OM PRAKASH @ BABAversusSTATE OF RAJASTHAN

                     [2009] 14 (ADDL.) S.C.R. 289


-"                      OM PRAKASH @ BABA                                 A
                                     v.
                        STATE OF RAJASTHAN
                   (Criminal Appeal No. 575 of 2009)

                           AUGUST 25, 2009
                                                                          B
           [HARJIT SINGH BEDI AND AFTAB ALAM, JJ.]

           Narcotic Drugs and Psychotropic Substances Act, 1985
     - Recovery of huge quantity of charas, opium and ganja from
      a house stated to be in possession of accused - Conviction          C
      by trial court:--- Affirmed by High Court - Held: A bare perusal
      of the evidence 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                 D
     belonged to a different person and not to the accused - Even
     assuming that the house did belong to the accused and was
     in his possession, the prosecution was further required to show
     that the accused had exclusive possession of the contraband,
     as a very large number of persons including the accused and          E
     five of his brothers, their children and their parents were living
     therein - There is no evidence on record to prove accused's
     ownership and exclusive possession of the premises and the
     contraband in question - Judgments of courts below set aside
     - Accused acquitted - Evidence.
                                                                          F
         Mohd. Alam Khan vs. Narcotic Control Bureau and
     another AIR (1996) SC 3033, relied on

                           Case Law Reference:
         AIR (1996) SC 3033          relied on             para 5
                                                                          G

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No. 575 of 2009.

                                   289                                    H
    290     SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.


A       From the Judgment & Order dated 21.8.2006 of the High        ,, _.
    Court of Judicature at Rajasthan at Jaipur Bench in Criminal
    Appeal No. 640 of 2001.

        K.S. Bhati, Aishwarya Bhati, Sweta Rani, Rekha Giri and
    Himanshu Singh for the Appellants.
B                                                                          \
          Dr. Manish Sighvi and Milind Kumar for the Respondent.
                                                                      1,
          The following Order of the Court was delivered by

                              ORDER
c
        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                 I
                                                                    "1'    ~
D 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
E
  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
F Charas, opium and Gaanja were recovered from under a
  mattress in a newly constructed room. The S.H.0. 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
G countersign the search memos. The contraband recovered was          r _,,.
  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
H brought to trial.
     OM PRAKASH@ BABA v. STATE OF RAJASTHAN 291


-"        The prosecution in support of its case examined 14 A

-    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 B
     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    c
     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.                                                D

          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 Obeen 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 E
     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 F
     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 G
     Control bureau and another Al R ( 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.
                                                                        H
         OM PRAKASH@ BABA v. STATE OF RAJASTHAN 293


        Electricity connection in the house. In his cross-examination this   A
'   "   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                  B
        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 C
        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 D
        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 E
        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 F
        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         G
            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
                                                                             H
    294      SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.


A          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
B          appell,ant 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
C   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
D Courts below are set aside and the appellant acquitted. He is
  said to be in custody. He is directed to be released forthwith.

    R.P.                                              Appeal allowed.