Delhi District Court
The State vs . 1. Ranu on 5 March, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 84N/2008
FIR No.: 497/2007
PS: S.P. Badli
U/sec. 20/29 of NDPS Act
The State Vs. 1. RANU
S/o Heera Lal,
R/o F249, Gali No. 8,
Swaroop Nagar, Delhi.
2. MADHU
W/o Ranu,
R/o F249, Gali No. 8,
Swaroop Nagar, Delhi.
(Since deceased)
3. SUSHIL AGNIHOTRI
S/o Yogesh Kumar,
R/o A19, Rathi Market,
Krishan Vihar, Delhi.
(Since discharged)
Date of Institution : 07.11.2007
Date of conclusion of Arguments : 16.02.2010
Date of pronouncement of Judgment : 05.03.2010
JUDGMENT
1 All the three accused persons, namely, Ranu, Madhu and Sushil Agnihotri have been chargesheeted by PS Crime (S.P. Badli) for commission of offence under Section 20/29 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act').
State Vs. Ranu Page 1
of 36
2 On 25.06.07 at about 2 pm, a secret informer
came at the office of Crime Branch, Anti Robbery Section and told HC Rajbeer Singh that there was information that accused Ranu along with his wife used to sell ganja and that they had also kept huge quantity of ganja at their house of Swaroop Nagar, Badli and if raided, they could be apprehended. Informer was produced before SI Suresh Kumar as well as Inspector Ran Singh. They verified the credentials of the information and then telephonically informed Sh. Sanjay Tyagi, ACP about the aforesaid information who directed them to take immediate legal action. Information was reduced in writing vide DD No. 11. A raiding party was prepared under the supervision of Inspector Ran Singh. Members of raiding party along with secret informer reached at House No. 249, Gali No. 8, Swaroop Nagar and informer told that ganja was there in that house. Informer, then, left the spot and under the supervision of Inspector Ran Singh, raiding team entered the aforesaid house. Accused Madhu was found there along with her two kids, namely, Parul (aged 7 years) and Isha (aged 6 years). Madhu was told about the information and she was also given introduction of the members of the raiding party. In the meanwhile, Ct. Rajbeer and Ct. Bhupender of PS S.P. Badli State Vs. Ranu Page 2 of 36 also reached there while patrolling and they were also joined in the raiding party. Accused Madhu was informed about her legal rights and she was given option to call for any Gazetted Officer or Magistrate before the search could be initiated but she refused to avail her legal rights. Accused Madhu was searched inside her house by WASI Pushpa but from her such personal search, nothing was recovered. Thereafter, the aforesaid house of accused Madhu was searched and five trunks were recovered which were lying in the Northern corner of the room situated at ground floor and all the trunks were containing ganja. HC Rajbeer was sent to arrange for weighing apparatus. Total quantity of the ganja was found to be 206 Kg and 500 grams. Two samples of 2 ½ Kg each were taken out and were given serial number S1 and S2 and were separately packed and sealed. Remaining quantity of ganja was also put back in same respective trunks and trunks were separately sealed. FSL Form was also filled and requisite documentation was also done at the spot. Since the possession of ganja was found to be illegal and illicit, accused Madhu was accordingly arrested. Further investigation was carried out. On 17.07.07, accused Ranu surrendered before the court. Interrogation was made from him and he was also arrested in the present case.
State Vs. Ranu Page 3
of 36
At his instance, accused Sushil Agnihotri was also arrested. Accused Ranu disclosed that he along with his friend Sushil Agnihotri used to deal in ganja and they both had kept the aforesaid ganja in their house and when they were trying to find out the prospective buyer in the meanwhile, the police raided their house and his wife Madhu was arrested along with the contraband. Fact remains that there was no further recovery either from the accused Ranu or from accused Sushil Agnihotri. It is in these circumstances that the challan has been filed.
3 Chargesheet was received on 07.11.07. 4 Accused Sushil Agnihotri was discharged vide order dated 24.04.08. However, accused Madhu and Ranu were charged u/s 20 and 29 of NDPS Act. They pleaded not guilty and claimed trial.
