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Madhya Pradesh High Court · body

2007 DIGILAW 665 (MP)

Satyabhan Singh v. State of M. P.

2007-06-29

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 30.4.2001 passed by the First Additional Sessions Judge and Special Judge, NDPS Act, Shivpuri, in Special Case No. 6/2000, by which the appellant has been convicted under section 8 read with section 20 (a) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [in short "the NDPS Act, 1985"] and sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 1,000/- with default stipulation. 2. In short, the story of the prosecution is that on 17.9.2000, ASI, Ranvir Singh (PW 13), who was posted at P.S. Kotwali, Shivpuri, in the afternoon got information from the informant about the illegal cultivation of Ganja plants at village Chharenta. He went to village Chharenta alongwith the policy party and independent witnesses. Due to want of time search warrant could not be obtained. Notice for search was given to the appellant and in search nearly 45 plants of "Ganja" were seized from the field of the appellant. Seizure memo was prepared at the spot. The relevant documents are Ex. P-14, Ex. P-15 and Ex. P-16. Sample was also prepared vide Ex. P-19. The appellant was arrested. The arrest memo is Ex. P-20. The spot map is Ex. P-31 and the Dehati Nalisi was written which is Ex. P-32. The intimation of search, seizure and arrest was sent to the Special Judge vide Ex. P-8. The samples were deposited in the Malkhana of the police station and also sent for their examination to Forensic Science Laboratory, Sagar. The report of FSL, Sagar is Ex. P-33 which confirmed that the seized plants were of "Ganja ". After completion of the investigation, charge sheet was filed before the Special Judge and the trial Court after completion of the trial convicted the appellant as stated in para one of this judgment. 3. The main contention of the learned counsel for the appellant is that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt because no independent witnesses have corroborated the story of the prosecution regarding search, seizure and recovery of plants. Further, it is not established that in the field from which the contraband plants were seized belongs to the appellant. Further, it is not established that in the field from which the contraband plants were seized belongs to the appellant. It is also submitted that as per the definition given under section 2 (iii) (b) of the NDPS Act it is not proved that the seized plants come under the purview of definition of Ganja. It would be fruitful to reproduce the definition as laid down under section 2 (iii) (b) of the NDPS Act: "(iii) "cannabis (hemp)" means -- (a) xxxxxxxxxx (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops); by whatever name they may be known or designated; and (c) xxxxxxxxxx (iv) "cannabis plant" means any plant of the genus cannabis." 4. On behalf of the State, it is submitted that the plants were seized from the possession of the appellant and the trial Court has rightly convicted the appellant. He also drew my attention to section 46 of the NDPS Act in which it is the duty of the land-holder to give information about the illegal cultivation. 5. Ranvir Singh (PW 13) who is the main witness and in whose presence proceedings were taken place stated that on 17.9.2000 after getting information from the informant, he alongwith the police party and two independent witnesses namely Balkar Singh and Surendra Singh went to village Chharenta. Necessary entries were made in the rojnamcha sanha which are Ex. P-25 and Ex. P-26. Intimation under section 42 of the NDPS was sent to the SDO (Police) which is Ex. P-24. At Chharenta, witnesses Balkar Singh and Surendra Singh were taken together and they went to the field of the appellant. In the field, alongwith Soyabeen and Chili crops, it is found that "Ganja" plants were also cultivated. Notice was given to the appellant regarding the search and he gave his consent. The memo is Ex. P-13. He himself given the search and prepared memo Ex. P-14. In the field, about 45 plants of Ganja were found. Panch nama was prepared which is Ex. P-15. The information was given to the SDO (Police) and he gave necessary directions. On physical test, it was found that the plants were of Ganja. Panchnama was prepared which is Ex. P16. Recovery was made vide Ex. P-17. The sample was prepared in two bags vide Ex. Panch nama was prepared which is Ex. P-15. The information was given to the SDO (Police) and he gave necessary directions. On physical test, it was found that the plants were of Ganja. Panchnama was prepared which is Ex. P16. Recovery was made vide Ex. P-17. The sample was prepared in two bags vide Ex. P-19 and the sample of seal was also prepared vide Ex. P22. Thereafter, Dehati Nalisi was written and crime was registered vide Ex. P-32. In cross-examination, para 23, it is admitted by the witness that informant had not given any survey number or demarcation of the field. In para 39, the witness admits that in the whole proceedings or during the course of investigation, he has not mentioned the survey number of the field where the cultivation of Ganja was done. In para 40, he also admits that he has not called any Patwari for enquiring from him about the land. He enquired about the land from the witnesses only. 6. Som Singh Raghuwanshi (PW 14) has conducted the investigation of the case. According to the witness, the sample was sent to the FSL, Sagar. The report is Ex. P-33. In para 7, it is admitted by the witness that in charge-sheet the address of the appellant was written as village Raichand Khedi and admits that Raichand Khedi and Chharenta are the different villages. 