Himachal Pradesh High Court
____________________________________________________________ vs Bhotu & Others ...Accused/Respondents on 26 July, 2019
Author: Jyotsna Rewal Dua
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. Appeal No. 150 of 2011
Reserved on: 09.07.2019.
.
Decided on:26.07.2019
____________________________________________________________
State of Himachal Pradesh ...Appellant
Versus
Bhotu & others ...Accused/Respondents
____________________________________________________________
Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
__________________________________________________________
For the appellant : Mr. Narinder Guleria, Additional Advocate
r General.
For the respondents : Mr. V.S.Rahore and Mr. Lakshay Thakur,
Advocates.
__
Jyotsna Rewal Dua, J.
State of Himachal Pradesh is in appeal against the judgment dated 06.12.2010, passed by learned Special Judge, Chamba Division in Sessions Trial No.18 of 2010, acquitting three accused persons namely Bhotu, Jagdish Kumar and Rajeev Kumar from offences under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act.
2. Respondent No.3, Rajiv Kumar died during the pendency of the present appeal. The appeal, therefore, has abated against respondent No.3.
1Whether reports of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 23. The prosecution case is:-
.
3(i) On 17.02.2010, ASI Nasib Singh (PW-9), HC Virender Singh (PW-1), C. Surinder Kumar (PW-2) and C. Rajesh Kumar (PW-3), laid a nakka at Village Hutta Chowk, at around 3.20 a.m. 3(ii) The police party was carrying complete I.O. kit containing weights of 2Kg. plus ½ Kg., weighing scale, megha torch, torches, etc. 3(iii) At around 3.30 a.m., vehicle No.HP-01C-0185 came from Telka side towards nakka. The three accused persons were occupants of this vehicle. Accused No.3, Rajiv Kumar, was driving the vehicle. The vehicle was stopped by ASI Nasib Singh (PW-9). He smelled charas from the vehicle and thus, expressed his intention for searching it.
3(iv) Before conducting the search, the accused persons were informed about their legal rights for getting the vehicle searched before a Magistrate or a Gazetted Officer. However, the accused gave their joint consent for getting the vehicle searched by the police party.
Accordingly, Memo Ext. PW-1/A, was prepared bearing signatures of all the accused persons. C.Surinder Kumar (PW-2) and C.Rajesh Kumar (PW-3), stood as witnesses. Before conducting the search, the police ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 3 officials also gave their personal search to the accused persons and took their 'Jama Talashi.' Memo Ext. PW-1/B, was prepared accordingly.
.
3(v) During the search of the vehicle, a black coloured bag (Ext. P-2) was found beneath the seat, containing another bag (Ext. P-3), which had candle and ball type coloured substance, found to be charas (Ext. P-4). Charas on weighing was found to be 8 Kgs. The articles/bags were placed back, as they were.
3(vi) The bags were packed and sealed in cloth parcel (Ext. P-1) with 5 seals of seal 'H'. Seizure Memo Ext. PW-1/D was prepared.
The specimen impression of seal is Ext. PW-1/C and NCB form prepared in triplicate is Ext. PW-8/D. The site plan was prepared as Ext.
D-A. 3(vii) Rukka Ext. PW-8/A was prepared by I.O. (PW-9) at the spot and sent to P.S. Kihar through C.Surinder Kumar (PW-2) for registration of the case and copy of the same was also sent to S.P. Chamba through C. Rajesh Kumar (Ext. PW-3) which is Ext. PW-9/D. FIR No.11/2010, Ext. PW-8/B, thus, was registered against the accused persons.::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 4
3(viii) Vide Arrest Memo Ext. PW-9/B, the accused persons were arrested. Their personal search was also conducted vide Memo Ext.
.
PW-9/C. 3(ix) The case property (parcel containing recovered charas, sealed with 5 seals of seal 'H' along with specimen seal, NCB form in triplicate, recovery memo etc.) were produced before SHO Pritam Singh (PW-8). PW-8 SHO Pritam Singh, resealed the case property vide reseal Memo Ext. PW-4/A. The specimen resealed impression, is Ext. PW-
4/B. The resealing of the parcel was with three seals of seal 'B'. All the codal formalities were completed. After resealing, the parcel was deposited with MHC. The case property was sent for chemical analysis to FSL Junga. As per the report of FSL (Ext. P-A), the contraband was found containing charas and the resinous substance to the tune of 21.11% w/w. Thereafter, the challan was prepared against the accused persons. The accused were charged for offences punishable under Section 20 read with Section 29 of NDPS Act.