5 Prosecution was directed to adduce evidence and has examined fifteen witnesses viz. PW1 WASI Pushpa Yadav (recovery witness), PW2 HC Hari Om, PW3 HC Suresh (Duty Officer), PW4 HC Chander Mohan (MHC(M)), PW6 HC Rajbir State Vs. Ranu Page 4 of 36 Singh, PW7 SI Sukh Pal, PW8 Ct. Nitin, PW9 HC Satbir Singh (official from the office of ACP), PW10 Inspector Nageen Kaushik (the then SHO, PS S.P. Badli), PW11 HC Ramesh Kumar, PW12 Smt. Savitri, PW13 Naveen Kumar (Owner of the house in question), PW14 Inspector Suresh Kumar (First IO) and PW15 Inspector Shankar Banerjee (Second IO). There is no witness examined as PW5.
6 It would be also worthwhile to mention here that as far as accused Madhu is concerned, she died on 18.04.09 due to ailment while confined in Jail and, therefore, the proceedings qua her stood abated vide order dated 21.04.09. 7 Thus presently, it is required to be seen whether prosecution has been able to prove its case against accused Ranu or not.
8 Statement of accused Ranu under Section 313 Cr.P.C. was recorded and he pleaded innocence and claimed that he and his wife had been falsely implicated. He, however, did not choose to lead any evidence in defence.
State Vs. Ranu Page 5
of 36
9 I have heard Ms. Purnima Gupta, Ld. Addl. P.P. for
the State and Sh. Deepak Sharma, Ld. Amicus Curiae for accused and carefully gone through the entire material available on record.
10 Ld. Addl. P.P. has contended that the recovery in question is from the house which was under the direct control and occupation of accused Ranu as well as his wife Madhu. She has contended that at the time when the house was raided and accused Madhu was apprehended, accused Ranu admittedly was not present. She has argued that even as per the secret information, accused Ranu as well as his wife Madhu used to deal in ganja and the recovery in question has to be assumed as recovery from both of them. She has argued that possession from his wife is not exclusive possession but tantamount to conscious possession even qua accused Ranu. She has argued that at the time of apprehension of accused Madhu, she was at the advanced stage of pregnancy and even otherwise, it is not possible that she would indulge in such heavy quantity of ganja single handedly. She has argued that both the accused were residing together and there is nothing to suggest that accused Madhu was working anywhere and from State Vs. Ranu Page 6 of 36 the circumstances appearing on record, accused Ranu is also squarely liable for the recovery of ganja from his house. She has also argued that the conduct of the accused Ranu also speaks for itself as he was absconding and surrendered much later.
11 Sh. Deepak Sharma has, on the other hand, refuted all the aforesaid contentions. He has argued that there is nothing on record which may suggest that house in question was occupied by accused Madhu or her husband Ranu. He has argued that the recovery has been planted and accused Madhu and Ranu had nothing to do with the recovery in question or with the alleged house. He has also contended that nothing was recovered from accused Ranu and he surrendered because the police was after his blood for all the wrong reasons. He has also contended that there are material contradictions appearing on record which, even otherwise, make the prosecution case highly distrustful. He has also argued that there is no explanation as to why independent persons were not joined despite the fact that the alleged recovery was from a busy residential locality. He has also expressed his surprise over the fact as to why the Incharge of the raiding team was State Vs. Ranu Page 7 of 36 not even cited as a witness and why the two alleged neutral police officials, who were from S.P. Badli, were deliberately omitted from the list of witnesses.
12 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
13 As per the case of prosecution, the informer had come at the office of Crime Branch situated at R.K. Puram. He contacted HC Rajbeer Singh directly. It is indeed not very clear as to why the AntiRobbery Cell of Crime Branch chose to pursue with the investigation. There was already a specialized Narcotic Branch functioning in Delhi and it would have been much better had the information further routed to Narcotics Branch. For reasons best known to the police officials of Anti Robbery Cell, they themselves carried out the investigation. Undoubtedly, there was no illegality in their such act but it would have been certainly better had they apprised about the information to the specialized and dedicated branch instead of carrying out the investigation by themselves.
