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Madhya Pradesh High Court · body

2000 DIGILAW 1306 (MP)

Babu Khan v. State of M. P.

2000-12-06

S.P.SRIVASTAVA

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Short Note Heard the learned counsel for the appellant as well as the learned Deputy Government Advocate representing the respondent-State. Perused the record. The appellant feels aggrieved by his conviction under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the sentence of one year's rigorous imprisonment besides imposition of a fine of Rs. 2,000 in default whereof he has to undergo six month's further rigorous imprisonment, has approached this Court seeking redress praying for the reversal of the impugned order and his acquittal. The facts in brief shorn of details and necessary for disposal of this appeal lie in a narrow compass. The facts found and established on record indicate that the appellant was residing in a Tapra along with his family which Tapra was situate in an agricultural holding, Survey Plot No. 17/2 having an area of 0.105 hectare. On 1.4.1992 at about 15.30 hours in the aforesaid agricultural holding situate in village Rangayee, on the Vidisha-Bhopal road at a distance of about 25 feet from the Tapra of the appellant 16 cannabis plants of the height ranging 1-1/2 to 2 feet were found grown by the appellant, who did the cultivation of vegetables in the aforesaid plot of land. At the time of the raid and the arrest of the appellant it was noticed that the aforesaid 16 cannabis plants were found to have been grown in a kyari (Furrow) and were regularly watered. After due investigation challan was filed. The appellant was charged for having grown in an illegal manner 16 cannabis plants in contravention of section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and liable for punishment under section 20 thereof. The appellant abjured the guilt and pleaded to be innocent. The prosecution examined in support of its version Harishankar as PW 1. He was constable in the Excise Department. Prosecution also examined Halkaiya as PW 2. This witness, however, turned hostile. Ashok Dixit, PW 3, was also examined, who was the District Excise Officer, Vidisha, who had visited the spot where the cannabis plants were found to be grown, in the presence of Sub-Inspector S.B. Khare and two or three other constables including Harishankar Sharma. Ramsewak was examined as PW 4, Arun Shrivastava as PW 5 and Alok Shrivastava as PW 6. S.B. Khare, Sub-Inspector was examined as PW 7. Ramsewak was examined as PW 4, Arun Shrivastava as PW 5 and Alok Shrivastava as PW 6. S.B. Khare, Sub-Inspector was examined as PW 7. He had also reached the spot alongwith the District Excise Officer, after receiving the information in regard to the illegal cultivation of the cannabis plants. Chhedilal was examined as PW 8. He was, however, declared hostile. The trial Court after taking into consideration the evidence on record came to the conclusion that the appellant had been in possession of the agricultural holding, survey Plot No. 17/2 and it was duly established by the prosecution that it was the appellant who had sown 16 cannabis plants and had been tending the same. The trial Court believed the prosecution version in regard to the recovery of cannabis plants and also upheld the prosecution version that plants were in fact cannabis plants as confirmed by the Chemical Examiner vide the report, Ex.P-10. The appellant was found to have contravened the provisions contained in section 8 of the Act and the trial Court convicted the appellant under section 8/20 of the Act and sentenced him to undergo one year's rigorous imprisonment besides imposition of a fine of Rs. 2,000/- providing further that in default of payment of fine by the appellant he had to undergo additional six month's rigorous imprisonment. The provisions contained in section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 prohibit the cultivation of any cannabis plant except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act and the rules and orders made thereunder. In exercise of the powers conferred by first proviso to section 8 of the aforesaid Act the Central Government had specified the 15th May 1989 as the date from which the prohibition against the cultivation of cannabis plant for the production of Ganja was to take effect. The incident, in the present case, had taken place on 1.4.1992 i.e. much after the publication of the aforesaid notification. The height of the cannabis plants was found to be ranging/between 1-1/2 to 2 feet. It is therefore obvious that the cannabis plants had been grown after the publication of the aforesaid notification. It may be noticed that in all 16 cannabis plants had been found grown. The height of the cannabis plants was found to be ranging/between 1-1/2 to 2 feet. It is therefore obvious that the cannabis plants had been grown after the publication of the aforesaid notification. It may be noticed that in all 16 cannabis plants had been found grown. The question, therefore, which had arisen for consideration was as to whether such growing of 16 cannabis plants in an agricultural field having an area of 1.105 hectares could be taken to be an activity falling within the ambit of the expression 'cultivation' as contemplated under section 8(b) of the Act. The expression 'cultivation' signifies ploughing and preparing land for crops and the raising of something that grows from the ground besides grass. This expression has to be taken to have within its ambit the breaking of the soil or ploughing and tilling of the land and sowing seeds by human efforts and watering and tending the growth when the seeds sown sprout and plants appear above the surface of the soil. The evidence led by the prosecution in the case clearly indicate that 16 cannabis plants had been sown in a furrow (Kyari) and proper arrangements had been made for their irrigation and tending so that there may be a proper growth. This indicates that there had been such cultivation of cannabis plants as envisaged under section 8 of the Act. The facts and circumstances as brought on record do not lead to any such inference that these cannabis plants could be taken to have been self grown plants or were not such which had been planted for the production of Ganja. The manner in which the plants had been sown and tended and proper care for their growth was being taken indicate that there was a cultivation of cannabis plants for the purposes of production of Ganja. The learned counsel for the appellant has urged that at the time of the incident the appellant was only about 27 years of age. He has further stated that the appellant has already remained in jail custody for about three months. It is further stated that the amount of Rs. 2,000/- of fine has already been deposited on 10.7.1997. What has been urged is that taking into consideration the facts and circumstances as brought on record while maintaining the conviction the sentence of rigorous imprisonment may be reduced to the period already undergone. It is further stated that the amount of Rs. 2,000/- of fine has already been deposited on 10.7.1997. What has been urged is that taking into consideration the facts and circumstances as brought on record while maintaining the conviction the sentence of rigorous imprisonment may be reduced to the period already undergone. Taking into consideration the age factor, the number of cannabis plants which had been seized and their size and further the fact that the meagre possibility of production of Ganja in near future and the other facts and circumstances as brought on record, I am of the opinion that the interest of justice would be met if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone by him. In the result, this appeal succeeds in part. While maintaining the conviction the sentence of rigorous imprisonment is reduced to the period already undergone. In other respects the impugned order shall remain intact. His bail bonds shall stand discharged.