IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 80 of 1997 Date of decision: 28.06.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Maun Ram .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. J.S. Rana, Assistant Advocate General. For the respondent: Mr. Sanjeev Mankotia, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 17.10.1996, passed by the learned Sessions Judge, Shimla, District Shimla, in Sessions Trial No. 21-S/7 of 1996, acquitting the alleged accused under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'). 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. According to the prosecution, on 27.03.1996, Shri Baldev Singh, SHO, conducted a raid in village Mundlah alongwith Head Constable Madan Lal, Constable 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Kamla Nand, Shri Prem Chand Kanungo and Shri Satpal Patwari and visited the field of the accused, comprised in khasra Nos. 817 and 904. Demarcation of the field was carried by the revenue officials in presence of accused Maun Ram and after demarcation it was found that there were 620 poppy plants grown in the field of accused Maun Ram. Tatima of the said field was prepared by the revenue officials and the said tatima was taken into possession by the police. Thereafter, the poppy plants were uprooted and were put in a gunny bag. Sample plants were taken and put in a sealed parcel. Rukka was sent to the Police Station, Chopal, on the basis of which, F.I.R. was registered. Sample parcel was sent to the Chemical Examiner, Kandaghat. As per the report of the Chemical Examiner, the contents of the sample plants were that of poppy plant. Accordingly, case under Section 18 of the NDPS Act was registered against the accused- respondent. 3. Prosecution in order to prove its case examined as many as nine witnesses. Out of these witnesses S/Shri Baldev Singh, S.H.O., Madan Singh, H.C., Satpal Patwari, Prem Chand Kanungo, Kamla Nand Constable and Sita Ram are the eye-witnesses, while the remaining are formal witnesses. Out of these eye witnesses, there is only one independent witness, i.e. Shri Sita Ram (PW-2). Apart from this, the prosecution has placed on record copies of revenue record, i.e. tatima, jamabandi and khasra girdawri of the land in question. Insofar as the statements of the eye witnesses, except Shri Sita Ram, is concerned, they have supported the prosecution case to the effect that 620 poppy plants were grown in the field of the accused and the same had been taken in possession by the police on the spot and ...3... thereafter, after retaining sample of five plants, the remaining 615 plants were put in a gunny bag which was sealed. Further the report of the Chemical Examiner has also been placed on record which would go to show that the contents of the plants which were sent for examination were that of poppy plants. 4. On analysis of the prosecution witnesses, we find that the police has not associated sufficient number of independent witnesses and only one independent witness, namely, Shri Sita Ram (PW-2), was associated by the police. However, PW-2 Sita Ram has not supported the prosecution case. He has stated that he does not know who had been cultivating the land, in question, from where the opium poppy plants were recovered. PW-2 has also stated that he does not know if the accused and his brother have been jointly cultivating the land, in question. Despite the said version of Shri Sita Ram (PW-2), the prosecution has failed to cross-examine him. 5. In view of the testimony of PW-2, it could not be ascertained as to whether the accused alone was in exclusive cultivatory possession of the land, from where the opium poppy plants were recovered. No doubt, the prosecution has placed on the record copies of jamabandi and khasra girdwari in respect of the land in question, but, the accused was recorded in joint possession of the field, though on the basis of above mentioned documentary evidence, it could not be inferred that the accused was in exclusive cultivatory possession of the field, from where opium poppy plants were recovered. Even the revenue officials emphatically and categorically have also not stated that the accused was in exclusive possession of the field from where the opium poppy plants were ...4... recovered. In order to bring home the guilt against the accused, necessarily the prosecution is required to prove that the opium poppy plants which were recovered by the police were cultivated by the accused and they are in exclusive possession of the accused alone. 6. In similar circumstances, the same combined land was also raided and one Bir Singh, accused-respondent, was also allegedly held guilt under Section 18 of the NDPS Act and he was tried by the learned Sessions Judge, Shimla, in Sessions Trial No. 22- S/7 of 1996 and was given benefit of doubt vide judgment dated 17.10.1996. In Criminal Appeal No. 154 of 1997, titled State of Himachal Pradesh vs. Bir Singh, preferred by the State Government, this Court while affirming the decision of the learned Sessions Judge has also acquitted the accused-respondent. 7. On analysis of the prosecution witness and material on record and having considered the apparent contradictions and improbabilities, we are of the considered view that the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt against the accused-respondent. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 28th June, 2010 (virender)