State Vs. Ranu Page 8
of 36
14 Be that as it may, let me proceed further. As per
the prosecution case, the informer had simply told HC Rajbeer Singh that one Ranu with his wife used to deal in ganja at Swaroop Nagar, Badli. Informer had also accompanied the raiding party and he had also indicated towards House No. F249, Gali No. 8, Swaroop Nagar, Badli claiming that this was the same house where the ganja was kept. It is nobody's case that informer did not know the house number or that the members of the raiding party came to know about the house number subsequently when they had reached at the spot from someone else. If informer knew the house number, he should have revealed the same immediately. He disclosed the information to HC Rajbeer Singh but in rukka Ex.PW14/A or for that matter even in DD No. 11, the house number is conspicuously missing. Moreover, in witness box, HC Rajbeer Singh has attempted to improve upon the case as he deposed that informer had told about the house situated at Gali No. 8, Shiv Mandir Gali, Swaroop Nagar. PW14 Inspector Suresh Kumar has also claimed that informer had given the description of the house as Shiv Mandir Gali, Gali No. 8, Swaroop Nagar, Delhi. However, DD No. 11 does not say so at all.
State Vs. Ranu Page 9 of 36 15 This DD No. 11 is very important piece of
document. As per the case of prosecution, immediately after receiving the information, information was reduced in writing vide DD No. 11. Such DD No. 11 has been proved as Ex.PW1/A. However, the original DD register was never produced before the court. Moreover, since the information was regarding the possible recovery of contraband from a house, Section 42 of NDPS Act stood attracted robotically and, therefore, immediately after the information was reduced in writing, it was required to be dispatched to the senior police officials within 72 hours. There is found to be noncompliance of Section 42 of NDPS Act as there is nothing on record which may show that such information was ever sent to the senior police officials at any point of time. It seems to me that after recording the information in writing vide DD No. 11, such information was never ever transmitted to any senior police officials. This was not the mandate of law. It would have been much transparent had such information been sent to concerned superior police officials i.e. ACP. Nothing of that sort was done at all. I have seen the testimony of PW9 HC Satbeer Singh who had brought the summoned record from the office of ACP and he has nowhere whispered regarding the State Vs. Ranu Page 10 of 36 receiving of any DD No. 11.
16 Let me proceed further. Information was shared with SI Suresh and he happens to be the first Investigating Officer. In the rukka, he has categorically claimed that raiding party was prepared by Inspector Ran Singh and Inspector Ran Singh was also part of the raiding party and the members of the raiding party had entered inside the house of Swaroop Nagar under the supervision of Inspector Ran Singh. PW14 Inspector Suresh Kumar has also deposed before the court that raiding party was prepared under the supervision of Inspector Ran Singh and when they had reached at the spot, Inspector Ran Singh had also requested neighbourers and two persons working on 'aara machine' to join the raiding party but they all refused. It becomes very much perceptible that Inspector Ran Singh was the most important as well as seniormost member of the raiding party. Entire raid had been conducted under his supervision. PW14 Inspector Suresh Kumar has further deposed that when the door knocked, accused Madhu was appeared and Madhu was informed by Inspector Ran Singh about the raiding party as well as about the secret information. Thus, accused Madhu was made aware of her legal rights by State Vs. Ranu Page 11 of 36 none other than Inspector Ran Singh. Thus, for all purposes, Inspector Ran Singh was the principal witness of the prosecution and when I tried to find out his version, the exercise proved to be an exercise in futility as to my utter surprise and dismay his name does not even figure in the list of witnesses. There is no statement of him u/s 161 Cr.P.C. either. Prosecution has failed to explain as to why this important member of the raiding party, rather the supervisor of the raiding party, was not cited as witness. There was no logical reason to hold him back.
