Himachal Pradesh High Court
State Of H.P vs Tikam Ram on 2 September, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CRMPM No.859 of 2015 Date of Decision: September 2, 2015 .
State of H.P. ....Petitioner.
Versus
Tikam Ram ....Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of The Hon'ble Mr. Justice P.S. Rana, Judge. For the petitioner : Mr. J.S. Guleria, Assistant Advocate General.
rt For the Respondent Sanjay Karol, Judge.
: None State has filed the present petition, under the provisions of Section 378(3) of the Code of Criminal Procedure, seeking leave to appeal against the judgment dated 19.3.2015, passed by Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh, in Sessions Trial No.40 of 2014, titled as State of Himachal Pradesh v. Tikam Ram, whereby accused-
respondent Tikam Ram (hereinafter referred to as the accused), stands acquitted of the charge for having committed offence, punishable under the provisions of Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter after referred to as the Act).
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2. In relation to FIR No.136, dated 5.6.2012 (Ex. PW-
9/A), registered at Police Station, Kullu, District Kullu, Himachal Pradesh, under the provisions of Section 18 of the Act, accused .
Tikam Ram was charged to face trial, for having committed offences, punishable under the provisions of Section 18 of the Act.
3. Briefly stated, case of the prosecution is that on of 5.6.2012, a police party, headed by SI Sunil Kumar (PW-9) and consisting of Constable Inder Dev (PW-2), HHG Charan Singh, rt Up Pradhan Om Prakash (PW-1), was present in village Gahar.
At 8.15 p.m., when the police party reached near an apple orchard, it noticed some opium plants in the orchard. The area was measured and found to be 600 square feet. On counting, the opium plants were found to be 600 in number. Photographs (Ex.
PA-1 to PA-3) of the spot were taken by SI Sunil Kumar.
Intimation was sent to Dy.S.P. (Headquarters), who orally directed to uproot 20 plants and destroy the remaining plants.
Accordingly, 20 plants were uprooted and sealed in a cloth with seal impression 'N'. Impression of the seal was taken on a piece of cloth (Ex. PW-1/B) and also on NCB-1 form (Ex. PW-7/A).
Thereafter, the parcel, NCB-1 form and relevant papers were taken into possession vide memo (Ex.PW-1/A). The remaining ::: Downloaded on - 15/04/2017 18:51:34 :::HCHP ...3...
plants were destroyed on the spot. Ownership of the orchard was ascertained from Up Pradhan Om Prakash (PW-1), who told that the same belonged to the accused. Rukka (Ex.PW-2/A) was sent .
through Constable Inder Dev, on the basis of which FIR (Ex.PW-
9/A) was registered at Police Station, Kullu. The case property was produced before SHO Sher Singh, who resealed the same with his own seal of seal impression 'K' and handed it over to of MHC Ram Krishan (PW-7), who entered the same in Malkhana Register (Ex.PW-7/B). The land was got demarcated through rt Kanungo Puran Chand (PW-3) and Patwari Neel Chand (not examined), who issued demarcation report (Ex.PW-3/A). It was found that the accused had planted opium plants on Khasra Numbers 786/1 and 853/1. The seized plants were sent for chemical analysis and report (Ex.PW-9/E) was taken on record.
During investigation, police also took into possession revenue record, i.e. copy of Masl Hakiat (Ex.PW-3/D), tatima (Ex.PW-3/B), order passed by AC 1st Grade (Ex.PW-3/C), Copy of Khasra Girdawari (Ex.PW-3/E) and affidavits (Ex.PW-4/A, 5/A, 13/A, PB, 14/A, 15/A, PC, 16/A & 12/A) of different persons. With the completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
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4. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present petition for leave to appeal .
by the State.
5. Mr. J.S. Guleria, Assistant Advocate General, has taken us through the record of trial Court, including testimonies of the prosecution witnesses.
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6. Misl Hakiat (Ex.PW-3/D) shows that the land in question is jointly owned by the accused and other co-sharers.
rt No doubt, the co-sharers have filed affidavits to the effect that the land is in exclusive possession of the accused, but however, the said affidavits have not been proved on record, in accordance with law. Report (Ex.PW-3/A) given by Field Kanungo Puran Chand (PW-3) is in the nature of inspection report and not demarcation report. Kanungo Puran Chand admits that he did not carry out any demarcation on the spot and only the spot was identified by him at the instance of police, with the help of Tatima (Ex. PW-3/B). Not only this, he also states that he has not fixed Pucca points, while carrying out demarcation/inspection of the spot. Also, there is no mention of adopting of triangular system, while carrying out demarcation.
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7. Thus, perusal of testimony of the revenue official reveals that the demarcation was not conducted in accordance with the guidelines issued by the Financial .
Commissioner. Triangular system was not adopted, while carrying out the demarcation. This Court in Salig Ram and others v. Ram Lal and others, Latest HLJ 2008 (HP) 484, has clearly held such demarcation to be illegal.
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8. Also, it has not been proved on record that the accused alone was in possession of the land over which the rt opium plants were found to have been grown.
7. Hence, trial Court, in my considered view, rightly acquitted the accused. There is no error apparent on the face of record or illegality or perversity, resulting into miscarriage of justice, in the findings returned by the trial Court, warranting interference by this Court.
As such, present petition for leave to appeal, being without any merit, is dismissed and disposed of.
( Sanjay Karol), Judge.
( P.S. Rana )
September 2, 2015(sd) Judge
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