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Madhya Pradesh High Court · body

2008 DIGILAW 148 (MP)

NANDA SAKHAJI MAL v. STATE OF MADHYA PRADESH

2008-01-28

S.K.KULSHRESTHA

body2008
Judgment ( 1. ) THE appellant has preferred this appeal against the judgment dated 16-3-1995 of the learned Sessions Judge, Ratlam in Sessions Trial No. 72/1994 by which the appellant has been convicted under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to r. I. for one year and fine of Rs. 3,000/ -. In case of default in payment of fine, the judgment directs him to suffer further imprisonment for three months. ( 2. ) ACCORDING to the case of the prosecution, on 2-4-1994, information was received by the SHO Sunil Yadav, P. W. 4 from a source that in Village manankheda the accused had, in his field, cultivated Ganja (Cannabis) Plant without any license for the said cultivation. The information was recorded in exh. P-l and Sunil Yadav proceeded to the spot along with the Police force where he found the accused. The accused was informed that the Police wanted to take search of his field and if he desired search by any Gazetted Officer, the same would be arranged. The accused gave consent for being searched of which panchnama Exh. P-2 was prepared. After the Police and the witnesses gave their search of which Memo Exh. P-3 was prepared, they entered the field and found that the same contained 90 Cannabis Plants in violation of the provisions of the ndps Act, 1985. The Plants were seized vide Exh. P-4 and the accused was arrested of which Memo Exh. P-5 was prepared. The copies of the revenue record pertaining to the holding of the appellant were also procured from the Patwari and on coming back to the Police Station, Report Exh. P-8 was recorded. Samples of the Plants were forwarded to the Chemical Examiner and, according to his report Exh. P-9, found the articles seized to be Cannabis Plants. Accordingly, after completion of the investigation, the appellant accused was prosecuted. ( 3. ) THE accused pleaded before the Court below that he had already given his field to Puna for a sum of Rs. 10,000/- under the agreement Exh. D-l but not believing the defence of the accused, he was convicted and sentenced as hereinabove stated. Hence, this appeal. ( 4. ) THE appeal hinges mainly on the testimony of Sunil Yadav (P. W. 4)SHO who had participated in the matter from the beginning till the end. 10,000/- under the agreement Exh. D-l but not believing the defence of the accused, he was convicted and sentenced as hereinabove stated. Hence, this appeal. ( 4. ) THE appeal hinges mainly on the testimony of Sunil Yadav (P. W. 4)SHO who had participated in the matter from the beginning till the end. In his evidence while Sunil Yadav has deposed to the steps that were taken, he has frankly conceded that he did not make any spot map to show the position of the plants. His explanation was that since photographs had been taken, it was not thought necessary to prepare a spot map. However, he could not tell the whereabouts of the photographs. ( 5. ) ON account of the omission of Sunil Yadav (P. W. 4) to make a spot map or to produce the photographs, even if it is assumed that it was the field of the accused of which he was Bhumiswami and in possession, the question arises whether the Cannabis was cultivated by the accused. It is also not clear whether the Plants which were found were scattered or were in a row or in a bed so as give any indication that the Cannabis were grown by the accused. There is also nothing to suggest that it was not a case of spontaneous growth. There is also no evidence to suggest that anybody had noticed that the accused was cultivating the field and growing cannabis. ( 6. ) THE learned Sessions Judge has referred to the testimony of Sunil yadav (P. W. 4) Rameshwar (P. W. 1) and Rameshchandra (P. W. 5) with regard to the ownership and possession of the accused of the field concerned. Patwari madanlal (P. W. 2) has also been examined but Rameshwar and Rameshchandra have not supported the prosecution. It is, therefore, clear that even on the finding arrived at by the learned Sessions Judge with regard to the ownership and possession of the field, the quantity of Plants being only 90, and there being no evidence that they were systematically grown in the absence of spot map and the photographs, it is not unlikely that while the field had the Maize Plants, there may have been wild growth of the Cannabis. It is otherwise not comprehensible that if the accused wanted to grow Cannabis, he would confine the growth only to 90 Plants. ( 7. It is otherwise not comprehensible that if the accused wanted to grow Cannabis, he would confine the growth only to 90 Plants. ( 7. ) IN view of the above discussion, the accused becomes entitled to the benefit of doubt on the ground that there was also possibility of spontaneous growth of the Plants. ( 8. ) IN the result, this appeal is allowed and the accused is acquitted. The accused is on bail. His bail bonds shall stand discharged.