17 Things do not stop here. If prosecution case is to be believed then no independent person really obliged the police party but two officials of PS S.P. Badli arrived there while patrolling and they had joined the investigation. The case was being investigated by Crime Branch and there were at least two neutral police officials who were joined in the investigation. I tried by best to find out the version of these two alleged independent police officials, namely, Ct. Rajbeer and Ct. Bhupender of PS S.P. Badli but the result was not different. These two gentlemen are also not mentioned as witness in the list of witnesses. I call for the aid of police diary State Vs. Ranu Page 12 of 36 but did not find their statements u/s 161 Cr.P.C. either. 18 As already noticed above and as is apparent from the case of prosecution, the recovery is not from any isolated area or at any odd hour of the day. Recovery was from a busy residential locality of Badli and police has churned out typecast version claiming that neighbourers were asked and two persons working on aara machine were asked to join the investigation but none agreed. I am not inclined to believe such parrot like version of the police. Inspector Suresh has admitted in his crossexamination that no legal action was taken against those persons who refused to join the raid. He has also admitted that names and addresses of such persons were not recorded and the respective inabilities explained by them were also not recorded anywhere. He has also admitted that the house of accused was situated in residential area and no notice was served upon the neighbourers who were asked to join the investigation. PW6 HC Rajbeer Singh has also deposed that people had collected at the time of raid but surprisingly, he does not remember whether any neighbour was called to witness the proceedings. He, too, is member of the raiding party and informer had revealed the information to State Vs. Ranu Page 13 of 36 him for the first time. His testimony is in direct contrast to Inspector Suresh as according to Inspector Suresh, he had made request to the neighbourers but HC Rajbeer had pleaded his ignorance in this regard. He, however, admitted that the house in question was located in a busy populated area. PW2 HC Hari Om is also the member of raiding party but he has contradicted his fellow member PW6 HC Rajbeer Singh as in his crossexamination, PW2 HC Hari Om has very categorically deposed that neither any such neighbourer of the accused had gathered at the time of raid nor any neighbourer was called. 19 The recovery in question is admittedly a huge one but it rather makes the task of police more onerous and arduous. Police is expected to come up with complete transparency and precision moreover when it is not a case of chance recovery. The police party was having very specific information if the prosecution case is to be believed but despite that no effort much less sincere effort was made to have the corroboration from neutral corner. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and State Vs. Ranu Page 14 of 36 credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 CRLJ 127 DELHI, it has been held as under: ''Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to State Vs. Ranu Page 15 of 36 contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' 20 Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The stringent punishment prescribed by the NDPS Act clearly renders such a course imperative. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action State Vs. Ranu Page 16 of 36 against police officers. This is to lend credibility to the procedure relating to search and seizure keeping in view the punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect of law.
21 Let me now see as to what has been deposed by the members of the raiding party. As far as PW1 WASI Pushpa is concerned, her testimony cannot be read being incomplete. Let me now see the testimony of remaining three spot witnesses i.e. PW2 HC Hari Om, PW6 HC Rajbeer Singh and PW14 Inspector Suresh Kumar. As far as PW6 HC Rajbeer Singh is concerned, he is the person who had brought the weighing machine at the spot. I have seen his evidence and he has deposed that he had brought the same from a nearby place where some aara machine was installed. No employee or for that matter owner of aara machine was joined in the investigation for at least that limited purpose. Moreover, State Vs. Ranu Page 17 of 36 according to him, he had brought the weighing machine at the spot in a rickshaw. No necessity was felt of at least recording the name and address of such rickshaw puller. There is no reason as to why he was not asked to witness the proceedings. Moreover surprisingly, HC Rajbeer Singh does not know the exact description of the weights as such. He claimed that he had brought four or five number of weights but he did not remember the size of the weights. Even the other witnesses are coming up with different versions in this regard. PW2 HC Hari Om does not know as to how the weighing machine was brought at the spot. After all, he was present at the spot and he should have known the mode by which HC Rajbeer Singh had brought the weighing machine. PW6 HC Rajbeer Singh also claimed that weighing machine was of capacity of 200 Kgs but according to First IO, the machine was having the capacity of 100 Kgs only. The quantity in question was mammoth one and in such a situation, it was expected that all the witnesses would depose uniformly about the place where such huge quantity of ganja was weighed. Unfortunately, conflicting versions are appearing. If PW2 HC Hari Om is to be believed then weighing was done in open gali i.e. outside the house in question but according to PW6 HC Rajbeer Singh, the weighing State Vs. Ranu Page 18 of 36 was done inside the house. This clearly shows that everything is not right with the case of prosecution. Moreover, according to PW2 HC Hari Om, the members of the raiding team were in civil dress but according to PW6 HC Rajbeer Singh, they all were in uniform. These inconsistencies cannot be casually brushed aside. Admittedly, discrepancies are bound to show up in any criminal trial. These can be divided into two categories viz normal discrepancies and material discrepancies. Normal discrepancies occur due to normal errors of observations, normal errors of memory due to lapse of time or due to mental disposition such as shock, trauma at the time of occurrence. Material discrepancies are those which are not usual and are not expected from a normal person. While normal discrepancies do not corrode the credibility of the case, material discrepancies do. Reference be made to K. MOCHI VS. STATE OF BIHAR AIR 2002 SC 1965.
