IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 23 of 1997 Date of decision: 19.05.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Thakur Dutt .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 Yes. ________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Assistant Advocate General. For the respondent: Mr. T.R. Chandel, Advocate. ________________________________________________________________ V.K. Sharma, J (Oral) . The state is in appeal against the judgment of acquittal dated 16.03.1996 of the learned Additional Sessions Judge, Kullu, District Kullu, H.P., whereby the respondent herein, who shall hereinafter be referred to as the accused, was tried for the offence under Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) and was ultimately acquitted. 2. Shorn of details, the facts of the case are that on 10.04.1995 at about 1 P.M., Dy.S.P. R.S. Negi (PW-15) and S.I. Nihal Chand (PW-16) were present at village Shanshar on official duty. They were also accompanied by H.C. Surender Kumar, LHC Hari Singh and constable Devia Ram. In the meantime, the police party headed by PW-15 R.S. Negi, received secret information that the accused had stored huge 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. :-2-: quantity of charas in his newly constructed house near village Sihan and in case the house is raided immediately there is every likelihood of charas being recovered in huge quantity from the said house. The secret information being reliable and disclosing commission of an offence under Section 20 of the Act, it was taken down in writing, vide memo Ex. PW-12/B and sent to the Superintendent of Police, Kullu District, Kullu. Simultaneously, a rukka was also sent to the Police Station on the basis of which FIR Ex. PW-11/A was registered. 3. It shall be pertinent to notice at this juncture that though initially a case under Section 20 of the Act was registered, however, later on Section 25 of the Act was also added on the allegations that the premises belonging to the accused were being used for commission of an offence under Section 20 of the Act. 4. The further case of the prosecution is that immediately thereafter PW-16 S.I. Nihal Chand, accompanied by other police officials, proceeded to the newly constructed house belonging to the accused situate at village Ruar, near village Sihan. On reaching there, they found that none was present in the said house. It being so, the house was encircled and secured by the police party. However, neither the accused nor any member of his family turned up till 11.04.1995 at 4:00 p.m. Accordingly, the house was kept encircled and secured. 5. It was against the aforesaid backdrop that father of the accused Shri Alam Chand, Shri Dile Ram, Local Namberdar and Ram Chander, Patwari, were called by the police to the spot. On their arrival Dy.S.P. R.S. Negi directed S.I. Nihal Chand to conduct search of the house in the presence of aforesaid persons. Accordingly, the search followed in the presence of the independent witnesses, namely, Shri Dile Ram, Namberdar and Shri Ram Chander, Patwari, and other police :-3-: officials. During search, it was found that on the upper storey of the house, one room was found bolted from outside, but it was not locked and was being used as kitchen by the accused. On opening the room one tin box was found lying there on the left side of the room, which was locked. A wooden almirah, firmly affixed in the wall of the room, was also noticed, which was not locked. On opening the almirah five plastic containers of the capacity of 15 kilograms each were found kept therein. The plastic containers, as also the tin box, after breaking the lock, were opened. The same were found to contain charas in the shape of sticks and balls. The recovered contraband were taken out of the room. On weighing, it was found to be 85 kilograms, out of which a sample weighing 50 grams was separated for the purpose of analysis. The parcels containing the bulk and the sample were sealed with seal 'N'. The case property was taken into possession vide recovery memo Ex. PW-1/A. 6. On completion of the procedural formalities, such as depositing of the case property and the sample in the malkhana with MHC, Police Station, Kullu, the sample was sent for analysis to C.T.L. Kandaghat and report Ex. PW-14/A was obtained, which revealed that the sample contained contents of charas. On completion of investigation a charge-sheet for the above offences was laid against the accused, who was arrested and sent up to face trial. On being charged, he pleaded not guilty and claimed to be tried. The prosecution evidence followed. In order to bring home guilt against the accused, the prosecution examined as many as 17 witnesses. 