3(x) The accused pleaded not guilty and claimed trial. After the closure of prosecution evidence, wherein, statements of nine witnesses were recorded, the accused examined one witness in defence and also recorded their statements under Section 313 Cr.P.C. The ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 5 learned Trial Court has acquitted all the accused vide impugned judgment. Hence, aggrieved, the State is in appeal against the judgment .
of acquittal.
4. We have heard Mr. Narinder Guleria, learned Additional Advocate General, for the State, Mr. V.S. Rathore, learned counsel for the accused persons and have also gone through the record.
5. Learned Trial Court has acquitted the accused persons primarily on the grounds:-
5(i) DW-1, Shiv Kumar had deposed about proximity of his house to Hutta Chowk. However, police has not ensured the presence of independent witnesses from the locality.
5(ii) The I.O.(PW-9) has admitted that a curve on the road has not been reflected in the site plan prepared by him on the spot.
Therefore, possibility of losing sight of showing some houses on the spot, cannot be ruled out.
5(iii) All three accused were given joint option for search of vehicle either before a Gazetted Officer or before a Magistrate, whereas, separate option was required to be given and taken from each of the accused.::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 6
5(iv) Prosecution witnesses had admitted that all the accused persons disowned the contraband. This, coupled with fact that there was .
a suggestion from the defence about there being another person in the vehicle, who on seeing the police, ran away and the contraband actually belonged to him; therefore, in such circumstances, it could not be said that prosecution had proved that the contraband was in the joint, exclusive and conscious possession of all the three accused persons or that it was in exclusive possession of anyone of them.
5(v) PW-1 Virender Singh, in his cross-examination had admitted that seals Mark A/1 to A/7, on parcel Ext. P-1, when produced in Court, were not visible and could not be read. Therefore, it cannot be said with certainty that the parcel which was produced in the Court, was the same, which was made on the spot after the recovery of the contraband.
Statements under Section 313 Cr.P.C:-
6. Before discussing the above points, it will be pertinent to notice hereinafter the statements of all the accused persons to questions No.3 & 4, recorded under Section 313 Cr.P.C:-
6(i) "Q.No.3:- It has further come in evidence against you that at 3.30 A.M., when the police was on Nakka, vehicle No.HP-01C-0185 came from the side of Telka which was ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 7 being plied by your co-accused Rajeev Kumar, what have you to say?
Ans. It is correct."
.
"Q.No.4:- It has also come in evidence against you that the police on Nakka stopped the vehicle in which you alongwith your co-accused were travelling and enquired as to you and your co-accused were going and the destination disclosed by you and your co-accused was Chamba,, what have you to say?
Ans. It is correct."
6(ii) Question No.24 and it's answer as given by accused Bhotu and Jagdish Kumar, is as under:-
"Q.No.24:- Have you anything more to say?
Ans. I am innocent. I along with my brother Jagdish was travelling in the vehicle in question which was being driven by its driver, Rajeev Kumar and I was being taken to Chamba hospital for treatment by my brother Jagdish, since, I was suffering from some stomach pain. The charas was left by a person who on seeing the police party ran away from the vehicle when it was stopped by the police for checking and a false case has been planted against me."
6(iii) The answer to this question, as was given by accused Rajeev is as under:-
"Ans. I am innocent. I was driving the vehicle in question and was carrying Bhuto in the company of his brother Jagdish to Chamba hospital for treatment since ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 8 Bhotu was suffering from some stomach pain and being driver I am not supposed to check the luggage etc. of the passengers travelling in my vehicle. The charas was left by .
a person who on seeing the police party ran away from the vehicle when it was stopped by the police for checking and a false case has been planted against me."
