JUDGMENT
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence passed by Special Judge, Guna in Special Sessions Trial No. 2/99, dated 21-7-2000, the appellants have knocked the door of this Court by preferring an appeal under Section 374(2) of Code of Criminal Procedure, 1973.
2. In brief, the case of prosecution is that on 30-4-99 at 13.00 hours, Shri S.R. Pawar, Sub-Inspector serving in the office of Narcotic Commissioner, Gwalior, received information from the informant that two persons namely Kalya and Chintu are carrying illegal business of opium at Dehari Dhaba (restaurant) at Ruthial – Guna Road and if on 1-5-99 in between 7.30 and 8.30 in the morning the raid is made, opium may be seized. On the basis of this information, the Sub-Inspector recorded the relevant entry under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’) and forwarded the same to the higher officer.
3. On 1-5-1999, the party of Central Narcotic Bureau, Gwalior, reached at the spot at 8 in the morning. Two persons namely Ashok Kumar Pawar and Raj Kumar Rathore were found sitting at the Dhaba. They were informed that an information has been received that opium has been kept in the Dhaba and as such the Dhaba has to be searched. Thereafter, Sub-Inspector Paliwal, on the basis of information received by a boy who was preparing the tea, entered in the room, which was located on the back side of the Dhaba. They found two persons running away from the room. These two persons were caught and they named themselves to be Surendra Singh and Chintu, i.e., the appellants. Sub-Inspector Paliwal gave notice to them under Section 50 of the Act and they were informed in regard to their right to be searched either before Magistrate or Gazetted Officer. They were also informed that Mr. D. Banerji, a Gazetted Officer, is present at the spot and they may allow their search in his presence. The appellants gave their consent to be searched before the said D. Banerji, Gazetted Officer.
4. Thereafter, it is said that both the Sub Inspectors Paliwal and Pawar submitted themselves for their search and the accused persons were searched in presence of Gazetted Officer Shri D. Banerji. Thereafter, the room was searched in which a green polythene bag was found, which was opened by Sub-Inspector Pawar and he found some black substance in it which was found to be opium. The accused persons also admitted the said substance to be opium and had admitted that the contraband substance belong to them.
5. The seized opium was weighed and found to be 2.050 kgms including the weight of polythene, out of which two packets of 25 gms each were prepared for sample and were sealed. The remaining part of the opium was separately sealed. The other articles were also seized. The accused persons were arrested for the offences punishable under Section 8/18 of the Act and the sample of the seized opium was sent for chemical examination and a report thereof was obtained and the contraband article, which was seized, was found to be the opium within the meaning of the act.
6. After completion of the investigation, a charge-sheet was submitted before the Special Court. The learned Special Judge, after perusing the charge-sheet framed charges punishable under Section 8/18 of the Act against the appellants. Needless to say both the appellants abjured their guilt and pleaded complete innocence. Their defence is of maladroit implication.
7. In order to prove the charges, the prosecution examined as many as seven witnesses and placed Ex. P-1 to Ex. P-14, the documents on record.
8. The learned Special Judge after perusing and marshalling the evidence came to the conclusion that appellants did commit the offence for which they were charged and eventually they were convicted and were sentenced to suffer rigorous imprisonment of 10 years each and fine of Rs. 1,00,000/-, each, in default further imprisonment of two years each. Hence, this appeal.
9. In this appeal, Shri Arun Barua, learned Counsel appearing for the appellants submitted that if the case of the prosecution is accepted in its entirety, no offence is made out against the appellants. According to him, the room from which the contraband article opium was seized was not of appellants nor they were possessing it. The owner of the Dhaba and the room is somebody else and the prosecution failed to show that who is the owner of the Dhaba. It has also been putforth by him that as per the prosecution’s own case, the contraband article was not recovered from the person of the accused and it was lying inside the room of which according to prosecution’s own case was not of appellants and they were not possessing it. It has been proponed by the learned Counsel that in total 2.050 kgms opium was seized out of which two packets of 25 gms each were prepared separately and the rest quantity was sealed in a separate packet. But, according to Margret X-trose (P.W. 1), who at the relevant point of time was a Constable and was the incharge Malkhana, one packet of 2.050 kgms opium and two packets of opium 25 gms. each, were deposited and, therefore, this raises a serious doubt because if two packets of 25 gms each were separately prepared then the weight of the seized opium should be 2 kg. Lastly, he has submitted that the officers who searched the accused persons did not offer themselves for their search and, therefore, there is non- compliance of the mandatory provision.
