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2004 DIGILAW 1459 (ALL)

Gajodhar v. Union of India

2004-08-05

GHANSHYAM DASS

body2004
GHASHYAM DASS, J. ( 1 ) BY means of the instant appeal the appellant Gajodhar has challenged the conviction order recorded on 13. 5. 1992 by the then learned Sessions Judge, Barabanki in Sessions Trial No. 413 of 1988, State v. Gajodhar, whereby the accused-appellant Gajodhar has been found guilty for the offence punishable under Section 19 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which shall in brevity hereinafter referred to as the Act and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1. 00 Lac only. ( 2 ) ACCORDING to the prosecution, the accused-appellant is licence holder for cultivation of poppy and to produce opium in village Itauhua Police Station Ram Sanehighat District Barabanki. He is alleged to have extracted 3. 400 Kgs. Poppy from his field in the year 1986-1987 w. e. f. 19. 3. 1987 to 26. 3. 1987 but actually produced before the department 300 grams and thus he is alleged to have embezzled 3. 100 Kgs. poppy. The trial of the accused ended in conviction as mentioned above. ( 3 ) 1 have heard Sri R. K. Dwivedi, Arnicas Curiae appointed by the order of the Court and Sri i. B. Singh learned counsel representing the Union of India. ( 4 ) ON record, I find the testimony of two witnesses only namely Raja Ram Singh Yadav, sub-inspector Narcotics and Bachchoo Lal, the Lambardar, PW 2. No other witness has been examined by the prosecution in this case for the reasons but known to the prosecution. The statement of PW 1 is very short. He stated in the examination-in-chief this much only that he had made preliminary weighment of the produce of accused Gajodhar on 23. 6. 1987 and it was found to be 3. 400 Kgs. He made entry of this weighment in the Lambardar book in his own hand writing and accused Gajodhar made his signatures on the Lambardars book. PW 2 Bachchoo lal, the Lambardar did not support the prosecution at all. He stated in examination-in-chief that accused was licence holder for cultivation of poppy and production of opium. He stated in clear terms that weighment of the opium of the accused-appellant was never made in his presence. PW 2 Bachchoo lal, the Lambardar did not support the prosecution at all. He stated in examination-in-chief that accused was licence holder for cultivation of poppy and production of opium. He stated in clear terms that weighment of the opium of the accused-appellant was never made in his presence. He also stated that accused-appellant extracted opium only for one day and thereafter opium was destroyed by natural calamities and this witness was declared hostile and cross-examined by the prosecution but there is nothing worth in his cross-examination made by the prosecution. ( 5 ) THE cross-examination made to Raja Ram Singh Yadav, PW 1 is also relevant for consideration of totality of evidence on record. He stated in his cross-examination that on Ex. . Ka 1 daily signature of Lambardar regarding extraction of opium on the weighment register are not there. He further stated that neither the signature nor thumb-impression of the accused is there regarding weighment made from 23. 3. 1987 to 26. 3. 1987. He did not make any enquiry from bachchoo La, Lambardar since it was not his duty. ( 6 ) IN support of his contention, learned counsel for the appellant has placed reliance upon a case law Raghubeer v. State of U. P, 2002 (1) JIC 88 (All), contending that there is complete violation of the mandatory provisions of the NDPS Act and the Rules 13, 14 and 15 framed under the Act hence the conviction of the appellant being bad in law is untenable. The Rules 13, 14 and 15 are reproduced here to below : "13. Procedure with regard to preliminary weighment.- (1) The cultivator shall, during the course of harvesting, produce daily before the Lambardar, each days collection of opium from his crop for weighment. (2) The Lambardar shall make arrangement to weigh such opium and make necessary entries in the records to be maintained by him as may be specified by the Narcotics Commissioner in this behalf. (3) The cultivator and the Lambardar shall attest the entries made in such records under their signature/ thumb-impression with date, showing the quantity of opium weighed on a particular day. (4) The proper officer shall conduct check weighment of the opium collected by the cultivators with reference to the entries in the Lambardars record and indicate his finding therein which shall be attested by him and the Lambardar under their signature with date. (4) The proper officer shall conduct check weighment of the opium collected by the cultivators with reference to the entries in the Lambardars record and indicate his finding therein which shall be attested by him and the Lambardar under their signature with date. (5) The variations between the quantity of opium produced by the cultivator indicated in the lambardars record and as found by the proper officer during his check, shall be inquired into by the proper officer in order to ascertain the liability of the cultivator for punishment under Section 19 of the Act. 14. Delivery of opium produced.-All opium, the produce of land cultivated with opium poppy, shall be delivered by the cultivators to the District Opium Officer or any other officer duly authorized in this behalf, by the Narcotics Commissioner at a place as may be specified by such officer. 15. Opium to be weighed, examined and classified.