Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 782 (MP)

Munna @ Abhay v. State of M. P.

2003-06-26

NARAIN SINGH AZAD

body2003
JUDGMENT Feeling aggrieved by the judgment of conviction and sentence pronounced on 11.11.2002 in Special case No. 18/01 by Special Judge (NDPS) Sagar, wherein each of the appellant is held guilty of having committed the offence punishable u/s 8/20(b)(1) of NDPS Act (herein-after referred to as the Act) and for aforesaid offence each of the appellant is sentenced to undergo RI for a period of 5 years and to pay a fine of Rs. 50,000/-, in default of which each of the appellant is sentenced to further undergo R.I. for a period of one year, the appellants have filed this appeal. According to the prosecution on 6.9.01, sub-inspector Jairam Singh Solanki posted at P.S. Banda Distt. Sagar, received the information that the appellants Munna and Dilip are cultivating Ganja plants. After entering this information in Rojnamcha and informing the senior officers, Jairamsingh Solanki alongwith A.S.I., M.D. Shukla and other members of police force so also the independent witnesses Ramswaroop and Pappu, reached the spot of cultivation, where he seized 61 Ganja plants weighing 1 Kg. and 900 gms. from the possession of appellant Dilip and 81 Ganja plants from the possession of appellant Munna @ Abhay, which weighed 1 Kg. and 800gms. Separate samples weighing 50gms. were drawn and sealed from the quantity of Ganja seized from each of the appellant. The remaining quantity of Ganja was also separately sealed. The appellants were taken to custody and samples were sent to Forensic Science laboratory, Sagar, which returned the positive report. Of course, each of the appellant denied of having committed the charged offence, punishable u/s 8/20(b)(1) of the Act, but the learned trial Court found this offence proved against each of the appellant and sentenced them as stated above. It is vehemently argued on behalf of the appellants that neither the fact of cultivation of Ganja plants by any of the appellant is proved nor could even the fact of possession of any of the appellants, of seized Ganja plants, could be established and hence they deserve to be acquitted. But, Karan (PW 9) whose land is situated on the other bank of Nala, which according to him demarcates his land and the land of appellants, has unambiguously supported the prosecution case by stating that the Ganja plants seized from each of the appellant were cultivated by each of them. But, Karan (PW 9) whose land is situated on the other bank of Nala, which according to him demarcates his land and the land of appellants, has unambiguously supported the prosecution case by stating that the Ganja plants seized from each of the appellant were cultivated by each of them. He has stated to have witnessed the removal and seizure of Ganja plants, at the land belonging to the appellants and has specified the separate areas also, in which each of the appellant, is stated to have cultivated the Ganja plants. Then, of course the individual witnesses of seizure proceedings, namely Ramswaroop (PW 4) and Pappu (PW 5) have not supported the prosecution case on the fact of seizure of 81 and 61 GANJA plants respectively from the possession of Munna @ Abhay and Dilip, but on these facts A.S.I., M.D. Shukla (PW-3) who accompanied Jairamsingh Solanki (PW 7) to the spot of seizure and witnessed it, has supported the statement of Solanki, and their statements are further found supported by seizure memos Exs. P-14 and P-13, prepared in connection with seizure from the appellant/accused Munna @ Abhay and Dilip respectively, so also by Dehati Nalishi recorded at the spot by sub-inspector Jairamsingh Solanki, which is marked as P. 26. It is also noteworthy that in consent memos Exs. P- 7 and P-8, appellants Munna @ Abhay and Dilip respectively have consented for the search of their fields situated in HALKA No. 59 Bamorihar, in connection with Ganja Plants. Further both of them have consented for the aforesaid search by sub-inspector Jairamsingh Solanki vide consent Panchnama Ex. P-9. All these 3 papers are signed by both of the appellants, who are literate, without recording any objection. Since there is nothing to show false implication of accused persons by sub-inspector Jairamsingh so also A.S.I. Matadin and the ownership of the land, on which a person cultivates something, is not required to be proved to establish the fact of possession, therefore even in the absence of production of revenue record, the prosecution is found to have proved the fact of seizure of 81 Ganja plants from the possession of appellant Dilip and 61 Ganja plants from the possession of appellant Munna @ Abhay, on 6.9.2001, on the basis of evidence discussed above. It is stated by Jairamsingh Solanki (PW 7) that on return to police station he recorded FIR Ex. It is stated by Jairamsingh Solanki (PW 7) that on return to police station he recorded FIR Ex. P-27 and deposited the siezed plants at the police station. M.K. Gautam (PW 6), T.I. Banda has stated to have sent the drawn samples of seized Ganja to FSL vide memo of S.P. Sagar which is marked as Ex. P-21, and has further stated to have received the test report EX.P-22. The samples A-1 to A-4 in sealed packets, containing one Ganja plant, leaves, flower, roots of plant and the soil around respectively are seized from the possession of appellant Munna @ Abhay. Similarly sealed packets of aforesaid material marked as B-1 to B-4 are seized from the possession of Dilip which were sent for test, to FSL Sagar. As per test report Ex. P-22 Ganja was noted in sealed packets A-1 to A-3 and B-1 to B-3. Then Cannabis test was found positive in soil contained in A-4 and B-4. Thus, on the basis of aforesaid evidence, the learned Special Judge (NDPS) is found to have committed no error in recording the finding of guilty against each of the appellant for offence punishable u/s 8/20 (b)(1) of the Act, but the punishment imposed is excessive, looking to the quantity, which is proved to have been seized from each of the appellant. Thus, this appeal stands partly allowed while confirming the finding of conviction of each of the appellants, for offence punishable u/s 8/20(b)(1) of NDPS Act, the period of imprisonment imposed on each appellant is reduced to one year and fine to the amount of ten thousands. In the event of default of payment of fine each of the appellant shall further undergo R.I. for a period of six months. Appellant Dilip shall surrender immediately and undergo the remaining part of sentence of imprisonment. His bail bond and personal bond stand cancelled. In case appellant Munna @ Abhay, who has served out the sentence of imprisonment, if not required in any other case, and deposits the amount of fine, he shall be set at liberty forthwith.