The State of H.P. vs Gian Singh

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 and order dated 30.11.1996, passed by the learned Additional Sessions Judge, Shimla, District Shimla, in Sessions Trial No. 18-S/7 of 1996, acquitting the alleged accused u/s 18 of the Narcotic Drugs and Psychotropic Substances Act (in short ''NDPS Act'').

In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. According to the prosecution, on 27.03.1996, at about 2 P.M., PW-14 Madan Singh, H.C., P.P. Nerwa, in connection with routine patrol duty, was present in the area of revenue estate Thangar within the jurisdiction of Police Post, Nerwa. PW-6 Kamla Nand Constable had been accompanying PW-14 at the time of patrol duty. The police had received secret information against the accused person. The accused person had been cultivating poppy plants in his field in revenue estate Thangar. On receipt of this information, PW-14 Madan Singh H.C. had formed a raiding party. PW-14 had associated PW-1 Sat Pal, Patwari Settlement and PW-12 Prem Chand, Field Kanungo Settlement, in the raiding party. In presence of PWs 1, 6 and 12, the police had proceeded to raid and search the field of the accused person in revenue estate Thangar. The police had found cultivation of poppy plants in field No. 919 of the accused person. The police had collected 608 poppy plants from field No. 919 of the accused person. Five poppy plants had been taken as sample. Sample poppy plants and the rest of the poppy plants had been separately sealed in two packets with seal ''M'' and had been taken into possession vide recovery memo, Ex. PW-1/B. The sample poppy plants had been got examined from the Chemical Examiner, who, vide report, Ex. PX, had found the sample examined by him containing poppy plants. Accordingly, case u/s 18 of the NDPS Act was registered against the accused-Respondent.

In order to prove its case prosecution examined as many as fourteen witnesses, whereas, accused in his statement u/s 313 of Code of Criminal Procedure denied the prosecution case.

PW-1 Sat Pal, Patwari Settlement, PW-6 Kamla Nand Constable, PW-12 Prem Chand, Field Kanungo Settlement and PW-14 Madan Singh had supported the prosecution case. The police had recovered poppy plants from the field No. 919 of the accused person vide recovery memo, Ex. PW-1/B. PW-1 had prepared field map, Ex. PW-1/A of Khasra No. 919. Khasra No. 919 measured 2 bigha 13 biswas. The accused person was found to have been cultivating poppy plants in land measuring 10 biswa of khasra No. 919. Ex. PW-12/A is jamabandi for the year 1991-92 and Ex. PW-12/B is Khasra Girdwari of khasra No. 919 for the year from 31.10.1992 to 23.9.1995. Khasra No. 919 had been recorded under the joint ownership and possession of so many proprietors including the accused person. PW-14 had prepared special report, Ex. PW-6/C. PW-14 had arrested the accused person having apprised him of the grounds of arrest vide document, Ex. PW-12/C. PW-14 had prepared rough sketch map, Ex. PW-14/A, of the field of the accused person. PW-14 had prepared report, Ex. PW-6/A, FIR, Ex. PW-6/B, had been registered on the basis of report, Ex. PW-6/A, against the accused person.

PW-2 Bhag Mal, PW-3 Nand Ram, PW-4 Amar Singh, PW-5 Shyam Singh and PW-13 Sumitra had been examined to establish the exclusive possession of the accused person, of the field from where recovery had been made. At the stage of evidence, PWs 2, 3, 4, 5 and 13 had refused to support the prosecution case. PW-7 Dalip Singh, PW-9 Ram Lal andPW-11 Gurdev Singh, police officials, at various stages of investigation, had handled the case property. PW-8 Govind Singh Dy. S.P. had received Special Report, Ex. PW-6/B, on 28.3.1996. PW-11 Baldev Singh S.I./S.H.O. had prepared final report u/s 173 Code of Criminal Procedure and had presented the same in the Court.

On examining the prosecution witnesses and the material on record, we notice that the testimony of PW-12 Prem Chand, Settlement Field Kanungo, indicate that revenue estate Thangar was taken for settlement operation and field to field measurement was carried for settlement purpose. PW-12 has further stated in cross-examination that at the time of settlement operation proprietors were found to have cultivated poppy plants in their holdings. As such, on 15.3.1996 PW-1 Satpal, Patwari Settlement, had reported against cultivation of poppy plants by the proprietors to PW-12. PW-12 has stated that he has forwarded the complaint of PW-1 to Settlement Naib Tehsildar. In view of such facts and circumstances, it was too late in the day for the prosecution to state that the police had received secret information of cultivation of poppy plants by the accused on 27.3.1996.

In our considered view, non examination of independent witnesses and non-official witnesses have rendered the prosecution case doubtful. On an analysis of the testimonies of PW-1 and PW-12, it appears that khasra No. 919 was owned and possessed by large number of proprietors including the accused and the accused was not the exclusive owners and in possession of khasra No. 919. In jamabandi, Ex. PW-12/A, Khasra No. 919 was recorded under the joint ownership and possession of so many proprietors. The entries in jamabandi for the year 1991-92 had been repeated in Khasra Girdwari up to 23.9.1995.

PW-2 Bhag Mal, PW-3 Nand Ram, PW-4 Amar Singh, PW-5 Shyam Singh and PW-13 Sumitra have, however, in their statements not supported the prosecution case and despite cross-examination of these witnesses prosecution could not derive any substantial material in support of the prosecution case.

PW-1, PW-6, PW-12 and PW-14 were said to be keeping no information about the exclusive possession of the field in question by the accused, as these witnesses had not seen the accused cultivating poppy plants in the field, comprising Khasra No. 919.

Revenue Officials, Administrative Officials and the Police Officials could not bring anything, on the basis of which, it could be said that poppy plants were being cultivated by the accused from the field in question and the same was in exclusive possession of the accused. In absence of such conclusive evidence, the learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt and has also failed to bring home the guilt against the accused.

In similar circumstances, the same combined land was also raided on 27.03.1996 and one Bir Singh, accused-Respondent, was also allegedly held guilt u/s 18 of the NDPS Act and he was tried by the learned Sessions Judge, Shimla, in Sessions Trial No. 22-S/7 of 1996 and was given benefit of doubt vide judgment dated 17.10.1996. In Criminal Appeal No. 154 of 1997, titled State of Himachal Pradesh v. Bir Singh, preferred by the State Government, this Court while affirming the decision of the learned Sessions Judge has also acquitted the accused-Respondent.

On analysis of the prosecution witness and material on record and having considered the apparent contradictions and improbabilities, we are of the considered view that the learned Additional Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt against the accused-Respondent. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed.