Himachal Pradesh High Court
State Of Himachal Pradesh vs Karnail Singh Alias Kaila on 8 September, 2016
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 71 of 2013
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Date of decision: September 8, 2016.
State of Himachal Pradesh ......Appellant.
Versus
Karnail Singh alias Kaila ......Respondent.
of
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1Yes.
For the appellant : Mr. D.S. Nainta and Mr. Virender
Verma, Addl. AGs.
For the respondents : Mr. N. K. Thakur, Sr. Advocate with
Ms. Jamuna Kumari, Advocate.
Dharam Chand Chaudhary, J. (Oral)
State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Special Judge, Fast Track Court, Una had erroneously acquitted the respondent, hereinafter referred to as 'the accused' of the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as 'the NDPS Act' in short vide 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:12:33 :::HCHP 2impugned judgment dated 13.9.2012 passed in Sessions trial No. 04-VII-2011.
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2. It is seen that FIR No. 274/2010 dated 13.9.2010 Ext.PW1/B came to be registered against the accused in Police Station, Haroli, District Una under Section 15 of the NDPS Act with the allegations that on 13.9.2010 when a police party of headed by PW22 HC Sanjay Kumar reached at his newly constructed house in village Nangal Khurd, Tehsil Haroli District rt Una at about 4:15 A.M. recovered two gunny bags whereas three plastic bags containing poppy husk and poppy straw (doda). In first gunny bag poppy husk weighing 45 KG and second plastic bag poppy husk weighing 25 kg, in third plastic bag poppy husk weighing 25 Kg, in fourth plastic bag poppy husk weighing 23kg and in fifth gunny bag poppy straw (doda) weighing 18 Kg was allegedly recovered from the exclusive and conscious possession of the accused.
3. The police party headed by PW22 HC Sanjay Kumar, HC Ramesh Chand, HHC Gurvir Singh PW2 and constable Ram Gopal PW1 left police station on patrol duty vide rapat Ext.PW7/A entered in rapat rojnamcha by PW7 LC Sudha Rani. In the early morning i.e. 13.9.2010 around 4:15 A.M. PW22 has received a secret information that the accused is dealing in the business of poppy husk and poppy straw by bringing the same from out side the State and that he has stacked poppy husk and ::: Downloaded on - 15/04/2017 21:12:33 :::HCHP 3 poppy straw in his house at village Nangal Khurd. On the receipt of information, PW22 has prepared the Rukka Ext.PW1/A and it .
was sent to Police Station, Haroli through PW1 C. Ram Gopal around 4:25 A.M. On the basis of this document FIR Ext.PW1/B came to be registered in the police station. PW22 has also taken down in writing the secret information so received and reason of of his belief Ext.PW16/A and it was sent to the Superintendent of Police Una through PW2 HC Gurbir Singh at 4:35 A.M. Around rt 4:40 A.M. he sought for additional police force from police Station, Haroli over telephone. On the basis thereof rapat Ext.PW12/A was entered in the rapat rojnamcha whereby HC Harish Kumar, HC Balbir Singh, HC Santosh Kumar, HHG/PC Vijay Kumar were deputed to the spot in Government vehicle driven by Constable-driver Vikas Kumar. They joined PW22 at link road leading to village Nangal Khurd. PW22 had also apprised them about the secret information he received and the purpose of laying raid. The Pradhan of the Gram Panchayat Smt. Krishna Devi, one Jagiri Ram PW3, Up Pradhan of the gram Panchayat and PW4 Badev Raj ward panch, ward panch Ram Krishan and Shadi Lal were also associated in the raiding party. They were also apprised of the purpose of raiding the house of the accused.