6(iv) The above extracted statements of accused recorded under Section 313 Cr.P.C are very categorical to the extent:-
(a) that all three accused persons were present at r 3.30 a.m., on the spot in the vehicle No. HP-01C-0185;
(b) that the accused persons were there in Vehicle No.HP-
01C-0185 , which was coming from Telka side being driven by accused Rajeev Kumar;
(c) that on being asked by the police personnel present on the spot during nakka at 3.30 a.m., the accused persons disclosed Chamba to be their destination;
(d) that the contraband/charas was actually recovered from this vehicle by the police during its search, while the vehicle was in occupation of accused persons.
Independent witnesses:-
7(i) In view of the above admission on the part of the accused persons themselves in respect of charas being there in the vehicle, in ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 9 which, they were travelling; its recovery by the police after stopping the vehicle during nakka and completing all codal formalities; the incident .
having occurred at around 3.30 a.m.; it cannot be said that any prejudice has been caused to the accused persons, even if, no independent witness was associated; even if, site plan has not been allegedly correctly drawn;
even if joint option/consent was given/taken from the accused persons for the search of the vehicle; since, it is a case, where recovery of contraband from the vehicle at 3.30 a.m., during nakka has been admitted by the accused persons themselves.
7(ii) Even otherwise, recovery was admittedly effected at around 3.30.A.M., i.e., the dead of night at an isolated place. At this hour, it cannot be expected from the police officials to associate independent witnesses. Though, as per DW-1, there were two houses near the spot, even then, case of the prosecution cannot become weak merely on the ground of non-association of independent witnesses, especially, when recovery of contraband itself is admitted by the accused persons.
7(iii) Reliance by learned defence counsel on (2018)1 Supreme Court Cases 222, titled as Krishan Chand vs. State of Himachal Pradesh, to contend that failure to associate independent witnesses at ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 10 the time of recovery will create a dent in the prosecution case, is misplaced. In this very case, it has also been observed that:
.
"26. It is settled law that the testimony of official witnesses cannot be rejected on the ground of non-
corroboration by independent witness......."
Each case is to be decided on its own facts. In our view, in the facts and circumstances of the case, present is not that a case, where non-association of independent witnesses will efface the reliability of the prosecution evidence. Reference in this regard can be made to 2018 LHLJ 657, in State of Himachal Pradesh vs. Tharban Lal:-
"8. There is no dispute with regard to case law cited by learned Additional Advocate General in pronouncement of the Apex Court in cases titled State of Haryana versus Mai Ram, son of Mam Chand, reported in (2008) 8 to Supreme Court Cases 292; State of Punjab versus Nirmal Singh, reported in (2009) 12 Supreme Court Cases 205; State of Punjab versus Leela, reported in (2009) 12 Supreme Court Cases 300; State of Punjab versus Surjit Singh and another, reported in (2009) 13 Supreme Court Cases 472; and Kulwinder Singh and another versus State of Punjab, reported in (2015) 6 Supreme Court Cases 674, wherein it has been held that in absence of any infirmity in the evidence of official witnesses,conviction can be based on the testimony of official witnesses only and there is no legal bar to convict an accused in absence of independent witnesses only on the basis of statements of official ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 11 witnesses unless there is material to discredit their statements or some infirmity is pointed out in their evidence as trustworthy, credible and unimpeachable .
evidence of official witnesses beyond reproach is sufficient to convict an accused for the reason that it is the quality, not the quantity, which matters."
8. Non-visibility of Seals:-
8(i) While supporting the judgment of learned Trial Court, it has been contended by the learned defence counsel that seal of impression 'B' put by PW-8 as well as seal affixed by I.O. (PW-9) on parcel Ext.P-1, when produced during trial were either not readable or not visible. Therefore, it cannot be said with certainty that parcel produced in Court was the same which was made on the spot.
It has come in the record that parcel Ext. P-1, was taken to FSL in accordance with procedure, was kept in safe custody in FSL, examined there and was dispatched with the endorsement. The report of Chemical Officer, Ext.P-A, is already on record of the case. The observations of learned Trial Court that because of this, it cannot be said with certainty that parcel produced in the Court was the same which was made on the spot after recovery of charas, loosing its relevance, more so, in view of the admission of the accused persons themselves in their statements under Section 313 Cr.P.C to the effect that charas was ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 12 actually recovered from the vehicle. However, it will be profitable to refer para to 2018 LHLJ, 657 in State of Himachal Pradesh vs. .
