SHARMA, J. - (1.) THE appellant was the accused on the file of learned Special Judge, NDPS Case, Chittorgarh bearing case No. 10/98. Learned Special Judge vide judgment dated March 14, 2000 convicted and sentenced the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short `ndps' Act) to suffer R. I. for 10 years and a fine of Rs. 1,00,000/- and in default to further suffer R. I. for one year.
(2.) IT is the prosecution case that on November 21, 1997, a search was conducted by the Narcotic Department headed by one Madanlal Meena, Superintendent, Central narcotics Bureau, Jhalawar at the residential premises allegedly belonging to the appellant at about 6. 30 A. M. Upon search, opium weighing 3 Kg. 200 gms. including the weight of Degchi was recovered contained in a Degchi covered by a white plastic cloth. Necessary memos were drawn. Appellant was arrested and after usual investigation, charge-sheet was filed and in-due course, the case came up for trial before learned Special Judge, NDPS Cases, Chittorgarh. Charge under Section 8/18 of the NDPS Cases, Chittorgarh. Charge under Section 8/18 of the NDPS Act was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case, examined as many as 8 witnesses and got exhibited 16 documents. On hearing the final submissions, learned Special Judge, NDPS Cases convicted and sentenced the appellant as indicated herein above. Only argument advanced before me by learned counsel for the appellant is that the alleged recovery cannot be said to be from within the actual, conscious and exclusive possession of the appellant, since, from the prosecution case itself, the house in question belongs jointly to the brothers of appellant namely shanti Das and Dalu Das. It is also contended that the room from where opium was recovered is the bed room of the appellant's marri ed son Bheru Das and thus, the appellant could not be said to be in possession much less exclusive possession of the said room so as to fasten the liability of alleged contraband upon the appellant. Specially, as per the prosecution case itself, the room belonging to appellant does not have any doors. Reliance is placed on Mohd. Alam Khan vs. Narcotics Control Bureau Another (1 ). Per contra, learned Additional standing counsel for UOI urged that the statement of appellant under Section 67 of NDPS Act was recorded wherein the appellant admitted that he was in conscious possession of the opium. In view of the statement Ex. P- 16 recorded under Section 67 of the NDPS Act, the prosecution has established the charge under Section 8/18 of the NDPS Act. I have pondered over the rival submissions and scanned the material on record. Undeniably, the house from where the opium got recovered, jointly owned by appellant and his two brothers Shanti Das and Kalu Das. Prem Narayan P. W. 7 who headed the search party, admitted in the cross examination that the recovered opium belonged to the Patta issued to Kalu Das. Madan Lal Meena (P. W. 8), who was also a member of the search party stated in the cross-examination that in the course of investigation, this fact came to his knowledge that opium belonged to the Patta of Kalu Das. It is also borne out from the record that the room from where the opium got recovered did not have any doors and as per the testimony of prem Narayan (P. W. 7), Bheru Das son of the appellant and his wife resided in the said room. Girdhari Lal (P. W. 2) and Kalyan Singh (P. W. 3) who were associated as Motbirs of the recovery, did not support the prosecution story and were declared hostile. No other independent witness from the vicinity of house in question got examined by the prosecution to show that the room from where recovery was effected, was in exclusive possession of appellant.
(3.) THEIR Lordships of the Hon'ble Supreme Court in the case of Mohd. Alam Khan vs. Narcotics Control Bureau & Another (supra) indicated para 9 which reads 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. 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. " In para No. 11 of the said judgment, their Lordships observed that. " we hold that the prosecution failed to establish the ownership of the flat in question as belonging to the appellant and consequently the conviction and sentence challenged in this appeal cannot be sustained. " In so far as, the arguments in regard to the statement Ex. P. 16 of appellant is concerned, I find that Nathu Lal (P. W. 1) who was the member of search party, in this cross-examination deposed that it took one hour in drawing the necessary memos and after the arrest of the appellant, his statements were recorded. Although, Prem Narayan (P. W. 7) in his deposition stated that after recording the statement of appellant, his arrest was affected but looking to the fact that the statement of appellant Ex. P-16 did not bear any time, I find myself unable to accept the testimony of Prem Narayan (P. W. 7 ). I see no reason to discard the statement of Nathu Lal (P. W. 1) who categorically deposed that arrest of the appellant was effected first and after taking him in custody, his statements were recorded. In my opinion, no sanctity can be attached to the statements of the appellant which were recorded after his arrest. In view of the infirmities discussed as above, I am of the view that charge under Section 8/18 of the NDPS Act is not established beyond reasonable doubt against the appellant. ;