4. The police party when reached in the house of the accused at 7:10 A.M. he came out at his own. He was apprised about the propose to raid his house by PW22 in the presence of ::: Downloaded on - 15/04/2017 21:12:33 :::HCHP 4 witnesses. Before entering inside the house each and every one gave their personal search to the accused. However, nothing .
incriminating recovered from them. It is thereafter the search of the house was conducted and five bags i.e. two jute bags and three plastic bags were recovered from the middle of a room of the house. The same were found containing poppy husk and of poppy straw. HC Balbir Singh was deputed to bring weighing scale. The bags containing poppy husk and poppy straw were rt brought out to lobby of the house. PW5 Prakash Chand brought weighing equipments to the spot. The bags containing poppy husk and poppy straw were weighed turn by turn and found containing poppy husk and poppy straw as already pointed out at the outset. The I.O. thereafter has drawn samples mark PA-1 to PE-2 and sealed in parcel with seal 'J'. All the five bags were also sealed with the same seal. Columns 1 to 8 of NCB-I form Ext.PW8/A were filled up on the spot and facsimile of seal 'J' were also obtained thereon. The sample of seal Ext.PW3/B was also drawn separately and the seal after its use was handed over to Jagiri Lal PW3. The bags and sample parcels duly sealed were taken in possession vide seizure memo Ext.PW3/A in the presence of PW Jagiri Lal and Baldev Raj PW4. A copy thereof was supplied to the accused and his signature obtained thereon.
Site plan Ext.PW22/A was prepared by the I.O. The I.O. had also got clicked the photographs Ext.PX-1 and Ext.PX-2 from Rakesh ::: Downloaded on - 15/04/2017 21:12:33 :::HCHP 5 Kumar PW6. This witness has also clicked the photographs Ext.PW6/A and Ext.PW6/B inside the room. In Ext.PW6/B and .
Ext.PX-1 and Ext.PX-2 the accused can also be seen standing.
The statements of the witnesses including that of Prakash Chand, Jagiri Ram and Baldev Raj Ext.PW22/C, Ext.PW22/D and Ext.PW22/E respectively were recorded by the I.O. PW22.
of
5. The accused was arrested and the ground of arrest disclosed to him vide memo Ext.PW22/B. In order to prepare the rt inventory application Ext.PW21/A was filed in the Court of learned Judicial Magistrate Ist class. Court No. II, Una and the inventory peppered on the basis thereof. The Magistrate after preparing the inventory handed over the sealed bags vide order Ext.PW21/D to the police. PW16 ASI Surjeet Singh, Reader to Superintendent of Police Una has proved the report under Section 42(2) of the Act Ext.PW16/A and the special report Ext.
PW16/B. PW10 Subhash Chand Kanungo had conducted the demarcation of the land bearing Khasra No. 448 over which the house of the accused from where recovery made vide demarcation report Ext.PW10/A. Rapat Ext.PW12/A, Ext.PW12/D, Ext.PW12/E and Ext.PW12/F were also entered in the rapat rojnamcha qua the investigation having taken place in this case.
The case property was produced before ASI Ashok Kumar PW8 who after resealing the same with seal 'M' had deposited in the malkhanna. The case property was sent to Forensic Science ::: Downloaded on - 15/04/2017 21:12:33 :::HCHP 6 Laboratory, Junga through Ashok Kumar. The report Ext.PW22/L was received from the Laboratory.
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6. On the completion of investigation, the police has prepared the challan and filed in the Court. On hearing learned Public Prosecutor and also learned defence Counsel as well as going through the police report, learned Special Judge has prima-
of facie found a case under Section 15 of the NDPS Act made out against the accused. Charge against him was framed rt accordingly. The accused, however, pleaded not guilty to the charge and claimed trial.
7. In order to sustain the charge against the accused the prosecution has examined 22 witnesses in all. The material prosecution witnesses are PW3 Jagiri Ram, PW4 Baldev Raj and PW5 Prakash Chand. PWs 3 and 4 have not supported the prosecution case and as such were declared hostile. PW5 Prakash Chand no doubt has deposed that scale and weights were brought by him to the spot however not supported the rest of the prosecution case qua the recovered contraband weighed in his presence. He was also declared hostile. PW1 Ram Gopal is formal as he had carried Rukka Ext.PW1/A to the police station.
PW5 Rakesh Kumar is photographer who has proved the photographs Ext.PX-1 and Ext.PX-2. PW7 LC Sudha Rani has proved the rapat Ext.PW7/A. PW10 Subhash Chand is Kaunungo and PW11 Joginder Kumar is Patwari, hence formal because they ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 7 had given the demarcation report of the land bearing Khasra No. 448 vide Ext.PW10/A. The remaining prosecution witnesses PW8 .