7. Kailash Chand Sharma (PW 3) has also been examined by the prosecution. He has supported the version given by Ranvir Singh (PW 13) & Som Singh Raghuwanshi (PW 14). But in para 11, the witness stated that the field in which raid was made, the appellant was residing with his family members including his father Harvilas. he has no knowledge whether appellant has any field and he is doing cultivation. In this regard, Ranvir Singh (PW 13) can explain. 8. Balkar Singh (PW 8) did not support the prosecution case. He admits that in Ex. P-12 to Ex. P-22, signatures were obtained at the Kotwali and the appellant is not residing at village Chharenta. This witness was declared hostile by the prosecution. 9. Surendra Singh (PW 9) was also declared hostile by the prosecution. He also denied that Ranvir Singh (PW 13) came to his village and recovered Ganja plants. He admits his signatures in Ex. P-12 to Ex. This witness was declared hostile by the prosecution. 9. Surendra Singh (PW 9) was also declared hostile by the prosecution. He also denied that Ranvir Singh (PW 13) came to his village and recovered Ganja plants. He admits his signatures in Ex. P-12 to Ex. P-22 but they were taken when he was passing through the Kotwali. Similarly, Banti Jatav (PW 1), Raju (PW 2) and Akhayraj (PW 7) has also not supported the prosecution case and ultimately declared hostile by the prosecution. 10. Balwant Singh (PW 4) is the Patwari of Halka No. 44 of village Chharenta. As per the record of village Chharenta, the survey No. 347 area 0.07 rakwa, 348-area 0.07 rakwa and 349-0.93 rakwa belongs to Harvilas S/o Mukut Singh R/oRaichand Khedi. The relevant Khasra Entry is Ex. P-5C. In cross-examination, it is clearly stated by this witness that in these survey numbers no cultivation of Ganja was found. Other crops were taken by the farmer. 11. The main contention as advanced by the learned counsel for the appellant is that from the entire evidence as adduced by the prosecution, it is not proved that the land from where the plants were recovered belongs to the appellant becaue from the testimony of patwari Balwant Singh (PW 4), the field belongs to the father of the appellant and in this regard he relied on Devi Singh v. State of M.P. reported in [ 2002 (2) MPWN 111 ] in which it is laid down that field from which opium plants recovered not proved to be belonging to accused-plants not shown to have been kept in proper custody and care-provisions under sections 55 and 57 not complied with conviction is bad and the non-compliance of the mandatory provisions is fatal to the prosecution. 12. Counsel for the appellant further relied on Subak Singh v. State of M.P. reported in [2001 (1) CCrJ 182 (M.P.)] in which it is laid down that Cannabis plants seized from the bada situated on the backside of the house of appellant-not proved beyond reasonable doubt that bada in exclusive possession of the appellant but open place and accessible to other person. Discrepancy about the dates in police records and no explanation therefor appellant entitled to benefit of doubt and acquitted. 13. Discrepancy about the dates in police records and no explanation therefor appellant entitled to benefit of doubt and acquitted. 13. Learned counsel for the respondent/State referred section 46 of the NDPS Act and his submission was that it is the duty of the landholder to give information of the illegal cultivation because under section 46 it is laid down that every holder of land shall give immediate information to any officer of the Police or of any of the departments mentioned in section 42 of all the opium poppy, cannabis place or coca plant which may be illegally cultivated within his land and every such holder of land who knowingly neglects to give such information, shall be liable to punishment. 14. After considering the rival contentions and evidence on record, it is clear that the prosecution has failed to establish that the land from where the contraband plants were recovered belongs to the appellant. From Khasra entries and the statement of patwari Balwant Singh (PW 4), it is clear that at village Chharenta, the fields Survey No. 347 -area 0.07 rakwa, 348-area 0.07 rakwa and 349-0.93 rakwa belong to Harvilas who is the father of the appellant. 15. From the relevant Khasra Entry in the revenue record Ex. P-5C, it is not established that the appellant is in the possession of any portion of land. The benefit of section 46 will not be given to the prosecution. From the provisions of section 46, it is very clear that it is the duty of the landholder to give immediate information about the illegal cultivation. In this case, the prosecution has not established that the appellant is the land holder of the field from which Ganja was recovered. In this case, the father of the appellant was not made accused by the prosecution. 16. Further, no independent witnesses have corroborated the prosecution story. Therefore, it is not established that the land from where Ganja plants were recovered belongs to the appellant or he had any knowledge about the illegal cultivation. 17. Therefore, in view of the above discussions and the authorities as submitted by the learned counsel for the appellant, the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Rest of the submissions made by the counsel for the appellant are having no force. Hence, the judgment of conviction and sentence as awarded is hereby set aside. Rest of the submissions made by the counsel for the appellant are having no force. Hence, the judgment of conviction and sentence as awarded is hereby set aside. The bail bonds shall stand discharged. The amount of fine, if realized, be returned to the appellant. If the appellant is not required in any other case, he shall be released from the jail custody. Accordingly, the appeal is allowed. A copy of this judgment shall be sent to the concerning Court for its necessary action.