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2025 Supreme(HP) 592
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Sushil Kukreja, JJ.
State of H.P. - Appellant
Versus
Suresh Kumar - Respondent
Cr. A. No. 349 of 2015
Decided On : 19-03-2025
Advocate Appeared:
For the Appellant : Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. J. S. Guleria, Dy. A.G.
For the Respondent:Mr. N. S. Chandel, Sr. Advocate with Mr. Vinod Kumar Gupta, Advocate.
The court affirmed that recovery from a location accessible to others does not establish exclusive possession necessary for conviction under the NDPS Act.
Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 15(b) and 20(b)(ii)(A) - Acquittal of respondent for drug-related offenses challenged by the State - Prosecution failed to establish conscious possession of contraband due to lack of evidence of exclusive possession and presence of third parties - The trial court's findings were deemed plausible and not perverse. (Paras 14, 22, 25, 27)
(B) Principles of Recovery - Recovery from a location accessible to others does not establish exclusive possession by the accused - The court emphasized the need for clear evidence of possession to uphold charges under the NDPS Act. (Paras 24, 26)
Facts of the case:
The respondent was accused of selling charas and bhukki, with evidence collected during a police raid on his premises. However, the recovery was disputed due to contradictions in witness testimonies and the open nature of the location.
Findings of Court:
The trial court acquitted the respondent based on insufficient evidence of exclusive possession and contradictions in witness statements.
Issues: The main issues included whether the prosecution proved the conscious possession of contraband and the credibility of witness testimonies.
Ratio Decidendi: The court upheld the trial court's decision, stating that the recovery from a shared space does not imply exclusive possession, reinforcing the necessity for clear evidence of possession.
Result: Appeal dismissed.
JUDGMENT :
Tarlok Singh Chauhan, J.
Aggrieved by the acquittal of the respondent for the offence punishable under Sections 15 (b) and 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS Act”), the appellant-State has filed the instant appeal.
2. The case of the prosecution in brief is that on 29.07.2013, ASI Rajinder Singh alongwith HHC Ramesh Kumar, C. Surinder Singh and C. Kuljesh Kumar vide rapat Ext. PW5/A was on routine patrol duty towards Luddar Mahadev, Bhanwin, Sulgwan and at about 2:00 p.m. when reached in village Sulgwan, he received a secret information that respondent Suresh Kumar resident of village Jahu Kalan is engaged in selling of charas and bhukki (poppy straw) to public from his residential house and cattle shed and in case a search is conducted in his residential house and cattle shed, the alleged contraband can be recovered in large quantity.
3. The information was reduced into writing as per the provisions of Section 42(2) of the NDPS Act vide Ext. PW9/A and through C. Surinder Kumar to Dy. S.P. Head Quarter, Hamirpur. Thereafter, ASI Rajinder Singh contacted Chaman Lal, Pardhan and Duni Chand, Ward Member of Gram Panchayat Jahu Kalan on telephone and called them to the house of the respondent.
4. At about 2:30 p.m., when the police party reached on a road near to the house of the respondent, Chaman Lal and Duni Chand met them. On joining them, a raiding party was formed. On reaching the house of the respondent, he was found there and in the presence of the witnesses, was apprised regarding search to be conducted in his residential house and cattle shed. Before conducting search, the personal search of the police party was given to the respondent vide search memo Ext.PW6/B.
5. Therefore, the search of house and cattle shed of respondent in presence of witnesses was conducted. During search of cattle shed one black coloured back pack (pithu bag) was recovered from its upper storey hidden in Toori (wheat straw). The bag on being searched in presence of the witnesses, the same was found containing two (2) polythene bags. On opening one poly bag, it was found containing bhukki and the other poly bag was found containing sticks of charas which were identified as such on the basis of experience and smelling vide memo Ext. PW6/C. These were weighed with electronic weighing scale upon which bhukki was found to be 2 kg, 660 grams and charas was found to be 6 grams 80 miligrams.
6. Therefore, the bhukki alongwith the poly bag was put into said black bag pack and was sealed in a cloth parcel with five seals of impression ‘T’. The poly bag containing charas was packed in separate cloth parcel sealed with three seals of impression ‘T’. NCB-1 form in triplicate as Ext. PW11/B was filled. Facsimile seal impression ‘T’ was taken on the forms. The above parcels Ext. P1 containing back pack Ext. P2 and poly bag containing bhukki Ext. P3 and parcel Ext. P4 containing charas in poly bag Ext. P5 in presence of above witnesses were taken into possession vide memo Ext. PW6/A. The impression of sample seal ‘T’ was taken on separate piece of cloth as Ext. PW11/A and after use was handed over to Chaman Lal.
7. Thereafter, ASI Rajinder Singh scribed rukka Ext.PW11/C and sent the same though HHC Ramesh Kumar to police station Bhoranj on the basis of which FIR Ext. PW11/D was registered and on returning handed over the case file to ASI Rajinder Singh for investigation. He accordingly prepared spot map and recorded statements of witnesses and also took photographs of the contraband as Ext. PW11/J-1 to Ext. PW11/J-H.
8. The respondent was arrested on the spot vide arrest memo Ext. PW11/H. On reaching police station, he handed over the case property alongwith NCB-1 form in triplicate and sample seal ‘T’ for resealing before Inspector/SHO Om Chand. He resealed parcel Ext. P1 with three seals of impression ‘R’ and parcel Ext. P4 with 2 seals of impression ‘R’ vide memo Ext. PW8/A. Facsimile seal impression