ASI Ashok Kumar, PW9 HC Ramesh Chand, PW12 C. Balwinder, PW13 MHC Ashwani Kumar, PW14 HC Sukhpal, PW15 the then SHO S.S. Pathania, PW16 ASI Surjeet Singh, PW17 HC Harish Chander, PW18 HC Balbir Singh, PW19 C. Ashok Kumar, PW20 HC of Vipan Kumar, PW21 Shri Yajuvinder Singh, the then Judicial Magistrate Ist Class, Court No. II, Una are also formal. The I.O. is rt PW22 HC Sanjay Kumar.
8. The accused was also examined under Section 313 of the Code of Criminal procedure and he has examined Dr. Kapil Sharma, Assistant Director and Assistant Chemical Examiner, NDPS Division, State Forensic Science Laboratory, Junga as DW1 in his defence.
9. Learned Special Judge on appreciation of oral as well as documentary evidence has concluded that no tangible evidence showing the recovery of the contraband i.e. poppy husk and poppy straw from the exclusive and conscious possession of the accused is not available on record. The prosecution was not found to have proved its case against the accused beyond all reasonable doubt. He as such was acquitted of the charge.
10. The impugned judgment has been challenged in this appeal on several grounds.
::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 811. Learned Additional Advocate General has vehemently argued that the testimony of witnesses comprising .
independent as well as official fully establish the prosecution case that the poppy husk and poppy straw was recovered from the house of the accused, hence from his exclusive and physical possession. The findings to the contrary according to learned of Additional Advocate General are based upon hypothesis conjectures and surmises. Learned trial Court has committed rt illegality in brushing aside the cogent and reliable evidence produced by the prosecution. Mr. Nainta has also emphasized that the link evidence is complete which also substantiate the prosecution case.
12. On the other hand, Mr. N.K. Thakur, learned senior Advocate assisted by Ms. Jamuna Kumari Advocate has argued that the independent witnesses namely PW3 Jagiri Ram, PW4 Baldev Raj and PW5 Prakash Chand have not supported the prosecution case and rather turned hostile. Their testimony contrary to that of the police official has caused major dent in the prosecution case. In view of such evidence available on record there emerge two possible views and in a case of this nature the view of the matter favouring the accused has rightly been taken in consideration by the trial Court. The recovery of the incriminating substance according to Mr. Thakur is not at all proved from the physical and conscious possession of the ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 9 accused. Mr. Thakur while supporting the judgment under challenge has further argued that the appeal being devoid of .
merits deserves to be dismissed.
13. In a case of this nature the recovery of narcotic drugs and psychotropic substance from the exclusive and physical possession of the accused is sine qua non for recording findings of of conviction against an offender booked under the Act. We may refer here the judgment of Bombay High Court in Rubyana alias rt Smita Sanjib Bali Vs. State of Maharashtra and others, 1996 Crl. L.J.148 which reads as follows:
"The sine qua non for attracting the penal provisions, viz. Sections 20 and 21 of the N.D.P.S. Act, and Section 25 read with Section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms. The term "possession" is not defined in the N.D.P.S. Act. The term "possession" has been judicially construed to mean, in various decisions, as under :-
'Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 10 physical presence of the accused in proximity or even in close .
proximity to the object.
(See in this connection Dula Singh v.
Emperor, AIR 1928 Lahore 272 : (1928 (29) Cri LJ 481), Kuldip Chand v. Emperor, AIR 1934 Lahore 718 : (1935 (36) Cri LJ of
300), Sunder Singh v. Emperor, AIR 1936 Lahore 738 : (1936 (37) Cri LJ 939), and Ram Charan v. Emperor, AIR 1933 All 437 rt : (1933 (34) Cri LJ 930)).