22 Moreover, PW6 has not given the satisfactory answers while he was crossexamined. He does not know as to how the Second IO had reached at the spot. He does not know as to what documents had been prepared before the rukka. He deposed that only IO can tell about such documents. He also State Vs. Ranu Page 19 of 36 claimed that he could not say as to which document was prepared first of all. Since he was not coming up with proper answers in this regard, court had crosschecked facts from this witness but despite that the witness was not able to tell the sequence of the preparations of the documents. Sequence of preparations of documents in such type of matters under NDPS Act is of vital importance because notice u/s 50 NDPS Act is required to be served first of all to ensure absolute transparency and if one of the police witness says that he does not know the sequence at all then such fact rather makes the entire recovery doubtful. Moreover, HC Rajbeer also does not know whether statements of witnesses were recorded first or whether the disclosure of accused Madhu was recorded first. Naturally, after the weighing machine was brought at the spot, it was weighed but in such type of situation, it is the entire quantity which is first weighed and thereafter sample is drawn. In the present case, something unusual was done by the police team. Rukka clearly shows that first of all two samples were drawn and thereafter, the ganja was weighed. Such type of manner of weighing is unheard of. However, the oral testimony does not match the description given in rukka as before the court the witnesses have claimed that the entire State Vs. Ranu Page 20 of 36 quantity was weighed and thereafter, the samples were drawn. Be as it may, it becomes very much palpable that the manner of weighing is found to be inconsistent as there is dissimilarity in the oral testimony and the manner mentioned in the rukka which also creates a doubt in the authenticity of the case of prosecution.
23 After the samples were drawn, sample pullandas were given serial number S1 and S2 and the remaining quantity of ganja was put back in the same five trunks and all the five trunks were sealed and FSL Form was also filled and HC Hari Om was sent to PS along with the case property. PW2 HC Hari Om has deposed that after he reached at the PS, he handed over the rukka to Duty Officer and the case property to Inspector Nageen Kaushik, Additional SHO. I have seen his examinationinchief and he did not whisper as to what further act was done by Additional SHO. As per the case of prosecution, Additional SHO/Inspector Nageen Kaushik had affixed his seal of 'NK' on the case property in the presence of PW2 HC Hari Om but testimony of HC Hari Om is conspicuously silent in this regard and he has not uttered even a single word regarding affixation of seal by Additional SHO. I State Vs. Ranu Page 21 of 36 have seen the testimony of PW10 Inspector Nageen Kaushik. He has admittedly deposed that case property was given to him by PW2 HC Hari Om and he had put his seal of 'NK' and he had also put FIR Number but in his crossexamination, he failed to tell the time when the case property was produced before him. 24 Naturally, once the seal of 'NK' was put by Inspector Nageen Kaushik, he handed over the case property to the malkhanna Incharge and it would be appropriate if I switch over to the testimony of concerned MHC(M). PW4 HC Chander Mohan was the concerned MHC(M) but surprisingly, he has not supported the case of prosecution. According to the case of prosecution, the case property was deposited by Inspector Nageen Kaushik but HC Chander Mohan has deposed that case property was deposited by SI Suresh Kumar. This again has created mystification in the case of prosecution. Moreover, MHC(M) is also duty bound to describe about the seal impressions but he has not even bothered to tell as to what type of seal impressions were there on the case property. 25 Accused Madhu, who unfortunately expired during the trial, has been arrayed as main accused by State Vs. Ranu Page 22 of 36 prosecution primarily on the basis of the fact that she was found in conscious possession.
26 The term possession has not been defined in the Act nor is it possible to lay down a strait jacket formula. In the Dictionary of English Law (Earl Jowitt) (1959 at p. 1367) "possession" is defined as "the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession unless accompanied by intention; if a thing is put into the hand of a sleeping person, he has no possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed. ........". 27 This definition has been recognized by the House of Lords in a well known case reported as Warner v. Metropolitan Police Commissioner (1969) 2 AC 256 which has been followed with approval by the Hon'ble Supreme State Vs. Ranu Page 23 of 36 Court of India in Inder Sain v. State of Punjab, AIR 1973 SC 2309 : (1973 Cri LJ 1537). Thus, the term 'possession' would imply dominion and control. A person cannot be said to be in possession of an article if he is not in a position to exercise any dominion over it.
