1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 63 of 1997 Decided on July 27, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Padam Singh …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. N.D. Sharma, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 17.10.1996 passed by the Learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 23-S/7 of 1996, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'), acquitting the alleged accused/respondent. 2. The prosecution story, in nutshell, is that on 27.3.1996, Madan Singh, Head Constable, conducted a raid in village Mundiah along with Constable Kamla Nand, Prem Chand Kanungo and Satpal Patwari and visited the field of the accused comprised in Khasra No. 919. The demarcation of the said land allegedly was made and after that it was found that 615 poppy plants were grown in the said field by accused Padam 2 Singh. The revenue officials had also prepared the tatima of the said field. The police took the possession of said tatima along with copies of the relevant revenue record. Thereafter, the poppy plants were uprooted and the same were put in gunny bag after retaining five poppy plants, as sample, which were separately put in a sealed parcel. Rukka was prepared and on that basis FIR was registered. A sample of poppy plants was sent to the chemical examiner, Kandaghat, and on receiving the chemical report, it was found that the contents of the sample plants were that of poppy plants. Accordingly, the respondent- accused was charged for the offence under Section 18 of the 'NDPS Act' and the case was committed for Sessions Trial. 3. In order to prove its case the prosecution has examined as many as 13 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. The prosecution witnesses Shyam Singh (PW.6) and Nand Ram (PW.5) have turned hostile and have not supported the prosecution case. The prosecution witnesses have only indicated that opium poppy plants were grown in the field of the accused, which were taken into possession by the police, after retaining sample of five poppy plants, whereas, remaining 610 poppy plants were put in a gunny bag. According to the prosecution, accused-respondent has grown up 615 poppy plants without having any licence, despite the fact that the revenue record shows that the respondent-accused is in joint possession of the land on which the poppy plants were found to 3 have been grown. However, as per prosecution, the respondent- accused was in exclusive possession of the land on which the poppy plants were grown up. Despite the fact that PW.5 and PW.6 have turned hostile, the statements of the official witnesses cannot be disbelieved even in absence of the corroboration by the independent witnesses. 5. On analysis of the prosecution witnesses and material on record, the prosecution is not able to prove that the field, where the poppy plants were grown, was in exclusive and conscious possession of the respondent-accused, and the respondent-accused has actually cultivated the opium poppy plants in the aforesaid field, from where 615 poppy plants were uprooted and taken into possession. Both the independent witnesses were examined by the prosecution, however, they did not prove that the opium poppy plants were cultivated by the respondent-accused. No doubt, the prosecution has placed on record copies of jamabandi and Khasra Girdawri in respect of the land in question, however, the accused is recorded in joint possession of the said land, but on the basis of documentary evidence, it cannot be held that the accused was in exclusive possession of the field/land on which the opium poppy plants were recovered. Even the revenue officials did not state that the accused was in exclusive possession of the field from which the opium poppy plants were recovered. In absence of corroborative statements of the prosecution witnesses, it can only be presumed that the police had recovered 615 poppy plants from the land in question, but it cannot be held that the 4 opium poppy plants in question were cultivated by the accused. 6. After going through the prosecution witnesses and material on record, we find that prosecution has failed to prove its case and to bring home the guilt to the accused and the learned Trial Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 7. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge July 27, 2010 (V.K. Sharma) (Purohit) Judge