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1997 DIGILAW 57 (KER)

Jose v. State

1997-02-10

G.RAJASEKHARAN

body1997
Judgment :- Raj asekharan, J. The accused in SC 97 of 1992 on the file of the Additional Sessions Judge, Thodupuzha, challenges his conviction under S.20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short'the act ) in this appeal. 2. The sentence awarded is four years' rigorous imprisonment and a fine of Rs. 30.000/- with default clause to undergo further rigorous imprisonment for a period of one year. The second accused in the case was acquitted. 3. On 24.9.1991, PW-5 the Sub Inspector of Police, Vellathooval got information that ganja was being cultivated in Panickankudy - Chempakappara and for conducting raid he proceeded to the place together with other police officials. On the way, he got specific information that accused 1 and 2 had cultivated ganja in a property possessed by the first accused. Thereupon, PW. 5 went to the place, detected the ganja cultivation, took two plants for samples and destroyed the rest. For that he prepared Ext. P5 Mahazar and on returning to the police station, he made a suo mote report Ext. P6 and on the basis of Ext. P6, Ext. P6(a) FIR was prepared and a case under S.20(a)(i) of the Act was registered as Crime No. 169/1991 of that police station. 4. In the trial, on the side of prosecution, Exts. P1 to P8 were marked and PWs.1 to 6 examined. Defence Exhibits are Exts. Dl to D3. 5. PWs. 2, 3 and 4 independent witnesses who were examined to prove the possession of land and cultivation of ganja by the accused were turned hostile. Relying on PW. 1, the Village Officer and PW. 5 the Sub Inspector of Police, the trial Court entered the conviction. 6. It was rightly contended by the learned counsel for the appell ant that there is no evidence at all to show the possession of the land where ganja cultivation was found and also that it was the first accused who cultivated the ganja. PW-5 the Sub Inspector in his evidence has given the boundary properties and also the persons who own or possess those properties. They do not support the prosecution case that the land in question was possessed by the accused and the cultivation was effected by accused 1 and 2. On one side of the property extending about 31/2 acres is teak plantation belonging to the Government. They do not support the prosecution case that the land in question was possessed by the accused and the cultivation was effected by accused 1 and 2. On one side of the property extending about 31/2 acres is teak plantation belonging to the Government. The property in question is not registered land and there is no revenue records produced to prove the ownership or possession of the land. On the other hand, the prosecution would maintain that it was Government land and it was unauthorisedly possessed by the first accused. There is nothing to show that for the unauthorised cultivation, any action was taken by the Government. On the other hand, after the alleged detection of the offence, on the requisition of PW-6 the Circle Inspector of Police (Investigating Officer), PW.1 the Village Officer visited the property and made certain enquiries. On the basis of that enquiry with the assistance of Exts. P5 mahazar he gave a certificate Ext. P1 to the effect that the first accused was the person who possesses the land. Basing on that evidence and also the testimony of PW-4 to the effect that on one side of the residential building and property belonging to the first accused there is teak plantation, the trial court reached the conclusion that the property was possessed by the first accused/ appellant and the cultivation was also effected by him. 7. It is common knowledge that a property cannot be identified or located with reference to one boundary alone especially so when the boundary relied on here is teak plantation which has a very large extent. But the trial Court, for the simple reason that PW-4 has stated that on one side of the property of the appellant there is teak plantation, thought that the said evidence supports the prosecution case that the property in question was possessed by the appellant. The trial Court brushed aside Exts. D1 to D3 for the reason that the accused did not prove by production of relevant registers that the property in question was possessed by somebody else. Ext. Dl is a building tax receipt for building No. 622 in Ward No. VI for the period 1988 to 1993. The payment was effected by the first accused. Ext. D2 is the electoral card with respect to House No. 622 in ward No. VI. Ext. Dl is a building tax receipt for building No. 622 in Ward No. VI for the period 1988 to 1993. The payment was effected by the first accused. Ext. D2 is the electoral card with respect to House No. 622 in ward No. VI. The occupants of that building are shown to be the appellant and his wife. The building in the property where ganja cultivation was found is building No. 618 in Ward No. VI. Electoral card relating to that building was produced as Ext. D3, and that would show that the occupants of that building are one Kurian and his family. Kurian is none other than the father of the first accused. When these documents show that during the relevant period the appellant was paying tax for another building and in 1992 he was found residing in that building, it is probable that the appellant had nothing to do with the property where ganja cultivation was found especially so because the building in that property was found to be occupied by Kurian and family. As indicated earlier, Ext. Dl relates to tax payment for Building No. 622 in Ward No. VI