Om Prakash @ Baba vs State Of Rajasthan

O R D E R

The appellant was convicted under Sections 8/18,

8/20(B)(ii) and 8/20(B)(i) of the Narcotic Drugs

Psychotropic Substances Act and sentenced to 10 years R.I.

and fine of Rs.1,00,000/- and in default thereof to undergo

R.I. For two years. He is before us by way of special

leave.

The prosecution story is as under:

On 11th September, 1999 at about 7.00 a.m., PW.11 Ram Chander, SHO, Kotwali Fatehpur and several other police

officials raided the house allegedly belonging to the

appellant to arrest Pankaj his son in some criminal matter,

and as they approached his residence, they saw the

appellant who was present attempting to run away. He was

however apprehended and the house entered and searched and

a huge quantity of Charas, opium and Gaanja were recovered

from under a mattress in a newly constructed room. The

S.H.O. sent information to the Superintendent of police,

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Seekar and completed the other formalities relating to the search & seizure. Several independent witnesses were also

called to countersign the search memos. The contraband

recovered was sent to the Malkhana and thereafter for

analysis to the Laboratory and a report was duly received.

On completion of the investigation the appellant was

charged for the offences above-mentioned and as he pleaded

innocence, he was brought to trial.

The prosecution in support of its case examined 14

witnesses in all; the primary ones being PW.3 and 13,

said to be independent witnesses to the search and

seizure, PW.12 an Engineer from the Department of

Telecommunication and PW.14 from the Electricity Department

to identify the house as belonging to the appellant, and

the investigating officer, PW.11 Ram Chander. The trial

Court recorded a finding that the ownership and possession

of the contraband in question had been proved beyond doubt, in the light of the fact that the witnesses had

deposed that the recovery had been made from the house

belonging to and in possession of the appellant and that

the samples of the contraband had been properly sealed and

kept in proper custody and having held as above, convicted

and sentenced the appellant. An appeal taken to the High

Court by the appellant did not succeed. The matter is now

before us by special leave.

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At the very outset Mr. Bhatti, the learned counsel

for the appellant, has pointed out that the appellant had

been arrested on 11th September, 1999 and as he had not been bailed out at any stage, he had almost completed the

period of his sentence but as a fine of Rs.1,00,000/- had

also been imposed the matter was still alive and required

consideration. He has accordingly submitted that the main

issue that would arise in this Court would be as to whether

the contraband was in possession of the appellant, and if a

doubt could be created on this important aspect, the

prosecution story must fail. He has further pointed out

that the trial Court as well as the High Court were

conscious of this difficulty and had bye-passed the

evidence in an unacceptable manner apparently for the

reason that the recovery pertained to a huge quantity of

contraband material. He has also relied on Mohd. Alam Khan

vs. Narcotic Control bureau and another AIR (1996) SC 3033

to contend that the finding on the question of possession

and ownership was a sine qua non before an accused could be convicted in the case of a recovery made from a house which

was occupied by several persons other than the accused.

Mr. Manish Singhvi, the learned counsel for the

respondent-state has, however, supported the judgment of

the courts below and has further pointed out that the site

plan and the evidence of PW.3 when appraised together led

to the conclusin, that the house from which the contraband

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had been seized was not only in the possession of the

appellant but also in his ownership and as the police party

had been looking for the appellant's son Pankaj a

presumption could safely be drawn that the house did belong

to him.

We have considered the arguments advanced by the

learned counsel very carefully. We first go to the

evidence of PW.3, the primary witness, with regard to the

ownership and possession of the property. This witness

claimed to have been present when the contraband had been

recovered. He, however, very categorically stated that the

appellant did not reside at the house in question as it was

in possession of one Durga Bhanji and that she did not have

any association with the appellant. He reiterated the same

observation later in his evidence and then further

testified that the appellant's house was infact some

distance away from the house of Durga Bhanji. Going still

further he deposed that appellant's brothers five in all, ,

their children and parents all lived in the same house. It

is also clear that despite this statement which goes

completely against the prosecution story, PW.3 was not declared hostile. The prosecution has also relied on the

evidence of PW.12 Shiv Baksh who was a Sub-Divisional

Engineer in the Telecom Department posted in Seekar to

show that telephone number 20591 had been installed in the

house belonging to the appellant. In the cross-examination,

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however, he stated that he was unaware of the exact

location of the house where the telephone had been

installed and that he had not made a physical verification

before the installation and he was unaware of the location

of the house and was not in a position to identify even the

neighbourhood. The prosecution has further relied on the

evidence of PW.14 Rajendra, an Assistant Engineer with the Electricity Department to prove the installation of the

Electricity connection in the house. In his cross-

examination this witness deposed that though he had made

some checks as to the location of the house he had done so

without inspecting the house and only on the basis of the

record. In addition to this the prosecution has relied

upon several witnesses including PW.13 Rajesh to prove the

place of recovery. These statements are also unclear and do

not advance the prosecution case more particularly as

Rajesh was declared hostile as he did not support the

prosecution.

A bare perusal of the evidence aforementioned would

reveal that the ownership and possession of the house and

the place of recovery is uncertain. As a matter of fact

PW.3 has categorically stated that the house from where the

recovery had been made belonged to one Durga Bhanji and not to the appellant. Even assuming for a moment that the

house did belong to the appellant and was in his

possession, the prosecution was further required to show

the appellant had exclusive possession of the contraband as

a very large number of persons including the

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appellant and five of his brothers, their children and

their parents were living therein. Admittedly, there is no

evidence as to the appellants exclusive possession. In this

situation we find that the judgment cited by the learned

counsel that is Mohd. A.Khan's case fully supports the plea

on behalf of the appellant, we observe that in addition to

the ocular evidence, the prosecution had also put on record

a document pertaining to the ownership of the house, but

despite this, the Court held as under:

"The prosecution did not bother to produce any independent evidence to establish

that the appellant was the owner of the flat in question by producing documents from concerned Registrar's office or by examining the neighbours. No statement has been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent

witnesses attested the panchnama. Only one of them was examined as P.W.5 who did not support the prosecution version and therefore was treated as hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the High Court."

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To our mind the afore-quoted observations clearly

support Mr. Bhatti's argument. We find that there is no

evidence on record to prove the appellant's ownership and

possession of the premises and the contraband in question.

The appeal is accordingly allowed, the judgments of

the Courts below are set aside and the appellant acquitted.

He is said to be in custody. He is directed to be

released forthwith.

.................J. (HARJIT SINGH BEDI) .................J. (AFTAB ALAM) New Delhi, August 25, 2009.