IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 154 of 1997. Decided on: 04.06.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Bir Singh. …Respondents. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. For respondent : Mr. Avinish Bhardwaj, Advocate vice Mr. Ajay Kumar, Advocate, for the respondent. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral): State has challenged the judgment of learned Sessions Judge, Shimla, rendered in Sessions Trial No. 22-S/7 of 1996, whereby the accused who was charged with and tried for an offence, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 2. The case of the prosecution, in a nut-shell, is that on 27.03.1996, Shri Madan Singh (Head Constable) conducted a raid in village Mundlah alongwith S/Shri Satpal Patwari, Prem Chand Kanungo, Ramesh Chand Constable, Shyam Singh and 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. Nand Ram. They visited the field of the accused situated in Khasra No. 922. The demarcation of the field of the accused was carried out by the revenue officials. It was found that 1080 poppy plants were growing in the field of the accused. The revenue officials prepared a tatima of the field of the accused. The Police also took into possession the said tatima alongwith copies of the relevant revenue record. Thereafter, the poppy plants were uprooted and the same were put in a gunny bag after retaining five poppy plants as sample which were separately put in a sealed parcel. A rukka was sent to the Police Station, Chopal, on the basis of which, F.I.R. was registered. A sample of poppy plants was sent to the Chemical Examiner, Kandaghat. As per the report of the Chemical Examiner, contents of the sample plants were that of poppy plants. The Police investigated the matter and put up the challan against the accused after completing all the codal formalities under Section 207 of the Criminal Procedure Code. The accused was examined under Section 313 of the Criminal Procedure Code. The case of the accused was that he was not in exclusive possession of the field, in question, and he had not cultivated the poppy plants. The learned trial Court acquitted the respondent (accused). Hence, this appeal by the state. 3. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent (accused). 4. Mr. Rajnish Bhardwaj, Advocate learned vice counsel for the respondent has supported the judgment of the learned trial Court. 5. We have heard the learned counsel for the parties and gone through the record carefully. 6. PW-4 Nand Ram and PW-5 Shyam Singh have not supported the case of the prosecution. These witnesses have turned hostile. PW-4 has deposed that accused was not in exclusive possession of the land from which the opium poppy plants were recovered. PW-5 has also deposed that accused was not in exclusive possession of the land in question and the accused and his sisters had been cultivating the land jointly. According to the revenue record, the accused was recorded in joint possession of the land, i.e., Khasra No. 922. 7. PW-10 Prem Chand has admitted that the accused was not present at that time when the demarcation was carried out. He also admitted that he had not called any other co-sharer of the land comprised in Khasra number 922 at the time of demarcation. He also did not call any other person from the adjoining village and has not recorded the statement of accused or any other person who were present there to the effect that the demarcation had been carried out correctly. In these circumstances, it cannot be held that the accused was in exclusive possession of the field from which the opium poppy plants were recovered. The accused was also not present on the spot when the recovery was effected. The prosecution has failed to prove that the opium poppy plants, which were recovered by the Police, were cultivated by the accused exclusively. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (R.B. Misra), Judge (Rajiv Sharma) Judge June 04, 2010. (bhupender)