Prakash @ Baba Vs. State of Rajasthan  INSC 1487 (25 August 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 575 OF 2009 OM PRAKASH @ BABA ..
O R D E R
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.
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.
prosecution story is as under:
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, -2- 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.
completion of the investigation the appellant was charged for the offences
above-mentioned and as he pleaded innocence, he was brought to trial.
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.
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.
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 -4- 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.
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, -5- 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
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 -6- 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:
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.
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
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.
appeal is accordingly allowed, the judgments of the Courts below are set aside
and the appellant acquitted.
said to be in custody. He is directed to be released forthwith.
.................J. (HARJIT SINGH BEDI)
.................J. (AFTAB ALAM)
August 25, 2009.