IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 575 OF 2009
OM PRAKASH @ BABA
.. APPELLANT(S)
vs.
STATE OF RAJASHTAN
.. RESPONDENT(S)
O
RDER
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,
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.
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
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,
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
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.”
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.