IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.243 of 2001. Decided on: March 5, 2011. ____________________________________________________________ State of H.P. ……..Appellant. Versus Kuldeep Singh. ……..Respondent. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. R.K.Sharma, Sr. Addl.Advocate General with Mr. Rajinder Dogra, Addl.Advocate General. For the respondent : Mr. Mohan Singh, Advocate, vice Mr. B.N. Misra, Advocate. _________________________________________________________ SURINDER SINGH,J (oral) : The respondent was charge-sheeted, tried and acquitted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, allegedly for keeping in possession 1 Kgs. of Charas in one of the room of his residential house. 2. Heard and gone through the evidence on record. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. In short, the prosecution story can be stated thus. On Ist March, 2000, PW10 SI/SHO Ambiya Ram of Police Station Jawali had received a telephonic information that the respondent was dealing in illicit distillation of liquor and if his premises are raided, huge quantity of illicit liquor can be recovered. This information was jotted down in the Daily Diary of the Police Station and he proceeded towards the house of the respondent. On the way associated two independent witnesses PW1 Paras Ram and PW2 Chunkoo Ram. 4. The raiding party reached the house of the respondent and conducted the search, but they could not lay hands to illicit liquor, however during the search of the house, a polythene bag was recovered from the almirah of room No.5 of the house, which contained 1 Kilogram of Charas. It was taken into possession vide memo Ex.PA in the presence of the witnesses. 5. Two samples of 10 grams each were separated and sealed in empty match boxes with seal impression producing the impression of English letter ‘K’. The remaining bulk was also sealed with the same seal in a separate envelope. Sample of seal was also taken on a - 3 - piece of cloth. The case property was taken into possession vide memo Ex.PA in the presence of the witnesses aforesaid. 6. A Ruqa Ex.PE was sent to the Police Station concerned for the registration of the case, which culminated into FIR Ex.PD. The NCB forms in triplicate one of which is Ex.PL were filled in by SI Ambiya Ram. 7. An information Ex.PF was also sent to the SDPO Jawali. PW11 Dy.S.P. Mohinder Singh reached the spot and further investigation in the matter was handed over to him. After verifying the investigation, the case property was resealed with seal impression “M”. A Special Report was sent to the S.S.P., Kangra, copy of which is Ex.PC. Police also prepared site plan Ex.PK of the place of alleged recovery. The case property was deposited with PW7 MHC Rajinder Singh, in the Malkhana on the same day at 4 P.M. and its entry was made in the Malkhana register (not produced). 8. On 6th March, 2000, both sample parcels were handed over to PW5 Constable Rajeev Kumar, who taken it to the CTL Kandaghat for its analysis and obtained the receipt and handed over back to the - 4 - MHC aforesaid. But the copy of R.C. was not produced and proved during the trial of the case. 9. On the analysis of the samples, it tested positive for Charas. The Chemical Examiner found resin 39.73 per cent weight-in-weight in one sample and 39.17 per cent weight-in-weight in another sample with cystolithic hair and opined that both the sample parcels contained the contents of the Charas. 10. After completing the investigation, the case was presented in the court for the trial of the respondents. At the end of trial, respondent was acquitted, on the ground that he was not proved to be in exclusive and conscious possession of contraband and the prosecution has failed to comply with the provisions of Section 50 of the Act. 11. At the very outset, I would like to say that the provisions of Section 50 of the Act in the present facts, are absolutely not attracted, thus, the findings to the contrary are wrong and perverse. However, we have examined the other point qua actual and conscious possession of the contraband from the respondent and find that the trial Court rightly acquitted the accused on this point. - 5 - 12. PW1 Paras Ram and PW2 Chunkoo Ram both have not supported the case of the prosecution, as such they were declared hostile, however, an important fact appeared in their statements that the house in question from where the alleged narcotic was recovered, besides the accused, his father and three other adult brothers, alongwith their family members about 20 in numbers were living jointly in the house in question. 13. PW3 Constable Shashi Pal and PW9 LHC Pritam were also the members of the raiding party. They also testified that there were 7/8 rooms in the house of the accused, the opening whereof is on two sides. PW3 also admitted that the parents of the accused and married elder brothers are also residing in the same house. PW9 aforesaid stated that he kept on standing on the gate of the house and there were three houses encircled having seven rooms in all, but could not say as to how many persons were living therein, which shows that in those three houses, many other persons then respondent were living. 14. On the other hand, PW10 SI/SHO Ambiya Ram denied the suggestion that the house in question is in - 6 - the joint possession of the other family members of the accused. Site plan Ex.PK prepared by him shows that there was a gate in front of the house consisting of 5 rooms and the alleged recovery is stated to have been made from Room No.5 by the witnesses, whereas it has been indicated in the map from Room No.4. Further he also admitted that he did not make any enquiry as to who was in the exclusive possession of the house or the room from where the alleged recovery was made. 15. Thus, on culling the evidence, it is apparent that not only the accused, but other adult members of the family have been residing in the house and no attempt was made by the Investigating Officer to collect any evidence with respect to exclusive possession of the room from where the alleged recovery was made from any independent source or the Pradhan or Secretary of the Panchayat or by observing the articles lying inside and connecting it with respondent. Therefore, in the circumstances aforesaid, the conscious and actual possession of the contraband from the accused is blatantly lacking in the present case. - 7 - 16. Further we also find from the statement of PW10 SI Ambiya Ram that the case property was deposited with PW7 MHC Rajinder Singh, but neither he nor the said MHC stated that the sample of seals used at the time of sampling or resealing were deposited with the case property in the Malkhana. Further, a reference has also been given by SI Ambiya Ram that one of sample parcel was sent for analysis, but PW7 MHC Rajinder Singh states having sent two sample for analysis through PW5 Contable Rajeev Kumar vide RC No.20/2000, but R.C. was not proved as aforesaid. Even with respect to sending of samples, there are contradictory statements on record. Investigating Officer stated only one sample was sent for analysis and another set of witnesses i.e. MHC and C. Rajeev stated that two samples were sent. Further, the facsimile of the seal on the NCB forms are smudged and not clear and there is no evidence regarding sending of sample of seals used to the Laboratory with the sample parcels, then it is not understood as to which of the sample of seals were tallied by the Chemical Analyst with the samples received for - 8 - analysis. In other words, the prosecution could not link the report Ex.PL/1 with the alleged recovery. 17. For the foregoing reasons, in our opinion, the prosecution could not prove its case in accordance with law, as such the findings of acquittal of the respondent calls for no interference. The appeal lacks merit, accordingly dismissed. 18. The respondent is hereby discharged of his bail bonds entered upon by him at any time during the proceedings of the case. 19. The matter stands disposed of. Send down the record. ( R.B. Misra ) Judge. March 5, 2011. (Surinder Singh), (Pds) Judge.