IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.161 of 2001. Date of decision: 26.2.2011 State of H.P ..Appellant Versus Savitri Devi ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Additional Advocate General with Sh.Rajesh Mandhotra, Dy.A.G. For the respondent: Mr.T.S.Chauhan, Advocate. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement dated 15.11.2000 delivered by the learned Sessions Judge, Bilaspur in Sessions Trial No.5/2000 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic 2 Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). 2. The prosecution story, in brief, is that on 11.3.2000, PW/9 Rajesh Kumar who at the relevant time was posted as SHO, Police Station, Ghumarwin was on patrolling duty at village Kothi alongwith other police officials. He received secret information to the effect that the accused Savitri Devi deals in charas. PW/9 recorded the information and sent the same to the S.D.P.O, Ghumarwin. Thereafter, he constituted a raiding party consisting of himself, Mohinder Singh, Head Constable, Surinder Singh, Head Constable, Bhuri Singh, LHC, Daulat Ram, Constable and Smt.Geeta Devi, Lady Constable and went to the house of the accused. Two independent witnesses namely Bhagat Ram, PW/1 and Prem Singh were associated with the raiding party. He sought the consent of the accused to search her house and she had no objection to the same. Search of the room of the accused was conducted in her presence by the police officials. During the search, one blue coloured cloth bag was found kept adjoining to the rafter of the roof on top 3 of the wall. On search of this bag, a polythene bag was recovered and inside this polythene bag, there was charas in the form of sticks. The said charas was weighed and was found to weigh 1 kg. and 690 grams. Two samples of 25 grams each were drawn out of the bulk charas and thereafter, the two samples and the remaining bulk charas were sealed in three separate parcels and sealed with seal impression ‘S’. The Investigating Officer completed other codal formalities at the spot. Thereafter, Rukka, Ext.PH was prepared and sent to Police Station, Ghumarwin on the basis of which FIR was registered. The accused was apprised of the grounds of the arrest. 4. Thereafter, one sample of charas was sent to the Chemical Examiner, C.T.L, Kandaghat for examination. Report Ext.PK/1 was received wherein it was found that the sample contained charas and the resin content was found to be 34.02 per cent. On this basis, challan was filed against the accused and the accused was charged with having committed an offence punishable under Section 20 of the Act. The accused 4 pleaded not guilty and claimed trial. After trial, the accused was acquitted. Hence the present appeal by the State. 5. The learned Trial Court after trial came to the conclusion that the prosecution had proved the fact that the charas was recovered in the manner alleged by the prosecution. The learned Trial Court however, acquitted the accused mainly on the ground that the prosecution had failed to prove that the recovery was made from the exclusive possession of the accused. 8. Though PW/9 in his examination-in-chief has stated that the room wherein the search was conducted was in the exclusive possession of the accused but in cross-examination, he admitted that the accused resides in the said room alongwith her husband and her sons. This fact has also been admitted by the other witnesses. One of the sons of the accused is a taxi driver and the learned Trial Court has given the benefit of doubt to the accused since it cannot be said with certainty as to who was the owner of the contraband substance and who was the person out of the four who had hidden the contraband 5 substance above the wall near the rafter. It could be the husband of the accused; one of the sons of the accused or the accused herself but it was for the prosecution to strictly prove as to who was the person from whose exclusive possession, the recovery was made. The mere fact that the accused being the lady of the house was present at that time when the police conducted the raid would not by itself ipso facto lead to the conclusion that it was she who had hidden the charas or it was she who was in the exclusive possession of the same. 12. In view of the above discussion, the learned Trial Court was fully justified in acquitting the accused. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 26th February, 2011 (Sanjay Karol) (m) Judge