for the period 1988 to 1993. According to the lower court that does not cover the date when the offence was detected. The offence was detected on 24.9.1991 which certainly is covered by Ext. Dl for the period 1988-93. The trial court was finding fault with the accused for not producing the building tax register to prove a negative that Building No. 618/VI does not belong to him. 8. The finding of the trial Court that the property in question was possessed by the appellant is totally unsuitable.. Regarding the ganja cultivation also .there is not even an iota of evidence and the trial court assumed that the person in possession must have cultivated ganja. The evidence borne out from Exts. D1 to D3 added by the accused is sufficient for the defence to make out a probable case that the property in question was not possessed by the accused. The degree of proof required of the defence is not the same as that of the prosecution. The evidence borne out from Exts. D1 to D3 added by the accused is sufficient for the defence to make out a probable case that the property in question was not possessed by the accused. The degree of proof required of the defence is not the same as that of the prosecution. The Court below has wrongly cast the burden on the accused and on flimsy materials reached the conclusion that the property where ganja was found was possessed by the appellant and for that reason, ganja cultivation was made by him. On the basis of the evidence tendered by the prosecution, it cannot at all be found that the property in question was possessed by the appellant and the ganja cultivation was effected by him. The finding on the contrary is unsustainable. Hence, it is set aside. 9. For the reason of violation of S.42(1) & (2) of the Act, the trial is vitiated and for that reason also the appellant is entitled to acquittal. The definite case of PW-5 the Sub Inspector of Police who detected the offence is that he got previous information that ganja was being cultivated in a particular area near Panickankudi - Chempakappara and it was to conduct a raid he proceeded to that place. On the way, he got specific information that the accused were cultivating ganja in a particular property, and on that information, PW 5 proceeded to the place and detected the offence. The information got earlier as well as the subsequent information regarding the persons who cultivate ganja had not been recorded as mandated by S.42(1) of the Act. Copies of the information so recorded had also not been forwarded to the superior officer. Thus, there is clear violation of S.42(1) and (2) of the Act. Learned Public Prosecutor was contending that since the information was got on the way when PW-5 was proceeding to conduct the raid there is no violation of S.42(1) and (2). The prosecution has no case that the circumstances were such that information was not possible or practicable to be recorded and a copy forwarded to the superior officer. Learned Public Prosecutor was contending that since the information was got on the way when PW-5 was proceeding to conduct the raid there is no violation of S.42(1) and (2). The prosecution has no case that the circumstances were such that information was not possible or practicable to be recorded and a copy forwarded to the superior officer. Unless it is shown by the prosecution that the circumstances were such that it was not possible or practicable to record the information under S.42(1) and forward a copy to the superior officer under S.42(2), it must be held that there was violation of the said mandatory provisions. It is not that the information regarding cultivation of ganja was got by PW-5 on his way to a certain place. Even when he was in the police station, he get the information that there was ganja cultivation in that particular area. It was pursuant to that information he started from the police station to conduct a raid. That information was also liable to be recorded and a copy forwarded to the superior officer under the provisions of S.42(1) and (2) of the Act. Thus, there is violation of S.42(1) and (2) of the Act and that entitles the appellant (accused) for an acquittal. As mentioned earlier, on the merits of the case also, the prosecution has failed in establishing that the ganja was cultivated by the appellant. 10. There is irregularity and illegality in dealing with the material objects also. Even according to the prosecution, samples taken were packed then and there. But there is no whisper as to whether it was sealed at that time. Subsequently some seal was affixed when that was sent for chemical analysis. The samples taken were lying in the police station for about 21/2 months and there is unexplained delay in forwarding the material object to the court. The explanation offered by PW-5 while in the box that the materials were produced before the Magistrate's Court and they were returned for production before the Sessions Court and that resulted in the delay, is not acceptable since even then the delay of 21/2 months for sending the materials to the Court is too much. For that reason also, the prosecution case has to be rejected. For that reason also, the prosecution case has to be rejected. All these matters on the merits apart, their is violation of S.42(1) and (2) of the Act and that entitles the appellant to be acquitted. In the result, the appeal is allowed and the conviction and sentence are set aside. The appellant is acquitted of the offence under S.20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be released and set at liberty forthwith if he is not required to be detained in connection with any other case.