly bag was found containing sticks of charas which were identified as such on the basis of experience and smelling vide memo Ext. The bag on being searched in presence of the witnesses, the same was found containing two (2) polythene bags. On opening one poly bag, it was found containing bhukki and the other poly bag was found containing sticks of charas which were identified as such on the basis of experience and smelling vide memo Ext. PW6/C. These were weighed with electronic weighing scale upon which bhukki was found to be 2 kg, 660 grams and charas was found to be 6 grams 80 miligrams. 6. Therefore, the bhukki alongwith the poly bag was put into said black bag pack and was sealed in a cloth parcel with five seals of impression ‘T’. The poly bag containing charas was packed in separate cloth parcel sealed with three seals of impression ‘T’. NCB-1 form in triplicate as Ext. PW11/B was filled. Facsimile seal impression ‘T’ was taken on the forms. The above parcels Ext. P1 containing back pack Ext. P2 and poly bag containing bhukki Ext. P3 and parcel Ext. P4 containing charas in poly bag Ext. P5 in presence of above witnesses were taken into possession vide memo Ext. PW6/A. The impression of sample seal ‘T’ was taken on separate piece of cloth as Ext. PW11/A and after use was handed over to Chaman Lal. 7. Thereafter, ASI Rajinder Singh scribed rukka Ext.PW11/C and sent the same though HHC Ramesh Kumar to police station Bhoranj on the basis of which FIR Ext. PW11/D was registered and on returning handed over the case file to ASI Rajinder Singh for investigation. He accordingly prepared spot map and recorded statements of witnesses and also took photographs of the contraband as Ext. PW11/J-1 to Ext. PW11/J-H. 8. The respondent was arrested on the spot vide arrest memo Ext. PW11/H. On reaching police station, he handed over the case property alongwith NCB-1 form in triplicate and sample seal ‘T’ for resealing before Inspector/SHO Om Chand. He resealed parcel Ext. P1 with three seals of impression ‘R’ and parcel Ext. P4 with 2 seals of impression ‘R’ vide memo Ext. PW8/A. Facsimile seal impression was taken on NCB-1 form and the sample seal was taken on separate piece of cloth as Ext. PW8/B. Thereafter the parcels were handed over to MHC police station Bhoranj, who sent the case property through HHC Karan Chand to FSL Junga for chemical examination and received the same alongwith the report Ext. PW8/A. Facsimile seal impression was taken on NCB-1 form and the sample seal was taken on separate piece of cloth as Ext. PW8/B. Thereafter the parcels were handed over to MHC police station Bhoranj, who sent the case property through HHC Karan Chand to FSL Junga for chemical examination and received the same alongwith the report Ext. PW11/K. 9. On completion of investigation the case file was handed over to Inspector/SHO Om Chand who on preparing challan presented the same before the Court for trial of the respondent for commission of offence punishable under Sections 15 and 20 of the NDPS Act. 10. The respondent was summoned and compliance of the provisions under Section 207 Cr.P.C. was made. A prima facie case for committing the offence punishable under Section 15(b) and 20(b)(ii)(A) of NDPS Act was made out against the respondent and charge was framed which was put to him to which he denied and claimed trial. 11. The prosecution in order to prove the guilt of the respondent examined as many as 12 witnesses. 12. On closure of the prosecution evidence, the respondent was examined under Section 313 Cr.P.C. where he denied the case of the prosecution and claimed false implication at the instance of his sister Pinki residing in Punjab due to land dispute. 13. In defence, the respondent has only led documentary evidence in the shape of documents Ext. D1 to Ext. D8. 14. The learned Special Court after recording evidence and evaluating the same, acquitted the respondent, constraining the appellant to file the instant appeal. 15. It is vehemently argued by the learned Additional Advocate General that the findings recorded by the learned trial court are not only perverse but contrary to the provisions of law, therefore, deserve to be set aside. 16. On the other hand, Mr. N. S. Chandel, learned Senior Advocate, duly assisted by Mr. Vinod Kumar Gupta, learned Advocate, would vehemently argue that since the findings recorded by learned Special Court are based on the correct appreciation of the oral and documentary evidence on record and also based on correct appreciation of the law, therefore, warrant no interference. 17. We have given a thoughtful consideration to the submissions made at the Bar and have also gone through the record of the learned trial court. 18. 17. We have given a thoughtful consideration to the submissions made at the Bar and have also gone through the record of the learned trial court. 18. In order to establish the factum of recovery from the conscious possession of the respondent, PW6 Chaman Lal, PW7 Duni Chand, PW 10 HHC Ramesh Kumar and PW11 Rajinder Singh are the material witnesses. 19. PW6 Chaman Lal stated that on 29.07.2013 at about 2:00 p.m., he received telephonic call from the police to reach near Om furniture, Jahu alongwith Ward Panch and when he reached there the police officials were not present there. The police officials were already present in the courtyard of the house of the respondent. In the meantime Ward Panch PW7 also reached there. The police officials disclosed that a search of the residential premises of the respondent was required to be conducted . After some time they went inside the cattle shed and came out with the black coloured bag which on being opened in the courtyard was found containing a pack wrapped in newspaper and poly bag. On opening the same, it was found containing 2 sticks of black coloured susbtance and powder substance of brown colour which as per police was charas and bhukki. The said articles were packed in cloth parcel and taken into possession vide memo Ext. PW6/A which was signed by him and PW7. The respondent reached later on and was forced to sign the same. This witness was declared hostile and permitted to be cross-examined by the prosecution but he stuck to his above said version. During cross-examination by defence, PW6 stated that the respondent had been falsely implicated at the instance of his sister Pinki with whom he had dispute over property and such complaint had already been lodged by him alongwith other villagers with the Additional Superintendent of Police. 20. The other independent witness PW7 stated that on 29.07.2013, he was called by Pardhan Gram Panchayat to the house of the respondent and on reaching found him alongwith police officials already there. The police were searching the cattle shed of the respondent but nothing was recovered on first search. Then police again went inside the cattle shed and came out with the black coloured bag which on opening found to be containing two poly bag, which in turn were found containing bhukki and charas, respectively. The police were searching the cattle shed of the respondent but nothing was recovered on first search. Then police again went inside the cattle shed and came out with the black coloured bag which on opening found to be containing two poly bag, which in turn were found containing bhukki and charas, respectively. The same was weighed with conventional weighing scale and thereafter put into the bag and sealed with the clothes parcel and then taken into possession vide seizure memo Ext. PW6/A, which was signed by him and PW6. The respondent was not present at the spot and came later on. This witness too was declared hostile but nothing fruitful could be extracted in his cross-examination by the prosecution. During cross-examination by the defence, this witness stated that the respondent had been falsely implicated by his sister on account of a dispute over the property of their father. The local Panchayat and the Villagers met Senior Police Officials against said false implication. 21. Now adverting to the testimony of PW11 ASI Rajinder Singh, he stated that on receiving a secret information about the indulgence of the respondent in illegal trading of narcotics. He telephonically asked PW6 Chaman Lal and PW7 Duni Chand to come to the house of the respondent and when the police party reached the road near to the house of the respondent, PW6 and PW7 met them and formed a raiding party and thereafter proceeded to the house of the respondent. On reaching there, respondent was found present and was apprised of the search and before conducting the same, personal search was given by police party to the respondent and thereafter the search was conducted. During search of the house, no incriminating material was recovered, but on the search of cattle shed in presence of PW6 and PW7 as well as the respondent, a black coloured bag containing alleged contraband was recovered. 22. It would be noticed that there are material contradictions regarding the manner of search and recovery in the statements of the prosecution witnesses the bag then being opened in their presence and found containing alleged contraband but the recovery there of has not been shown in the manner the case has been presented by the prosecution. 22. It would be noticed that there are material contradictions regarding the manner of search and recovery in the statements of the prosecution witnesses the bag then being opened in their presence and found containing alleged contraband but the recovery there of has not been shown in the manner the case has been presented by the prosecution. The alleged recovery as claimed by the prosecution also appears to be quite doubtful on going through the contradictions in the testimonies of the police officials, which have been duly noticed by the learned Special Judge and we see no reason to differ with the view taken by the learned Special Judge. 23. However, even if these contradictions are ignored, it needs to be noticed that the recoveries, as per the case set out by prosecution, have been effected from the cattle shed, which is an open place accessible to one and all and thus, it cannot be held that the recovery was effected from the conscious possession of the respondent. 24. A learned Division Bench of this Court in State of H.P. vs. Ashan Rani & Ors, 2014 (3) HLR DB 1615 , was dealing with a case where the contraband was alleged to have been recovered from the kitchen of the accused but there was nothing on record to indicate the exclusive possession of the accused over the kitchen and there was no evidence on record showing that the other members of the family did not have access to the same. It was then that the Court held as under:- 22. The prosecution case, too, gets ridden with inveracity, 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. 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. Consequently it, is, construed that other members of the family of the accused, who, too had access to kitchen, wherefrom 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. 25. Once the cow shed was accessible to other members of the family of the respondent, it cannot be said that the contraband had been recovered from the exclusive possession of the respondent, who alone had exclusive knowledge qua it being placed there. 26. This assumes importance because it has been specifically stated by PW6 and PW7 that the respondent at the relevant time, when the cow shed was searched, the respondent was not there, and furthermore it has also come in the statements that the police officials were already present in the house of the respondent when they reached there. 27. The reasons as accorded by the learned Special Judge in acquitting the respondent do not suffer from any infirmity or perversity. Consequently, the findings of the learned Special Judge are well merited and do not warrant any interference, particularly, when the view taken by the learned Special Judge is possible and plausible one. 28. In view of the aforesaid discussion and for the reasons stated above, we do not find any merit in the instant appeal and the same is accordingly dismissed.