Tharban Lal:
"22. There is no dispute with regard to contention of learned Additional Advocate General canvassed by relying upon pronouncement of Apex Court in case titled as State represented by Inspector of Police, Chennai versus N.S. Gnaneswaran, reported in (2013) 3 Supreme Court Cases 594; and judgment, dated 1st September, 2016, rendered by this Court in Criminal Appeal No. 201 of 2016, titled as State of Himachal Pradesh versus Kishori Lal, that nonproduction of original seal in the Court is not fatal to the prosecution case unless it is established on record that such nonproduction has caused serious prejudice to the accused ......."
9. Prejudice caused to the Accused:-
No prejudice has been shown to have been caused to the accused persons either on account of independent witnesses having not been associated or the seals being not visible during trial. No question in this regard, no suggestion regarding this, has been put to the prosecution witnesses to the I.O. It will be apt to quote relevant paras in this regard from 2013 (14) SCC 420, titled as Gian Chand and others vs. State of Haryana:-
"14. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 13 explained by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva observing as under: "40. Furthermore, there cannot be any dispute with respect .
to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."
"15. The defence did not put any question to the Investigating Officer in his cross-examination in respect of missing chits from the bags containing the case property/contraband articles. Thus, no grievance could be raised by the appellants in this regard."::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 14
10. Violation of Section 50 of NDPS Act:-
.
10(i) Present was a case of search of vehicle. Section 50 of NDPS, Act will be applicable where search is in relation to a person as contrasted to search of premises, vehicles, articles or bag. Reference can be made to 2004 (2) SCC 608 in Krishna Kanwar vs. State of Rajasthan, 2003 (7) SCC 465 in Madan Lal and another vs. State of H.P. & 2005 Cr.L.J. 2208 in State of Himachal Pradesh vs. Pawan Kumar Thus, contention raised by learned defence counsel regarding violation of Section 50 of NDPS Act, is misplaced.
10(ii) It is also to be noticed that accused persons in their statements recorded under Section 313 Cr. P.C. did not say that they were unaware about their rights or they were misled by taking their joint option. Reference can be made in this regard to relevant paras from 2004 (2) SCC 56, titled as Prabha Shankar Dubey vs. State of M.P.:-
"7. It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50 What is necessary is that the accused (suspect) should be made aware of ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 15 the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the .
Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait- jacket formula."
"15. Additionally, it may also be noticed that while giving statement under Section 313 of the Code of Criminal Procedure, 1973 (for short the 'Code'), the accused did not say that he was unaware of his rights or that he was misled on that account in any manner. On the contrary, in general and vague manner it was only said that he did not know or he had no idea of the allegations. Though that by itself is not sufficient to convict accused, in view of the procedural safeguards required to be observed by compliance with the requirements of Section 50, yet that is of some relevance in appreciating the grievance, now sought to be ventilated. There is no infirmity in the impugned judgment to warrant interference. The appeals are accordingly dismissed."
11. Presumption & Conscious possession:
11(i) The only defence put forward by the accused persons is that though the contraband/charas was recovered from the vehicle in their occupation, but this did not belong to them and it belonged to a person who "on seeing the police, ran away from the vehicle when it was stopped by the police for checking and the charas was left by him."::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 16
Who was that other person, has not disclosed by the accused persons.
No particulars of that person have been provided by accused persons.
.
This was a defence put forward by the accused persons. It was for the accused persons to substantiate their defence. This fact was in their special knowledge. The prosecution satisfactorily denied the suggestion that there was any other person present in the vehicle besides the accused persons. The statements of the prosecution witnesses are natural, coherent and in harmony with each other and inspire confidence. If there was any other person in the vehicle, then it was incumbent upon the accused persons to have disclosed about his particulars to the police. It is highly improbable that all of them were in one vehicle with another person as alleged and yet they were not aware about anything regarding that other person but for the fact, that contraband admittedly recovered from the vehicle belonged to that unknown person. It would be profitable to quote relevant paras from 2013 (14) SCC 420, titled as Gian Chand and others vs. State of Haryana:-
"19. From the conjoint reading of the provisions of Section 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 17 contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to .
prove otherwise."