7. On close of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (the Code). While submitting reply to the incriminating circumstances, :-4-: as appearing against him in the prosecution evidence, he denied that there is any village by name Shanshar. He further denied that he has any house at village Ruar. According to him, his wife and children were living with him in village Tung, however, he admitted that he was apprehended by the police and brought to Police Station, Kullu. He feigned ignorance as to why the prosecution witnesses including official witnesses deposed against him. In reply to the last question of his statement, the answer given by him is to the following effect: “I am innocent and working as Beldar in Parwati Hydel Investigation Project, Larji. I am living alongwith my wife and children in village Tung and tender the jamabandi for the year 1990-91 of Phati and Mauja Shanshar, Up-Tehsil Sainj, Distt. Kullu H.P. in order to establish that Kh. No. 534 is in village Majhina, and the copy of an abstract from the family register maintained in Gram Panchayat Shanshar. (These documents are Ex. DA and DB respectively).” However, except tendering in evidence the aforesaid documents Ex. DA and DB, he did not lead any evidence in defence. 8. On conclusion of the trial, the learned court below found that prosecution has not been able to establish its case against the accused beyond reasonable doubt and proceeded to acquit him, as already noticed. 9. We have heard the learned Additional Advocate General for the appellant-State and learned counsel for the respondent-accused and perused the record. 10. Whereas attack against the impugned judgment dated 16.03.1996 is directed on behalf of the appellant-State, mainly on the grounds setup in the appeal, the defence has supported the same. 11. The case of the prosecution is that the secret information :-5-: was received on 10.04.1995 at about 1 P.M. Soon thereafter the police party proceeded to the spot. However, none was found there in the house, alleged to be in possession of the accused at the relevant time. In such situation, the house was encircled and secured by the police all through that day and the intervening night, as also on the next day, i.e. 11.04.1995 upto 4 p.m., but none including the accused appeared there. It was in such circumstances that the local Namberdar Dile Ram (PW-2) and Patwari Shri Ram Chand (PW-1) were summoned and the search of the house was conducted, which as per prosecution led to the recovery of huge quantity of charas weighing 85 kilograms. 12. It is admitted case even of the prosecution that the accused was not present at the time of search and seizure of the recovered contraband from the house in question. There is also no dispute that the house belonged to Shri Alam Chand, father of the accused, however, it is alleged that though the house belonged to the father, the son, i.e. the accused, was residing therein. He was using one of the rooms on the upper story of the house as kitchen from where the contraband was recovered from containers kept in the almirah and in the tin box. The evidence led by the prosecution to establish that the accused was residing in the house under reference and recovered contraband was lying therein within the meaning of his conscious possession, is two fold. Firstly, there is an affidavit Ex. PW-7/A of Shri Alam Chand, father of the accused. As per which, he is owner of the land comprised in khasra No. 534, situate in Phati and Kothi Shanshar. It is further recited therein that on this land a house has been constructed, which is in possession of his son, accused Thakur Dutt, for the last six years. Affidavit Ex. PW-7/A dated 18.5.1995 was sworn before and attested by Shri Ashok Kumar Marwah (PW-7), Notary Public, Kullu, who has :-6-: categorically admitted during cross-examination that the deponent, Shri Alam Chand was brought to him by the police. It being so, when active participation of the police in execution and attestation of the affidavit Ex. PW-7/A is writ large on the face of record, the very veracity of the document becomes seriously doubtful. When this aspect of the matter is considered coupled with other evidence on record to be discussed hereinafter much reliance cannot be placed on affidavit Ex.PW7/A. Furthermore, though the occurrence related to 10/11/12.4.1995, affidavit Ex. PW-7/A was executed and sworn as late as 18.5.1995. 13. Secondly, divorce deed Ex. PW-16/D dated 5.12.1994 said to have been entered into between the accused and his wife, Smt. Mathura Devi, has been brought on record to show that the inter se relations between them were not cordial pursuant to which they snapped the matrimonial ties between them and thereafter the accused started living in the newly constructed house belonging to his father from where the contraband was allegedly recovered by the police, his wife alongwith children started living separately in the native village of the accused known as Tung. However, this document also on the face of it appears to be a maneuvered and an attempt on the part of the police to show that the house in question was in possession of the accused and thus the recovered contraband was also in his possession. This inference is deducible from the bare fact, as already noticed, that whereas the