State of H.P. vs Om Prakash

Deepak Gupta, J.—This appeal by the State is directed against the Judgment dated 09.07.1999 delivered by the learned Special Judge, Kangra Division at Dharmshala in Sessions Case No. 14-K/VII-1998 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred to as the Act).

The prosecution story, in brief, is that on 15.10.1997 PW-8, Inspector Prem Singh, was present at Tehsil Chowk, Kangra. He met Dy. Superintendent of Police PW-4 Bashir Khan at the Chowk. They received secret information that accused Om Prakash deals in charas. Thereafter, Rukka in this behalf was sent to Police Station Kangra for registration of the case. Two independent witnesses Ashok Kumar and Ram Gopal were associated with the raiding party. Then the raiding party including PW-4 Dy. S.P. went to the shop of Om Prakash, who was present there. After giving their personal search to him they first obtained his consent as to whether he wanted to be searched, vide memo Ext.PW-1/A. Thereafter he consented to be searched and then the police officials went inside the shop of Om Prakash. During the search, in the hearth meant for making soap, one brick was found loose. This brick was removed and in the vacant space two polythene bags were found. One bag contained charas and the other bag contained small weighing scales. The charas was weighed and found to be 285 grams. A sample of 25 grams was drawn out of the charas. The sample as well as the bulk charas were separately sealed with seal ''T''. The weighing measures were also separately sealed. The sample seal impression was obtained and seal handed over to Ram Gopal. Site plan Ext.PW-8/A was prepared by Inspector Prem Singh on the spot. The accused was arrested after informing him of the grounds of arrest vide memo Ext.PW-1/C. Thereafter, PW-8 deposited the case property with the MHC Police Station Kangra. The MHC in turn sent the sample to Neemuch alongwith docket and copy of F.I.R. After receipt of the report of the Chemical Examiner Ext.PX wherein it was opined that the sample was of charas, a challan was filed in the Court and the accused was charged with having committed the aforesaid offence.

The learned trial Court acquitted the accused on various grounds including the grounds that there was non-compliance of Section 50 and Section 42 of the Act. Section 50 of the Act is not at all applicable to the facts of the present case because this is not a case of personal search of the accused. Similarly, Section 42 is also not applicable. No doubt, this is a case of prior information but one of the officials who raided the premises was a Gazetted Officer being a Dy. S.P. and therefore, the procedure required to be followed was that u/s 41(2) and not u/s 42. Undoubtedly, the procedure u/s 41(2) has been followed since the information was recorded in writing and Rukka in this behalf was sent to the Police Station concerned.

Having held so, the next question which arises is whether the prosecution has proved beyond reasonable doubt that the offending substance was recovered from the conscious physical possession of the accused. It has come in evidence that the premises in question consists of three rooms, one of which is used as a residence, the other as an area to prepare the soap and the third as a shop. It has also come in evidence that there were a number of persons employed by accused Om Prakash, who also worked in this factory. This fact is admitted by PW-4 and PW-8. Therefore, it cannot be said that it was the accused alone who could have knowledge of where the charas was kept. This may have been kept by any one of his employees. In a case like the present one, it was incumbent upon the prosecution to prove that the premises in question were exclusively owned or possessed by the accused. This has not been done and in fact there is a suggestion that the business in question was a joint family business. PW-3 has admitted that the premises were owned by his father but according to him the premises were given by his father to his younger brother (the accused) to run the soap factory. In cross-examination he stated that the premises were owned by his mother. This witness also admitted that the servants of the accused stayed in the residential room which forms part of the premises in which the factory was being run. Therefore, the prosecution has miserably failed to prove that it was the accused alone who was in possession of the premises.

In addition thereto, the independent witnesses have not at all supported the prosecution version and according to them nothing was recovered in their presence.

Though we have held that Section 50 of the NDPS Act is not applicable, one reason to doubt the prosecution version is that according to memo Ext.PW-1/A whereby the accused was given information that his factory was to be searched, one of the witnesses mentioned in memo Ext.PW-1/A is Om Prakash S/o Kashmiri Lal, Up Pradhan, Gram Panchayat Choti Haler. However, the signatures on the memo are not of Om Prakash but of one Ashok Kumar. This Om Prakash was never examined in Court and Ashok Kumar was examined. Both Ram Gopal and Ashok Kumar did not support the prosecution story at all and according to them their signatures were obtained in the Police Station. No proper explanation has been given by the prosecution as to why the name of the witness was wrongly mentioned in this memo.

According to the Investigating Officer, PW-8, on the same day i.e. 15.10.1997 he had deposited the case property with the MHC. PW-5 Head Constable Sita Devi had also deposed that the case property i.e. 3 sealed parcels were deposited with her by PW-8. She does not state that any specimen seal impression or docket was deposited with her. According to her one sealed parcel was sent by her through constable Hoshiar Singh to Neemuch for chemical examination. In cross-examination she admitted that FSL form was not deposited. She did not say a word whether she had sent any form or specimen seal impression alongwith constable Hoshiar Singh, PW-7. Therefore, it is not clear how the specimen seal impression was compared by the chemical examiner.

In view of the above discussion, though we have not agreed with the learned trial Court on the question of applicability of Sections 42 and 50, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.