10. Per contra, Shri Mukund Bharadwaj, learned Counsel appearing for the respondent argued in support of the impugned judgment.
11. After having heard the learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
12. As per the case of the prosecution, it is said that the contraband article opium was seized from a room behind the Dhaba which is also a part of the said Dhaba. There is no evidence that the said room which is the part of Dhaba belong to which person and who is possessing it. It is not the case of prosecution that the said Dhaba and the room is owned and possessed by the accused persons. Even if it is assumed that the appellants were present inside the said room and they came out and tried to run away, it would not constitute any offence because the room in which the contraband article opium was seized was not being possessed by the appellants. The prosecution evidence is totally lacking in this regard that who is the owner of the Dhaba and the room and who was possessing it. According to me, this is the crucial question which is to be decided because unless and until there is positive evidence that the appellants were possessing the contraband article, they can not be convicted under Section 8 of the Act. Since the appellants were not possessing the room in which the packet of opium was lying, as per prosecution’s own case, therefore, it can not be said that the packet of opium which was lying in the room was in possession of appellants. It may be in the possession of the person who was possessing the Dhaba and the room. But the prosecution evidence is totally silent on this point and, therefore, when contraband article is not found from the possession of appellants, their conviction can not be sustained in the eyes of law.
13. As per the case of the prosecution from the room 2.050 kgs of opium was seized, out of which two packets of 25 gms each were prepared. This would mean that the remaining part must be 2 kg. However, according to the statement of Margret X-trose (P.W. 1), who is a Constable in the Narcotic Department and was incharge of the Malkhana, he received one packet containing 2.050 kgs opium and two separate packets of 25 gms of opium. He has further stated that he did not take out 25-25 gms of opium out of the packet of 2.050 kgms. According to him two packets of 25 gms each were already prepared and were received by him separately, all these three packets were deposited by him in the Malkhana. If the evidence of this witness is considered in proper perspective, it raises a serious doubt in respect to the seizure of the contraband article. Because according to the prosecution 2.050 kgms of opium was seized out of which 50 gms opium was taken out from the bulk of 2.050 kgms and, therefore, the weight of the remaining bulk should be 2 kgs. But, the evidence of P.W. 1 is otherwise. Looking to this serious disparity, it poses a big question mark on the truthfulness of the case of the prosecution and it raises a serious doubt. It is well settled in law that the suspicion however strong may be, it can not take place of the strict proof and the benefit would go to the accused persons. It has come in the evidence of witness of seizure Ashok Pawar (P.W. 2) that the departmental officers, who searched the appellants did not offer them for the search. In the case of Gurcharan Singh v. State of M.P., 1992 Cr.LR 111 (MP), it has been held by this Court if the person who is searching the accused is required to offer himself for his personal search before entering in the premises. In the present case also the officers of the Narcotic Department namely Sanjay Paliwal and S.R. Pawar did not offer for their search and, therefore, on this ground also the conviction of the appellants can not be sustained.
14. Though, there is positive evidence of Sanjay Paliwal (P.W. 3) and S.R. Pawar (P.W. 4) both A.S.I. of the Narcotic Department, accusing the appellants but they have specifically stated that they found one green coloured polythene bag lying in the room in which they found the contraband article opium. But, merely because the contraband article was lying in the said room, it can not be said that it was being possessed by the appellants. This point in detail has been discussed by me hereinabove. The departmental witnesses also says that in total 2.050 kgs of the opium was seized out of which 50 gms was taken out and 2 packets of 25 gms were prepared and, thereafter, all these three packets were sealed separately but the evidence of Margret X-trose (P.W. 1) is otherwise, which I have discussed in detail hereinabove. Similar type of the evidence is of P. Sinha (P.W. 5), Inspector of the Narcotic Department, D. Banerji (P.W. 6) who was S.P. in the said department and T. Bhattacharya (P.W. 7) who was serving on the post of Inspector.
14. Thus, on the basis of aforesaid premised reasons, the judgment of conviction of appellants can not be sustained in the eyes of law and the same is hereby set aside.
15. Resultantly, the appeal succeeds and is hereby allowed. The conviction of appellants is hereby set aside. They are in jail. They be set at liberty forthwith if not required in any other offence.