occurrence pertains to 10/11/12.4.1995, divorce deed Ex. PW-16/D, dated 5.12.1995, was allegedly executed thereafter after about eight months. If it was so, it was a happening subsequent to the search and seizure under reference and the alleged recovery of contraband pursuant to the same. Furthermore, out of the two marginal witnesses :-7-: to divorce deed Ex. PW-16/D, only one namely Shri Narpat Thakur was examined as PW-8, but he has not supported the prosecution case in this regard and as such was declared hostile on the request of the prosecution and was permitted to be cross-examined by the learned Public Prosecutor. However, even despite that nothing tangible could be extracted out of him during cross-examination to prove veracity of divorce deed Ex. PW-16/D. To the contrary, he is categorical in stating that the relations between the accused and his wife always remained cordial and no divorce ever took place between them. 14. Now, while coming to the owner-ship and possession of the house under reference from where the contraband was allegedly recovered, it would be seen that according to the prosecution this house was constructed on the land bearing khasra No. 534, measuring 0-2-19 bighas, depicted by copy of jamabandi Ex. PW-1/C for the year 1990-91 an alternate copy whereof has also been brought on record at the instance of the accused Ex. DA. A perusal of this piece of evidence would go to show that the land bearing khasra No. 534 is recorded in the joint owner-ship and possession of the father of the accused, Shri Alam Chand, to the extent of ½ and the remainder ½ in the names of one Kahan Chand and one Chande Ram in equal shares. Admittedly, the said Kahan Chand and Chande Ram were neither joined by the police during investigation nor it is shown that they were not having any connection with the house located in khasra No. 534. 15. There is also slight incongruity about the location of the house from where the contraband was allegedly recovered. Even as per prosecution case, the accused is resident of village Tung, however, it was alleged that the contraband was stored by him in the newly constructed house of his father located near village Sihan, which was in his :-8-: possession. In case, jamabandi Ex. PW-1/C is considered against this backdrop, it would be apparent that it pertains to Fathi and Mauja Shanshar. Thus, even the exact location of the house from where the contraband was allegedly recovered does not stand exactly pin pointed. 16. Admittedly, the accused was not present during the search and seizure and the consequent recovery of huge quantity of charas, weighing 85 kilograms, from the house in question. In such situation and taking into consideration other evidence, as discussed above, possession, actual or constructive, in relation to the said house as also the contraband allegedly recovered from the same cannot be ascribed to the accused. In this regard, I am fortified by the law laid down by the Hon'ble Supreme court in Ismailkhan Aiyubkhan Pathan vs. State of Gujarat, (2000) 10 SCC 257, paras 2 to 5 whereof, being relevant, are reproduced below for the sake of convenience and ready reference: “2. The summary of the prosecution case is the following: PW 7 Inspector of Police of Crime Branch in the Vigilance Squad got some sleuth information on 6-5-1991that illicit trafficking was going on in the room on the Ist floor of a building which was in the possession of one Nasir. He also got information that the said Nasir had kept a stock of “charas” and was dealing with the same through his servants. On the strength of the aforesaid information PW 7 along with other police personnel reached the said building for the purpose of catching the culprits. He called out the name of Nasir but none came out holding that name. However, when he entered the room he found all the 6 accused persons therein. He found a gunny bag being kept in the corner of the room. It was opened and the substance therein was tested with the help of Shri B.N. Dave, who came by that way (that person is said to be an expert attached to the Forensic Science laboratory). Mr. Dave conducted an “on-the-spot scientific test” and proclaimed that the substance was “charas”. 3. It is unnecessary for us to go into the other evidence because we will assume that whatever PW 7 has said is correct and the rest of the evidence for the prosecution had only supported the version of PW 7. But the question is how the appellants can be fastened with the liability for possession of the contraband article wrapped in the :-9-: gunny bag which was kept in the room. 4. There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question. 5. Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance “charas”. ” 17. The above discussion brings us to hold that the impugned judgment dated 16.03.1996 does not call for any interference at the hands of this court. 18. In the result, the appeal fails and is accordingly dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 19th May, 2010 (virender)