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  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.