28 Possession, in order to amount to an offence, must be conscious and exclusive. It must be to the knowledge of the person on whom liability is sought to be fastened. Such a person must have dominion and control over such article and it must be exclusive.
29 It has also been held as under by Apex Court in the case of Madan Lal and another Vs. State of H.P 2003 III AD (CR) SC 509: "It is highlighted that unless the possession was coupled with requisite mental element, i.e. Conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
The expression "possession" is a polymorphous term which assumes different colours in different contexts.
It may carry different meanings
State Vs. Ranu Page 24
of 36
in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statues.
The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended."
30 In the case of NACHHATRO V. STATE OF PUNJAB, (P&H) 2008 (1) R.C.R. (CRIMINAL) 638, the contraband was recovered from the house of lady accused. She was apprehended as she was found running in suspicious manner when she noticed a police gypsy. Police party followed her to her house and contraband was recovered which was lying in two bags under the cot. The question of exclusive possession and conscious possession had cropped up in that case also and it was observed as under by the Hon'ble High Court: "9. ..........The possession is to be determined in each case from its facts. The word as appearing in Section 15 of the Act would clearly mean physical possession besides the legal possession to bring home the offence under this Section. The possession should not only be a physical State Vs. Ranu Page 25 of 36 possession but a legal possession as well over the contraband to clearly establish the offence under Section 15 of the NDPS Act. It is also to be shown that appellant was in actual exclusive physical possession of the contraband, before the prosecution could seek conviction. The aspect of proving conscious possession to seek conviction under the NDPS Act has been a subject matter of adjudication in large number of cases. The consistent view is that mere presence of a person near the contraband would not be enough to prove physical exclusive possession. It has to be established that a person is in conscious possession of the contraband. In case of State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Crl.) 838, it was held that mere presence of the accused person at a place from where bags of poppy husk were recovered itself would not be enough to bring home the offence against him. It was observed that : "the presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondent."
State Vs. Ranu Page 26
of 36
This Court has followed this view expressed in Balkar Singh's case (Supra), in number of cases like Sukhdev Singh alias Sukha v. State of Punjab, 2006(1) RCR(Criminal) 4 (P&H) and Bikkar Singh v. State of Punjab, 2006(3) RCR(Criminal) 16 (P&H). Even in Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180 :
AIR 2002 SC 3343, it was observed by the Hon'ble Supreme Court that though the persons were found sitting on the bags, but this alone would not be sufficient proof for they being in conscious possession of the contraband. Thus the prosecution in the instant case was not able to prove that the contraband was recovered from the exclusive conscious physical possession of the appellant.
10 The submission made in regard to the possibility of tampering with the seal and samples also cannot be ignored. In Baldev Singh v. State of Punjab, 2005(1) RCR(Criminal) 823 (P&H), it is held that till the case property is dispatched to the office of Forensic Science Laboratory, these seals should not be available to prosecuting agency and in the absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the container being resealed can not be ruled out. Again in Ramji Singh v. State of Haryana, 2007(3) RCR(Criminal) 452 (P&H), this Court took a view that where the seal is not given to independent witness who remained with police and the samples are sent after a delay of 72 hours, then such circumstance is fatal to the prosecution. This aspect, in my view, would visit the present case rather with vigor. Here the police officer, being conscious of the fact that the seal was required to be handed over to independent witness, did so but again took the seal back, casting a serious doubt besides violating the requisite safeguards required to be ensured in such cases. A case of Fateh Singh v. State of Haryana, 2006(2) RCR(Criminal) 762 (P&H) again can be referred in support of this State Vs. Ranu Page 27 of 36 proposition. In this case seal after use remained throughout with the police official who was working under the Investigating Officer. The possibility of seal being tampered with and substance being changed and packed containing the samples being resealed was held to be not ruled out in this case. Thus this infirmity in the prosecution case cannot be ignored. Taking the cumulative effect of these infirmities into account, I am of the considered view that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. It will not be safe to maintain the conviction in this case in view of the infirmities as noted above. The present appeal is accordingly allowed. The conviction and sentence awarded to the appellant is, therefore, setaside. The bail bonds and surety bonds, if any furnished in the trial Court, shall stand discharged."