"21. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872 (hereinafter referred to as `the Act 1872')."
"22. In State of WeIst Bengal v. Mir Mohammad Omar, this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.
"38......Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (SCC p. 393, para 38)."
11(ii). The next related question is whether all the accused persons could be said to be in conscious possession of the contraband. It is proved on record that all the accused were in physical possession of ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 18 the charas. Recovery of charas from the vehicle, has been admitted by all the accused. It is settled law that once possession is established, the .
accused, who claims that it was not in his conscious possession has to establish it, because these facts are in his special knowledge. Reference can be made to:-
(a) 2010 (9) SCC 608, titled as Dharampal Singh vs. State of Punjab and Major Singh vs. State of Punjab:-
"12. We do not find any substance in this submission of the learned counsel. Appellant, Dharmpal Singh was found driving the car whereas appellant, Major Singh was travelling with him and from the dicky of the car 65 Kilograms of opium was recovered. The vehicle driven by the appellant, Dharampal Singh and occupied by the appellant, Major Singh is not a public transport vehicle. It is trite that to bring the offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused."
"16. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in the case of ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 19 Madan Lal and another vs. State of H.P., wherein it has been held as follows:
"26. Once possession is established, the person .
who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Section 35 and 54 of r the Act."
(b) 2003 (7) SCC 465. titled as Madan Lal and another vs. State of H.P. :-
"26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
"28. In fact, the evidence clearly establishes that they knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing. The accused- appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle.::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 20
The logic applicable to other accused-appellants also applies to Manjit Singh."
.
11(iii) Thus, it was for the accused persons to have rebutted the presumption under Section 35 & 54 of NDPS Act read with Section 106 of Indian Evidence Act, which they failed to do. The purpose behind recording statement of accused under Section 313 Cr.P.C is to give him an opportunity to explain the circumstances appearing against him in evidence adduced by prosecution. It would be pertinent to refer to 2010 (9) SCC 608, titled as Dharampal Singh vs. State of Punjab and Major Singh vs. State of Punjab:-
"21. As part of fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and couched in a form intelligible to the accused. But it does not follow that omission will necessarily vitiate the trial. The trial would be vitiated on this score only when on fact it is found that it had occasioned a failure of justice."
"22. Bearing in mind the aforesaid principle when we consider the facts of the present case we find that the prosecution intends to prove that the appellants were in ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 21 possession of the opium by disclosing that illicit article was recovered from the dicky of the vehicle driven and occupied by them. Possession is a mental state and what has been unfolded .
by the prosecution is that on search of dicky of the car opium was recovered. Circumstances aforesaid lead to the conclusion that the appellants were in conscious possession. Therefore, it cannot be said that appellants were not told to explain the circumstances appearing against them in the evidence."
"24. In the case in hand we have in extenso reproduced the circumstances appearing against the appellants in the evidence and on fact found that the circumstances appearing against them were put to them in their statement under Section 313 of the Code of Criminal Procedure. In any of the view it has not occasioned failure of justice."
The accused have not given any explanation. The recovery of contraband has been admitted. Therefore, the possession of contraband by accused persons has to be held as conscious in the factual background of the case. The judgments relied upon by learned counsel for the accused persons in State of H.P. v. Abdul Latif (Cr. Appeal No.159/2012) & in Khekh Ram v. State of H.P. (Cr. Appeal No.1110/16), are based upon individual facts of those cases and are not applicable to the facts of instant case.
12. Therefore, in view of the above discussion/observations, the present appeal succeeds, hence, the same is allowed. The findings of acquittal against the accused persons, as recorded vide judgment under challenge, passed by learned Special Judge, Chamba Division, in ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 22 Sessions Trial No.18 of 2010, are thus quashed and set aside.
Consequently, all the accused persons, namely, Bhotu and Jagdish .
Kumar, are held guilty and convicted of offences punishable under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act. Let them surrender their bail bonds and they be produced in this Court on 20.08.2019, for being heard on quantum of sentence. Production warrants be issued accordingly.
(Dharam Chand Chaudhary) Judge (Jyotsna Rewal Dua) Judge 26th July, 2019 (reena) ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP 23 .
::: Downloaded on - 29/09/2019 01:20:23 :::HCHP