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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma and P.S. Rana, JJ.
State of Himachal Pradesh - Appellant
Versus
Tarsem Singh - Respondent
Cr. Appeal No. 628/2015
Decided on: 7.12.2015
Narcotic Drugs - Acquittal - Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 42 (2) of the Act
Fact of the Case:
The prosecution alleged that the accused was dealing in contraband and a raid was conducted resulting in the recovery of poppy husk from the accused's cowshed. However, the witnesses' testimonies and evidence failed to prove exclusive possession of the cowshed by the accused.
Finding of the Court:
The court found that the prosecution failed to establish exclusive possession of the cowshed by the accused, and the recovery of the contraband was not sufficient to prove guilt.
Issues: The key issue was whether the accused was in exclusive possession of the cowshed from which the contraband was recovered.
Ratio Decidendi: The court relied on the interpretation of Section 42 (2) of the Act and the requirement to prove exclusive possession of the contraband by the accused.
Final Decision: The appeal was dismissed, and the accused was acquitted due to the failure of the prosecution to prove exclusive possession of the contraband by the accused.
Rajiv Sharma, J.
The present appeal is instituted against Judgment dated 19.2.2015, rendered by learned Special Judge, Solan, District Solan, HP camp at Nalagarh in Session Trail No. 7-NL/7 of 2010, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for commission of offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake) has been acquitted.
2. Case of the prosecution in a nutshell is that a police party comprising of ASI Kalyan Singh (PW-16), ASI Bahadur Singh (PW-4), HC Kamal Nain (PW-12), HHC Roop Singh, C. Ashok Kumar, Constable Desh Raj (PW-14) and Constable Sher Singh (PW-6) were present at Malku Majra on patrolling duty at about 11 am, when a secret information was received that the accused was dealing in contraband and in case search of the house of accused is conducted then huge quantity of contraband could be recovered. Reasons of belief were recorded in Ext. PW-6/A under Section 42 (2) of the Act. These were reduced into writing by ASI Kalyan Singh PW-16, which was forwarded to the Superintendent of Police Baddi through Constable Sher Singh. A raiding party was constituted in which Jeet Ram (PW-1) and Lajja Ram (PW-2) were associated and all the members of the raiding party went towards the house of accused in village Malku Majra. Accused was present in the house. His consent for search was obtained upon Ext. PW-1/A. Thereafter search of the house of the accused was conducted, however, nothing incriminating was recovered. Search of cowshed of the accused was undertaken and a white coloured plastic sack was recovered which on opening was found to be containing poppy husk. Constable Desh Raj PW-4 was deputed to bring weight and scale from the shop of one Shadi Khan PW-3. The contraband weighed 15 kgs. Whole of the contraband was put back in the plastic sack and sealed with seal impression ‘A’. Specimen of seal used was taken separately and seal impression was also affixed over the NCB form Ext. PW-15/A. Rukka Ext. PW-7/A was prepared and forwarded to Police Station Baddi through Constable Desh Raj whereupon FIR Ext. PW-7/B was registered at Police Station Baddi. The case property alongwith sample seal were produced before Inspector Liaq Ram PW-15, Additional SHO, Police Station Baddi, who had resealed the plastic sack with seal impression ‘C’. Relevant columns of NCB form were filled in by Liaq Ram and impression of seal Ext. PW-15/B was taken separately. Case property was deposited alongwith sample seal and NCB form in the Malkhana with HHC Achhar Singh PW-7, who made entry in the Malkhana register. Case propety was sent to FSL Junga, through Constable Bahadur Singh PW-8. He deposited the same with FSL Junga. The chemical examiner report is Ext. PW-16/F. Special Report is Ext. PW-5/A.
3. Prosecution has examined as many as 17 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. According to him, he was falsely implicated. He was acquitted on 19.2.2015. Hence, this appeal.
4. Mr. V.S. Chauhan, Additional Advocate General, has vehemently argued that the prosecution has duly proved its case against the accused.
5. We have heard the learned counsel for the appellant and also gone through the record carefully.
6. Case of the prosecution, in a nutshell, is that on a secret information on 28.4.2010, , at about 11 am, ASI Kalyan Singh PW-16 alongwith other police officials went to the house of accused at Malku Majra. Jeet Ram PW-1 and Lajja Ram, PW-2 met them on the way. They were associated in the raiding party. They went to the house of the accused. Accused was present. No incriminating material was found in the house of the accused. However, they went to the cowshed of the accused adjacent to the house of the accused. Poppy husk was recovered from the cowshed. It weighed 15 kgs. Raid was conducted on the basis of a secret in
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