Cr. AEE. No. 365(2001 SB: Hon’ble Shri Justice R.L. Jhanwar APPELLANT Kailash Soni Versus RESPONDENT State of Chhattisgarh JUDGMENT Post for pronouncement of Judizrnent D .12.2009 SdL R.L. Jhanwar Judgg HIGH COURT OF CHHATTISGARH AT BILASPUR @ @. HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON’BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeal No.365l2001 Criminal appeal U/s 374 Criminal Procedure Code Appearance: Smt. Meera Jaiswal, counsel for the appellant. Shri Pfadeep Singh, P.L. for the State. J U D G M E N T (Delivered on g .122009) This appeal is directed against the judgment of conviction and order of sentence dated 10.04.2001 delivered in 19/2000 by Special Judge, Durg whereby the appellant has been convicted under Section 20 _(b) (i) of the Narcotic Drugs and Psychotropic Substances Act (for short ‘the Act‘) and sentenced to rigorous imprisonment for 6 years and a fine of Rs.5000/— and in default to undergo rigorous imprisonment for two months, 2) Brief facts of the prosecution, in nutshell, are that on 30.09.2001 after receiving information that that the appellant has kept ganja in adjacent devastated room and one Shyamu Sahu purchased ganja from the appellant, S.P.Tiwari, Station House Officer, Police Station Dhamdha, accompanied by staff and witnesses reached the spot and after completing necessary formalities, search was affected in that devastated room and upon search he found two jute bags in which ganja was kept and that ganja was seized, Ganja was weighed and found it to be in 17 kilograms. Sample of 50 grams of ganja each was taken out from each / APPELLANT . Kailash Soni, S/o late Shri Radhey (Accused) Lal Soni, aged about 22 yrs. r/o Brahmanpara, Brahmanpara Dhamdha, P.S. — Dhamdha, Tah. Dhamdha, Distt. Durg (Chhattisgarh) Versus RESPONDENT State of Chhattisgarh, through (Prosecution) police Station, Dhamdha. jute bag and after thatjute bags were sealed. Seized anja and samples were marked. Thereafter, the appellant was arrested. 3) After completion of investigation, charge sheet under Section 20 (b) (i) of the Act was filed against the appellant and the contents of the same were read over and explained to the appellant. who abjured the guilt, pleaded innocence and led evidence of Derharam, Lavkush Kumar Soni, Nandkumar Yadav and Gajrabai in defence. 4) The learned Special Judge has, after evaluating the evidence led by the prosecution and after hearing the counsel for respective parties, found the appellant guilty under Section 20 (b)(i) of the Act and convicted and sentenced the appellant accordingly, 5. Smt. Meera Jaiswal, learned counsel for the appellant, argues that conviction of the appellant under Section 20(b)(i) of the Act and sentence thereunder are bad in law and not proper. Learned counsel for the appellant argued that exclusive possession of that devastated room in which ganja was kept was not proved by the prosecution and no documentary evidence to thateffect was produced. There is material contradictions in the statements of all witnesses as to whether the door of that devastated room was closed or locked or it must have been locked. According to learned counsel for the appellant, that devastated room was abandoned and was about to raze to ground and in that situation somebody might have visited and kept ganja and that the testimony of the evidence led by the prosecution shows that anybody can enter that room easily and can keep any article, and therefore, the exclusive'possession of that devastated room is not proved by the prosecution, therefore, the accused is entitled for acquittal. Reliance in the matter of Mohd. Alam Khan vs. Narcotics Control Bureau and another, 1996 Cri.L.J. 2001 was placed by the learned counsel for the appellant in support her arguments. 6. On the other hand, Shri Pradeep Singh, lea‘rned Panel Lawyer, ' argues in support ofthe impugned judgment. g 7. i have heard learned counsel for the parties and have perused the record. The learned Special Judge has convicted the appellant on the basis of evidence led by the prosecution. The learned Special Judge in its judgment arrived at a finding that the appellant himself opened the door of that devastated room where ganja was kept. 8. ln this case, the only question which remains to be considered is whether the devastated room was in actual and physical possession of the appellant or not. After perusal of the record, it is evident that no documentary evidence was led by the prosecution as to whether the devastated room from which ganja was seized was in exclusive possession of the appellant. It is evident from the testimony of Kotwar Derharam P.W.1 that room was in possession of the appellant but in cross—examination, this witness stated that the room from which the ganja was seized was in possession of uncle of the accused namely Pawan. He again stated in paragraph 4 of his testimony that the exclusive possession of the devastated room was of Pawan. Daulat Ahir P.W.2 and S.K.Riharno P.W.3 were also not aWare as to whether the devastated room was in possession of the appellant. P.W.3 S.K.Riharno in his cross— examination further stated that anybody may visit that devastated room. Investigating Officer Satya Prakash Tiwari P.W.4 stated in his testimony that he had not asked from Nagarpalika about the ownership of that devastated room from where ganja was seized. He stated that he was also not aware as to who was in actual possession of that room. He further stated that he had not enquired from Patwari about the possession of that room. It also emerged from his testimony that he had not seized the lock and key of that room. Thus, the prosecution has failed to prove that the appellant was owner and was in actual possession of that devastated room and has also not proved that the ganja was in conscious possession of the appellant. 9. Having thus considered the above evidence led by the prosecution, I hold that prosecution has utterly failed to prove the ownership of that devastated room. The learned Special Judge erred in believing that the room was belonging to the appellant and also erred to hold the appellant @ guilty under Section 20(b)(i) of the Act. Therefore, the conviction of the appellant under Section 20(b)(i) of the Act and the sentence awarded thereunder are liable to be set aside. In the result, the appeal is allowed. The conviction of the appellant under Section 20(b)(i) of the Act and the sentence awarded thereunder are set aside. Fine, if paid, be refunded to the appellant forthwith. 10. Sd/— R.L. Jhanwar Judge