State of H.P. vs Ashok Kumar and Surinder Kumar

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 18.07.2005, passed by the learned Addl. Sessions Judge, Una in Sessions trial No. 19 of 2004, acquitting the alleged accused for the offence u/s 18-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ''NDPS Act''). The prosecution case is that a secret information was received by C. Suresh Kumar that the accused-respondent is indulged in purchase and sale of contraband goods. The said information was sent through Constable Suresh Kumar. By associating the independent witnesses in the raiding party, the house of the accused was searched by ASI Harbans Lal. One polythene bag was recovered from the bed box of the accused in which there were small iron tins (dibbis) containing opium, which on weighment was found to be 7.500 kgs.. Two samples of opium each weighing 10 grams from the polythene bag were taken and two small iron tins out of total 11 were also taken out and were sealed separately and the remaining opium of polythene bag and small iron tins of opium, which were 9 in number were also sealed separately with seal ''A''. The seal was handed over to Sh. Telu Ram, who was one of the independent witnesses. On receipt of Chemical Examiner''s report and completion of investigation, the accused-respondent was charged with the offence u/s 18 of the NDPS Act.

In order to prove its case, prosecution examined as many as 11 witnesses, whereas, accused respondent, through his statement u/s 313 Cr.P.C. denied the prosecution case.

As stated by PW-1 Constable Suresh Kumar, he was deputed by ASI Harbans Lal and in that sequence, he received a secret information that accused Ashok Kumar and Surinder Kumar were keeping the opium in their house and were selling the same to the customers. Such information was received by ASI Harbans Lal (PW-11) and since the information was sent to the Police Station for registration of the case, information report u/s 42 of the NDPS Act was sent to Dy. S.P. which was delivered to him at about 2.15 P.M. on 21.12.2003. As stated by PW-1, the house of the accused is situated in the mohalla of the village and at that time so may persons had already collected there when search was made.

PW-2 HC Sarabjeet Singh, accompanied ASI Harbans Lal (PW-11) alongwith C. Jaswinder Singh, C. Upnesh Kumar, HHC Sher Bahadur and C. Saroj Kumari and LC Baljeet Kaur in the raiding party which reached in village Behdala, at that time accused persons were present at their house. They were told that the raiding party had secret information regarding keeping the narcotics substance in their house and search was to be made and after obtaining their consent (Ext.PD) in writing, the search of the house of the accused was made and a box was recovered from the bed lying in the room from which one polythene bag containing opium and another polythene bag containing 11 small tins were recovered and after weighment, two samples were sent for chemical analysis. PW-2 in cross-examination has stated that he had never been to the house of the accused prior to this occurrence. As stated by PW-2 in cross-examination, before the search and recovery, two witnesses Telu Ram and Rakesh Kumar were joined in the raiding party and search and recovery was effected in their presence. PW-2 also stated that the accused had been living separately and the mother alongwith other brothers lives separately and further stated that the accused have their wives and children with them.

PW-3 Telu Ram known to the accused has stated that no opium was recovered on search from the room of the house of the accused. PW-3 remained Pradhan of Gram Panchayat Behdala for 20 years, however, he did not support the prosecution case to the expectation of the prosecution. PW-4 Constable Jaswinder, PW-5 HC Ved Parkash, PW-6 Constable Ranjit Singh, PW-7 LC Saroj Kumari, PW-8 HC Ishar Singh, PW-9 ASI Darshan Singh and PW-10 Inspector Surinder Sharma have endeavoured to support the prosecution case in their official capacity.

PW-11 ASI Harbans Lal at the relevant time was posted as Incharge C.I.A. Una. He deputed Constable Suresh Kumar (PW-1) in civil clothes for detection work towards Jalgran and Behdala etc. and thereafter at about 11.30 A.M. he along with other police officials mentioned above as members of the raiding party being associated reached at Chattara where PW-1 met them there on a scooter who made a statement (Ext.PA) regarding the secret information received by him while he was on patrolling at Behdala Bazaar. PW-11 accordingly made an endorsement (Ext.PA/1) and sent the same for registration of the case to Police Station, Una through Constable Jaswinder Singh and thereafter information report u/s 42 of the NDPS Act was prepared which was sent to the Superintendent of Police, Una through PW-1 Constable Suresh Kumar. The raiding party comprising of PW-3 Telu Ram, Rakesh Kumar, HC Sarabjit Singh and HHC Sher Bahadur reached at the house of the accused and made search. During search, two polythene bags were recovered and from the recovered polythene opium containing 7 kgs. 280 gms., two samples of 10 gms. each were separated which were put into two separate polythene bags and were wrapped into cloth parcels separately and remaining bulk opium of that polythene was also separately wrapped in cloth parcel and after fulfilling the formalities and the NCB form, the samples were sent for chemical examination. As stated by PW-11 in cross-examination, the accused persons were known to him prior to the recovery in question. He also stated that the house of the accused is double storeyed and around the house there is a boundary wall and main gate and six rooms on the ground floor and two rooms on the first floor. During investigation, he found that the accused were married and were having their wives and children and they were also residing in the same room from where the recovery was effected. The whole house was having one courtyard and after investigation it was revealed that both the accused were having three more brothers namely Yash Pal, Davinder and Sanjiv, out of which Yash Pal and Davinder were also married and having their wives and children and that they all were also residing in the same building. The mother of the accused was also residing in the same building but he was not aware with whom she was residing. PW-11 has very categorically indicated in cross-examination that nothing was given in writing that secret information was available against them. PW-11 has also stated that neither any document regarding ownership of the house and rooms was collected nor any ration card or electricity bill or sale deed to prove the ownership of the room was taken into possession. Statement of the concerned Patwari was also not taken. No statement of any person from the village was recorded indicating that the room from where the recovery was effected was belonging to the accused persons. No statement of inhabitants and family members of the accused was also recorded. As stated by PW-11 at the time of raid some family members of the accused were present in the courtyard. PW-11 has further stated in cross-examination that the room of the house was opened at that time and accused persons did not give disclosure statement about the recovery. As stated by PW-11, there was no lock on the bed box from where the recovery was effected. PW-11 has further stated in cross-examination that he could not get the clue to whom the accused were selling the opium and from whom they were getting the same. On perusal of NCB form (Ext.PM), it appears that in first column FIR number was recorded by the same hand writing with same ink and the doubt is created that the NCB form was not prepared at the spot.

On analysis of the prosecution witnesses, we notice that out of two independent witnesses one Telu Ram was examined and the other independent witness was not examined for the reasons best known to the prosecution. It goes without saying that the house in question from where the recovery was effected was in joint possession of the accused and the entire family of the accused and brothers were residing in the same house. In view of the testimony of PW-11, no endeavour was made of any kind to ascertain the ownership of the room. No effort of any kind was made to ascertain the conscious and exclusive possession of the room, from where the contraband goods were recovered. In our considered view, the contraband goods cannot said to have been recovered from the conscious and exclusive possession of the accused-respondent. On analysis of the prosecution witnesses and material on record and keeping in view the discrepancies in the testimonies of the prosecution witnesses, learned Addl. Sessions Judge, Una, has rightly arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt. In these circumstances, there is no scope for interference in the findings and judgment arrived at by the learned Addl. Sessions Judge, Una. In our considered view, the prosecution has failed to bring home the guilt against the accused/respondent. Criminal appeal being devoid of merit is, therefore, dismissed. Bail bonds furnished by the accused are discharged.