-All opium delivered by the cultivators to the district Opium Officer or any other officer authorized as aforesaid, shall, in the presence of the concerned cultivator or any person authorized by him and the Lambardar of the village, be weighed, examined and classified according to its quality and consistence and forwarded by the district Opium Officer to the Government opium factory in such manner as may be specified by the Narcotics Commissioner. " On a perusal of the evidence on record, this much is clear that cryptic evidence is being led by the prosecution in this case. It is not clear as to whether after the alleged preliminary weighment, the produce was left with the cultivator and after verification as required under Rule 15 quoted here to above as to what happened about the custody of the produce. Rule 14 makes it obligatory upon the department after the opium weighed, examined and classified cannot be left by the department with cultivator. The Lambardar is appointed under the rules by the District Opium officer amongst cultivators of the village as provided under Rule 10. It is the duty of the cultivator as provided under Rule 13 to produce daily harvesting before the Lambardar for weighment and under Sub-rule (2) it is the duty of the Lambardar to weigh such opium and make necessary entries in the record as specified by the Narcotics Commissioner. The entries made in the register are to be attested by the Lambardar and the cultivator both. The entries made in the register are to be attested by the Lambardar and the cultivator both. The enquiry is to be conducted under Sub-rules (4) and (5) by the proper officer appointed by the department, if there is any variation in the preliminary weighment and during check conducted by him. It shows that this is rider on the prosecution before a cultivator is put to prosecution under Section 19 of the act. ( 7 ) THIS Court in the case of Raghubeer (supra) has held that provisions of Rules 13, 14 and 15 are mandatory in nature and its violation makes prosecution bad in law. The Court has warned narcotic Officials not to prosecute any person without compliance of the mandatory rules and the copy of the said judgment has been sent to the Secretary (Home) Government of India for necessary action into the matter. ( 8 ) LEARNED counsel for the Union of India had the courage to submit that the authority cited by the learned counsel for the appellant (supra) is not a good law but surprisingly he could not cite any other law or show any other provision in support of his contention. He failed to show the compliance of the mandatory provisions of Rules 13, 14 and 15 framed under the Act. He also failed to show as to how conviction recorded by the Court below is sustainable on the strength of cryptic evidence led by the prosecution before the Court below. ( 9 ) THE evidence led in this case has been detailed by me above. It makes crystal clear that the evidence does not make out case against the accused Gajodhar. The solitary cryptic statement of narcotic Inspector is not sufficient to conclude that accused actually extracted 3. 400 Kgs. And embezzled 3. 100 Kgs. Since he produced before the department only 300 grams of produce. It is shown on record that accused produced before the department only 300 grams opium but the prosecution utterly failed to prove that accused-appellant harvested 3. 400 Kgs. The solitary statement of sub-inspector by itself is not sufficient since Lambardar was declared hostile and has stated that no weighment was made from day-to-day in his presence nor he made any entries into the register nor accused put his signatures in his presence. The Lambardar is a person appointed by the department. His statement is against prosecution. 400 Kgs. The solitary statement of sub-inspector by itself is not sufficient since Lambardar was declared hostile and has stated that no weighment was made from day-to-day in his presence nor he made any entries into the register nor accused put his signatures in his presence. The Lambardar is a person appointed by the department. His statement is against prosecution. There is no reason to disbelieve this witness. The department has not shown mandatory compliance of the rules framed under the Act. No reliable evidence is available on record that day to day harvesting was actually weighed and the entries were being made in accordance with rules in the Register. The duty case upon Lambardar and the sub-inspector were not being discharged properly. Lambardar has gone to say to the extent that crop of the accused was destroyed by natural calamities and that weighment of the crop was made for one day only and on the contrary the prosecution alleged that weighment of crop was made day to day from 19. 3. 1987 to 26. 3. 1987 vide Ex. Ka. 1. The entries do not show that they were being made under the signatures of Lambardar and the cultivator. Merely because entries are being made in Ex. Ka. 1, the case of the prosecution cannot be accepted on the point that the accused actually harvested 3. 400 Kg. out of which he embezzled 3. 100 Kgs. since he produced only 300 grams with department. No evidence is being led by the prosecution to show the actual discharge of the duties cast upon Lambardar and other departmental officials have been there. No enquiry at all was conducted by a proper officer in his case before the accused was put to prosecution. No evidence was led to show that produce was actually left with cultivator after preliminary weighment. ( 10 ) CONSIDERING the totality of evidence available on record and legal position, I conclude that the prosecution has utterly failed to bring home the charge under Section 19 of the NDPS Act against the accused-appellant. The conviction recorded by the trial Court is bad in this case and is untenable. ( 11 ) IN view of above position, the appeal is allowed. The conviction and sentence awarded by the court below are set aside. ( 12 ) A copy of the judgment be certified to the Court below for information. . .