State of H.P. vs Brijesh Kumar

Dev Darshan Sood, J.—The State has appealed against the judgment of the learned Addl. Sessions Judge, Solan, acquitting the respondent-accused, who was charged for the offence punishable u/s 20 of the Narcotic Drugs & Psychotropic Substances Act (for short the ''NDPS Act''). The prosecution case is that on 7.5.2013 at around 5.35 p.m. Sh. Chaman Lal, SHO (PW-10) was on patrolling duty near Vardhman Chowk at Baddi. He received secret information that the accused, who was residing in a tenanted room in the Vardhman market was supplying Ganja to the public from the said room. He prepared the reasons of belief Ext.PW-10/A and forwarded the same through C. Gurvinder Singh (PW-4), which were received by Dr. Varinder Tomar, SDPO on 7.5.2003 itself and constituted a raiding party associating inter alia Sh. Satpal (PW-1) and Sh. Gurdev Singh (not produced as witness).

The raiding party then proceeded towards the tenanted premises in occupation of the accused. When the police party reached near English liquor wine shop, they noticed the accused entering his room. They also went inside the room and informed the accused that he was suspected to be in possession of Ganja and apprised him of his right to get his search conducted either in the presence of a Gazetted Officer or a Magistrate or by the police. His consent to be searched by the police was recorded as Ext.PW-10/B. All the members of the raiding party offered their personal search to the accused. These proceedings were drawn into "Panchnamas" which are Ext.PW-10/D and Ext.PW-10/E. Thereafter, the search of the room of the accused was conducted and the raiding party recovered a rexine bag bearing mark ''Polo Sport Santa Roberta''. On checking the bag, the police recovered a polythene packet bearing the inscription ''Raj Boot Wear'' which contained Ganja. This was weighed and found to be 1 kg. 400 grams. Out of this, two samples weighing 25 grams each were separated. Two samples and remaining Ganja were sealed in three different parcels with seal bearing impression ''H'' and the seal was handed over to Sh. Satpal (PW-1) vide memo Ext.PW-10/H. The sealed parcels were taken into possession vide memo Ext.PW-10/F in the presence of Sh. Satpal and (PW-1) and Sh. Gurdev Singh. Rukka (Ext.PW-10/J) was prepared and forwarded to Police Station, Barotiwala through C. Harbans Singh (PW-3). FIR (Ext.PW7/A) was accordingly registered against the accused.

From the evidence produced by the prosecution, which consists of 11 witnesses, the learned trial Court framed two points for consideration, viz. as to whether the respondent-accused was in conscious possession of 1 kg. 400 grams of Ganja, which was recovered on 7.5.2013 at about 8.30 p.m. from his tenanted premises and whether he was guilty of the offence charged. The Court answered this question in the negative.

In order to prove this case, learned trial Court takes into consideration the provisions contained u/s 50 of the NDPS Act holding that the right to be searched in the presence of a Magistrate or Gazetted Officer has not been conveyed to the accused.

Learned Addl. Advocate General submits that this provision is not attracted in the instant case for the reason that the contraband was found in rexine bag and not on the person of the accused but we are not going on the merits of this submission, for the reason that the evidence on record does not establish the case of the prosecution. PW-1 Satpal, who is an independent witness does not at all support the case of the prosecution. In cross-examination, he says that he was called by the police in Police Station, Baddi, where the police obtained signatures on different documents. He was declared hostile and subjected to extensive cross-examination by the prosecution. He denied each and every question put to him and firmly stuck to what he had stated in his examination in chief. In these circumstances, learned Addl. Advocate General submits that evidence of the hostile witness can be relied upon and it is not reversal law or appreciation of evidence that the evidence of the hostile witness is not to be believed by the Court in any circumstances. This proposition is now well settled in Ranjit Singh and Others Vs. State of Madhya Pradesh, and Smt. Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and Another,

However, even when this principle is applied, we do not find anything in the cross-examination of PW-1 to indicate that evidence of this witness, in any manner, supports the case of the prosecution. We also unable to find from his cross-examination that he is favourably inclined towards the accused or is parochial. Rather he reiterates that he was called to Police Station and was made to sign on blank papers. PW Gurdev Singh was given up in the Court stating that he had been won over by the accused but we do not find any reason on the record to substantiate or even indicate the plea of the prosecution that he in fact has been enticed by the respondent-accused.

Learned trial Court also found that the prosecution has not been able to establish the fact that the respondent-accused was in conscious or actual possession of the contraband. Learned trial Court refers and relies upon Ext.PW-9/C site plan indicating the location of the bag. Sh. Chaman Lal (PW-10) states that there is a window in the room towards the eastern side. The Court held that this would indicate that the place was open and accessible to all. Adverting to the evidence of all the witnesses, learned trial Court on the testimony of C. Harbans Singh (PW-3), who states that the bag was recovered from under the shelf in the room and the testimonies of ASI Harjit Singh (PW-9) and SHO Chaman Lal (PW-10) are to the contrary and do not rely upon the prosecution version about the place of recovery of the bag.

The case of the prosecution is that 1 kg. 400 grams of Ganja was recovered from the possession of the accused but ASI Yusuf Ali (PW-8) states that two parcels containing 350 grams ganja and 25 grams ganja sample were produced before the SDJM, Nalagarh in compliance to the provisions contained u/s 52(a) of the NDPS Act. This does not tally with what has been stated by the prosecution. It is in this backdrop, the State seeks reversal of the judgment of acquittal of the learned trial Court. What is urged before us is that the Ganja was in fact seized from the room in conscious possession of the accused. We find this to be not substantiated by the evidence on record as already considered by us. It is also urged that the statement of Sh. Satpal (PW-1) should not be discarded because he is stating the truth. We cannot accept this submission as we do not find anything in the evidence. In these circumstances, we find no merit in the appeal, which is dismissed. Bail bonds stand discharged.