Bhup Singh vs State of Haryana

Jai Singh Sekhon, J. (Oral)

Bhup Singhappellant was tried and convicted by the learned Additional Sessions Judge, Bhiwani, on a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as (''the Act'') for the possession of two kilograms of opium. He was sentenced to undergo ten years'' rigorous imprisonment and to pay fine of Rs. 1,00,000/ or in default of payment thereof to further undergo two years'' rigorous imprisonment. Being aggrieved against the abovereferred conviction and sentence; the appellant has approached this court.

In brief, the facts of the prosecution case are that Sub Inspector Pohap Singh, the then Incharge of Police Station Sadar Bhiwani alongwith some other police officials was present in the area of village Bamla during usual patrolling when he received secret information regarding the indulgence of the accused in the sale of opium. In the meanwhile, Sub Inspector Sumer Singh of C.I.A. Staff, Bhiwani, also happened to arrive there. The police party then went to the house of the accused. On seeing the police party, the accused tried to run away from his house. He was apprehended and two kilograms of opium was recovered from his possession. A sample of ten grams was separated and sealed. The remaining bulk of opium was also put in a sealed parcel. All these articles were taken into possession vide memo (Exhibit P.D.). Rough site plan (Exhibit P.F.) of the spot was also prepared. A case under Section 18 of the Act was got registered against the accused through ruqa (Exhibit P.E.). The sample of opium was sent to the Chemical Examiner, who vide his report (Exhibit P.C.) confirmed it to be of opium due to the presence of morphine and meconic acid therein.

After completion of investigation, the accused was arraigned for trial on such like allegations.

Before the trial Court in order to prove its abovereferred case, the prosecution examined Sub Inspector Sumer Singh (P.W. 1) and Sub Inspector Pohap Singh (P.W. 2) as witnesses to the actual recovery while formal evidence of Constable Prem Singh and Moharrir Head Constable Om Parkash was tendered on affidavits, Exhibits P.A. and P.B. respectively, as these witnesses were not required by the defence for crossexamination purposes.

The accusedappellant set up the plea of denial simpliciter and false implication in his statement recorded under Section 313 of the Code of Criminal Procedure. It reads as under :

"Some residents of Uttar Pradesh were dealing in opium etc. in village Bamla as well as in surrounding villages. The residents of village Bamla including myself complained about it to the Senior Superintendent of Police, Bhiwani, and Deputy Inspector General of Police. Those persons of Uttar Pradesh were dealing in opium etc. in collusion with the police. I have been falsely implicated in this case. Nothing was recovered from me."

In support of his defence, the appellant examined Sahaj Ram (D.W.1).

The trial Court, however, believing the prosecution evidence, convicted and sentenced the appellant, as referred above.

I have heard the learned counsel for the parties besides perusing the record.

It is improbable that the accusedappellant would try to slip away from his house alongwith opium during day time at the sight of the police party. On the other hand, he would try to conceal the opium in his house rather than exposing himself to the notice of the police party. Thus, it appears to be a case of that type where the recovery of opium from house search of the accused has been depicted from his personal search in order to prove his exclusive possession. Both the official witnesses had failed to state that the accused was the sole adult occupant of that house.

Under these circumstances, the order of conviction and sentence of the trial Court being not sustainable, is hereby set aside by accepting this appeal and acquitting the appellant of the said charge.

The appellant is on bail. The bail bonds be discharged.