31 In the case of Sees v. State of Punjab, (P&H) 1995(3) R.C.R. (Criminal) 16, recovery of contraband took place from the house of the accused but the accused escaped when he noticed the police party. Ld. Trial Court concluded that it was established that the recovery was effected from the house of the accused and the accused was under the occupation of the house as well. Hon'ble Mr. Justice V.S. Aggarwal observed as under:
".........What prompts this court to believe that appellant was not in exclusive possession of the house from where the alleged recovery was effected, is the fact that it has never been the case of the prosecution that the appellant was the sole person living in the said house. It appears that there are other members State Vs. Ranu Page 28 of 36 of the family of the appellant also living with him and in that event it cannot be taken that the recovery was effected from the exclusive possession of the appellant. In face of the aforesaid, it cannot be concluded that the prosecution has proved its case beyond all reasonable doubts. The judgment and order of sentence passed by the trial Court, therefore, cannot be sustained.
32 In the case of State of Punjab v. Gurnam Kaur, (SC) 2009 (2) R.C.R. (Criminal) 309:200 (2) R.A.J. 344, three female accused persons were found sitting on a bed in a house and contraband was recovered from underneath the bed. Question of conscious possession again cropped up and it was held that the mere fact that they were sitting on a bed would not establish that they all were in conscious possession of the narcotic. It was observed that the ladies were in the house in the normal course and the mere fact that they were sitting on the cot beneath where to the contraband had been recovered would not establish that they were in the conscious possession of the narcotics.
33 In the case of Nazma Ismail Sheikh v. State of Maharashtra, (Bombay) 2001 (3) R.C.R. (Criminal) 193:2001 Crl. L.J. 1869 also, the recovery had taken place from a house and housewife was made accused. It was State Vs. Ranu Page 29 of 36 observed by Hon'ble Bombay High Court that ordinarily head of the family could be said to be the person who had domain over the family house and the responsibility of the conscious possession of articles found in the house, in the absence of any overt act, could be attributed to him alone. In that case, it was observed that the prosecution did not wait for the arrival of the proprietor of the house and it was observed that the house wife could not be said to be in the conscious possession of the contraband.
34 In the present case, it is indeed intriguing and surprising as to how the prosecution chose to label accused Madhu as the main culprit. The door of that house was knocked and she was found inside the house along with her two kids. She herself was at the advanced stage of pregnancy and simply because some contraband had been recovered from one of the rooms of that house does not automatically indicate that she was in the conscious possession of the contraband. Proceedings qua her have already abated but I am of the opinion that the prosecution should have collected further material in order to substantiate charge of conscious possession or conspiracy qua her.
State Vs. Ranu Page 30
of 36
35 As far as accused Ranu is concerned, undoubtedly,
there is no further recovery from him. He had surrendered before the court as according to him, the police was harassing him. He denied recovery of any contraband from the possession of his wife either. Prosecution wants me to believe that the house in question was under the control and occupation of accused Ranu and his wife Madhu. However, such fact has not been substantiated by the prosecution in the desired manner. As per the case of prosecution, the recovery was made from house No. F249, Gali No. 8, Swaroop Nagar, Badli and recovery took place on 25.06.07. Police did not record statement of any of the person of that locality who might have also affirmed that they both were, in fact, residing there. Statement of any such person would have proved very handy. I do not know whether the omission on this score was deliberate or otherwise but fact remains that the court does not have benefit of statement of any neighbourer or any resident of that locality who might have seen accused Ranu and his wife Madhu living in that house.