The Apex Court in Supdt. and L.R. v. Anil Kumar Bhunja, (1979) 4 SCC 274 : (1979 Cri LJ 1390), observed that the test for determining "whether a person is in possession of anything is whether he is in general control of it." The Apex Court, after examining Salmond's jurisprudence and other earlier decisions rendered by the Court, observed thus (at pp 1392-93 of Cri LJ) :-
"13. 'Possession' is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformally applicable to all situations in the contexts of all ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 11 statutes. Dias and Hughes in their book on Jurisprudence say that if a .
topic ever suffered from too much theorising it is that of 'possession'.
Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Ed. 1966) caused by the fact that of possession is not purely a legal concept. 'Possession', implies a rt right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, 11th Ed.)
14. According to Pollock and Wright, when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.
15. While recognising that 'possession' is not a purely legal concept but also a matter of fact, Salmond (12th Ed. page ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 12
52) describes 'possession, in fact", as a relationship between a person and a .
thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it'.
16. In Gunwantilal v. State of M.P. (1973) of 1 SCR 508 : (1972 Cri LJ 1187), this Court while noting that the concept of possession is not easy to comprehend, rt held that, in the context of Section 25(a) of the Arms Act, 1959, the possession of a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognized that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed (at p.
1189 of Cri LJ) :
In any disputed question of possession, specific facts submitted or proved will alone establish the existence of the de ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 13 facto relation of control or the dominion of the person over it necessary to .
determine whether that person was or was not in possession of the thing in question."
14. Now if coming to the evidence qua this aspect of the of matter available on record admittedly the house from where the contraband allegedly poppy husk and poppy straw recovered has been shown in the photographs Ext.PX-1 and Ex.PX-2. It is a rt newly constructed house having no doors and windows as the same at the time of raid were not affixed. It is not even covered by boundary wall. In case the jamabandi Ext.PW22/G/Ext.PW11/B is concerned this house has been constructed over land bearing Khasra No. 448 situate in Muhal Theh, Mauja Nangal Khurd Tehsil Haroli District Una. Jamabandi Ext.PW22/G/Ext.PW11/B further reveal that besides accused Karnail Singh there are other co-sharers who are also in possession of the land over which the house in question has been constructed. The tatima of this land is Ext.PW11/A. The jamabandi Ext.PW11/B and tatima Ext.PW11/A even prepared by Joginder Kumar Patwari, Patwar Circle Nangal Khurd. This witness tells us in his cross-examination that the persons who were present at the time of preparation of tatima on the spot had also claimed the ownership of the suit land. Meaning thereby ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 14 that there is no clinching and conclusive proof that the house in question belongs to accused Karnail Singh alone and none else.
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No other evidence is produced to show that it is accused Karnail Singh who had constructed the house in question and that the other co-sharers in the land over which the same is constructed have nothing to do therewith. The house is open from all sides of and easily accessible to each and every one. The photographs of the house make it crystal clear that the same at that time was rt lying vacant and not occupied by any one. In this view of the matter, it cannot be said by any stretch of imagination that the contraband i.e. poppy husk and poppy straw was recovered from the house which belongs to the accused alone and none else.
Therefore, the present is not a case where it can be said that the poppy husk and poppy straw is recovered from the exclusive and conscious possession of the accused.
15. The so called independent witnesses PW3 Jagiri Ram, PW4 Baldev Raj and PW5 Prakash Chand have not supported the prosecution case. PW3 Jagiri Ram tells us that though he was called by the police, however, residential house of accused Karnail Singh was not searched in his presence nor poppy husk or poppy straw recovered therefrom. Similarly, as per version of PW4 though he was called by the police to the house of Karnail Singh, however, they all left behind in the verandah whereas the police entered inside the room. Though, he said that bags Ext.P1 ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 15 to Ext.P5 were recovered in his presence however, in the same breath expressed his ignorance in this regard as according to .
him bags of sand were also lying there. He, however, has denied the bags having been opened in his presence nor he had seen poppy husk and poppy straw in the bags. PW4 only tells us that on asking by police he has taken weighing scale and weights. He of unloaded the weights and scale from the vehicle and did not see the bags of contraband nor the bags were weighed in his presence.
rt True it is, that PW3 had been Up Pradhan of local Gram Panchayat and admit that he always signs documents after readings the contents thereof. The accused is resident of his village. In his cross-examination he admit the search of the house having been conducted in his presence and PW4 Baldev Raj however, denied the suggestion that contraband was recovered from middle room of the house. He has also denied the recovery of poppy husk and poppy straw in his presence in the manner as claimed by the prosecution. He has also denied that PW Prakash Chand had come to the spot with weight and scale. He has also denied that the contraband was weighed in his presence. He, however, admit his signature on the document. If the testimony of PW4 Baldev Raj in cross-
examination is seen he claimed himself to be illiterate. However, admit that the documents of the panchayat proceedings he used to sign after getting it translated and reading out its contents for ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 16 him by someone else. He has admitted his signature on the seizure memo. However, expressed his inability to identify as to .
in which bag poppy husk was kept and in which poppy straw as according to him the bags were already sealed by the police. He has denied the sampling and sealing process, however, weighing scale according to him was brought in his presence from the of shop of PW Prakash Chand. He has denied that the contraband was collected in his presence. His signatures on the documents rt were taken in a khud (rivulet) at a distance of one K.M. from the house of accused. In his further cross-examination conducted by learned defence counsel it is admitted that he was not ward panch at that time and that 2-3 vehicles were standing out side the house of the accused at the relevant time. Some of police officials were in uniform and others were in civil dress. He admit that they were taking the bags from the vehicle inside the house.
16. If coming to the testimony of PW5 Prakash Chand in his cross-examination he admit the presence of PWs 3 and 4 on the spot, however, denied that the recovered poppy husk and poppy straw was weighed in his presence. He has also denied the sealing and sampling process.
17. It is seen from the testimonies of PWs 3,4 and 5 as discussed hereinabove that though they admit their presence in the house from where poppy husk and poppy straw was recovered and also that the documents bears their signatures ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 17 however, according to them the contraband was not recovered from the house in their presence. They have also denied the .
sampling and sealing process. They have also denied the poppy husk and poppy straw having taken into possession in their presence.
18. If coming to the evidence as has come on record by of way of the testimony of official witnesses, i.e. HC Ramesh Chand PW9, HC Harish Chander PW17, HC Balbir Singh PW18 and the rt I.O. PW22 HC Sanjay Kumar no doubt they all have supported the recovery of poppy husk and poppy straw in the manner as claimed by the prosecution as well as the sealing and sampling process, however, the testimony of the independent witnesses PWs 3 to 5 discussed hereinabove renders the statements of the official witnesses highly doubtful. The present, therefore, is a case where two version of the occurrence emerges on record. In a case of this nature the benefit of doubt is always given to the accused and not to the prosecution. Learned trial Court has, therefore, rightly concluded that the prosecution has failed to prove its case against the accused beyond all reasonable doubt.
19. The evidence as discussed hereinabove makes it crystal clear that the house in question is not in exclusive possession of the accused. The independent witnesses are not from the same locality. As a matter of fact, no one has been associated during the search and seizure belonging to that very ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 18 locality where the house in question is situated. It is not the case of the prosecution that inspite of best efforts made by the I.O. no .
one from neighbourhood could be associated to witness the search and seizure and also prove that the house belongs to the accused alone and none else. Nothing tangible has also come on record to show that it is the accused who had kept the poppy of husk and poppy straw in that house. On the other hand as per the admitted case of parties the house in question is without rt doors and windows and as such accessible to each and every one. In these circumstances, the only inescapable conclusion would have been that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. The link evidence available on record is hardly of any help to the prosecution because the recovery of the contraband i.e. poppy husk and poppy straw is not at all proved from the exclusive and conscious possession of the accused. Being so, in our considered opinion, learned trial Court has rightly acquitted the accused of the charge on appreciation of the evidence available on record in its right perspective. The findings so recorded cannot be said to be legally and factually unsustainable. The judgment as such deserves to be affirmed.
20. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. Personal ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP 19 bond furnished by the accused shall stand cancelled and surety discharged.
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(Dharam Chand Chaudhary), Judge.
(Vivek Singh Thakur), Judge.
of September 8, 2016.
(vs) rt ::: Downloaded on - 15/04/2017 21:12:34 :::HCHP