36 Moreover, according to prosecution, the aforesaid house was taken on rent by accused Madhu and Ranu and State Vs. Ranu Page 31 of 36 prosecution has heavily relied upon the version of their alleged landlord. PW13 Naveen Kumar Jain happens to be their landlord and before the police, he had claimed that he had given the house in question on rent to accused Ranu and accused Ranu had collected the keys of the house from him on 23.06.07 and started residing there with his family. He also had claimed before the police that there was no rent agreement and two days thereafter i.e. on 25.06.07, he learnt that wife of Ranu had been arrested by police and huge quantity of ganja had been recovered from that tenanted house. 37 Let me see as to what PW13 Naveen Kumar has to say before the court. In his deposition, he claimed that he had purchased a plot in Shiv Mandir Gali and he had rented out one room of said plot to one Jhabbu and one Ranu. He claimed that it was rented out on 23.06.07 and rate of rent was Rs. 900/ per month and keys were handed over to them on 23.06.07 and they started residing there. I take a little pause here. As already noticed above, the house in question is F249, Gali No. 8, Swaroop Nagar. Landlord has not given this precise house number. He only talks about a plot. How to assume that plot referred in GPA is the same from where the recovery was State Vs. Ranu Page 32 of 36 made? Things do not stop here. Prosecution did not find any necessity of, at least, collecting GPA from him and, therefore, it is not at all clear whether the house in question i.e. F249 was in fact situated in the aforesaid unknown plot referred by Naveen Kumar. There is no rent agreement and moreover, the alleged tenancy was created only two days before the alleged recovery. According to PW13 Naveen Kumar, he had handed over the keys to two persons i.e. accused Ranu and Jhabbu. Jhabbu is stranger to this case. Even in his crossexamination, PW13 Naveen Kumar has deposed that Jhabbu and Ranu both had come together and he did not know as to which of them wanted to take the premises on rent. He also deposed that he did not personally see them or even accused Madhu residing in said tenanted room. This witness was crossexamined by the prosecution and in such crossexamination, he claimed that he had not stated before the police that on 23.06.07, accused Ranu had taken away the keys of the rented house and he also claimed that he had not stated before the police that accused Ranu and his wife had started living in the tenanted premises. Thus the testimony of this alleged landlord does not take us anywhere. The investigating agency did not make sincere efforts in order to show that the house in question was given State Vs. Ranu Page 33 of 36 on rent to accused Madhu and her husband Ranu. No documentary proof is there. There might be some electricity connection or water connection in that house but nobody knows as to who is the registered subscriber of such connection. As already noticed above, no neighbourer was associated in the investigation and it is very difficult to hold that the house in question, from where the police had recovered heavy quantity of ganja, was under the control and possession of accused Madhu or for that matter her husband Ranu. On the other hand, the alleged landlord has rather claimed that one Jhabbu had also come along with Ranu and he did not know as to who wanted to take the premises on rent. In the case of Sukhdev Singh v. State of Haryana, (P&H) 2008(1) R.C.R. (Criminal) 503, poppy husk was recovered from the one room of the house. Accused was not present in that room but was present in another room of that very house. It was held by the Hon'ble Punjab and Haryana High Court, the accused could not be said to have conscious possession of such contraband. It was observed as under:
"15. Analysing the evidence in totality, it can be noticed that though the prosecution evidence would show that the recovery of the contraband was effected from the house but it is nowhere established that this house belonged to the appellant. In that sense, it is State Vs. Ranu Page 34 of 36 not proved beyond reasonable doubt that if this contraband was recovered from the conscious possession of the appellant. The raiding party was consisting of two senior police officers holding the rank of Sub Inspector. They have still not investigated the case properly. They can be expected to know that in order to fasten the appellant with contraband and its recovery, it was essential for them to prove and show that the house was that of the appellant and further that it was in his exclusive possession. Even if it be taken for the sake of argument that this recovery was from a house from where the appellant was also arrested, it would still not be enough to say that the contraband was recovered from his conscious possession. This could have only been achieved by proving that the house belonged to the appellant and was in his possession and so too the contraband........"
38 In view of my aforesaid discussion, I feel that prosecution has not been able to prove what has been alleged in the challan. Accused Ranu was not found in obvious possession of any contraband. There is no material to infer conspiracy either. There is nothing to suggest that said house was under his exclusive possession. There is nothing to indicate that he was having conscious possession of Ganja allegedly recovered in the present case. He could not have been roped in merely due to the fact that he was husband of Madhu. I, therefore, extend benefit of doubt to accused Ranu. Accused Ranu is accordingly granted benefit of doubt and is State Vs. Ranu Page 35 of 36 acquitted for the offence under Section 20 of NDPS Act. He be released forthwith if not required otherwise. 39 Case property stands confiscated and be destroyed as per rules after expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be. 40 File be consigned to Record Room.
Announced in the open Court On this day of 05th March, 2010.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District: Rohini Courts: Delhi
State Vs. Ranu Page 36
of 36