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2008 DIGILAW 1601 (BOM)

Rupsing s/o Gopal Barela v. State of Maharashtra

2008-11-14

K.U.CHANDIWAL

body2008
JUDGEMENT:- Heard Mr. G.V. Wani, learned Counsel for the appellant/accused and Mr. B.J. Sonawane, learned A.P.P. for Respondent/State. 2. The conviction recorded for the offence under Section 8(b) read with Section 20(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, directing the accused/appellant to undergo R.I. for three years and to pay a fine of Rs. 300/-, i.d. to suffer R.I. for one year by order dated 30th November, 1996 in Sessions Case No. 274/1995 is under challenge by the aggrieved accused/appellant. 3. The prosecution case in brief is that: A.P.I. Mohadikar, while on duty, received secret information on 28.8.1995 that the appellant cultivated ganja in the forest land within the limits of village Nimbdya, Tq. Raver. Consequently, Station diary entry was made. Superiors were communicated, as required under the law. Permission for conducting the raid was received. By soliciting services of panch witnesses and collecting requisite labelling and sealing material with weighing scale, the police party went to the field in a vehicle, when they went at the land, they noticed a hut, the appellant was found working in the field, who disclosed his identity. The police officer forwarded a written intimation to the accused in presence of panch. The police officer and the panch found that in between crops of Jawar and pulse at the northern side of the field, there were around 200 ganja plants (cannabis plants). The plants were uprooted, weight of which was found to be 4 1/2 kg. 50 grams sample from the plants was collected in packet and the sealing and labelling procedure was completed. Panchanama of events was drawn, signed by the panch witnesses. F.I.R., vide C.R.No. 29/2005 of A.P.I. Mohadikar, lodged and he took up the investigation. The Chemical Analyzer, on analysis of the said plants, confirmed the presence of ganja (cannabis). The services of Circle Officer were solicited for drawing the map at the spot, which he completed. After completion of the investigation, charge sheet came to be filed against the accused/appellant before the Sessions Court, Jalgaon for trying the matter under the provisions of N.D.P.S. Act. 4. Learned Special Judge explained the charge for the offence under Section 8(b) punishable under Section 20(1) of the N.D.P.S. Act, the accused pleaded not guilty to the charge. The accused did not examine any defence witness. 4. Learned Special Judge explained the charge for the offence under Section 8(b) punishable under Section 20(1) of the N.D.P.S. Act, the accused pleaded not guilty to the charge. The accused did not examine any defence witness. His stand before the learned Judge was that he is a labourer and has no concern with the Government field, as it belongs to Forest department and it is a forest land. The appellant also stressed that at the material time he was at his house in the village Nimbdya and he was brought to the field under false accusations. 5. The prosecution put in Vilas Bhaskar Kulkarni (P.W.1), who acted as a Panch; Police Officer – Duryodhan Chindhu Ingale (P.W.2); Police Officer –Dhananjay Baburao Patil (P.W.3) and A.P.I. - Mohadikar Dattatraya Mohan ( P.W.5) (I.O.). The Circle Officer is Gayabhau Sadashiv Patil (P.W.4), who carried measurement and drew map. 6. The Counsel for the appellant canvassed that the conviction cannot be sustained in the eyes of law as the exclusive or conscious possession of the land with the appellant is not at all proved. There is variance in the evidence of witnesses as to where the appellant was at the material time. The neighbouring agriculturists or any person from the nearby vicinity to establish that the field was under the domain of the accused/appellant, are not examined. 7. Learned A.P.P. while supporting the judgment claimed that P.W.1 is an independent witness though acted as a Panch has no animus to implicate the accused/appellant. P.W.4 is Circle Inspector. He has drawn the map, which shows encroachment by the accused/appellant in the forest land, even existence of groundnuts or crops are shown. In the middle portion of the said field, ganja (cannabis) plants were found. According to learned Counsel, merely giving statement under Section 313 of Cr.P.C. by way of denial or claiming to be an agriculture labour, is not sufficient. The accused is required to give account of his possession. The burden under the statute is on the accused/appellant. 8. The evidence relating to seizure of Ganja plants from the forest land is coherent and hence there is no reason to discard it. 9. The crucial aspect in the matter revolves around the conscious possession of Accused. According to P.W.1, Accused was working near hut in the field at the time of raid. 8. The evidence relating to seizure of Ganja plants from the forest land is coherent and hence there is no reason to discard it. 9. The crucial aspect in the matter revolves around the conscious possession of Accused. According to P.W.1, Accused was working near hut in the field at the time of raid. P.W.2 while part of same raiding party saw the Accused sitting near the hut. While at the center of field in a pit the incriminating Ganja plants were found. Prosecution has come with a case that it was forest land and P.W.4 Circle Officer, carried measurement based on copy of Panchanama to stress what was extent of encroachments. P.W.4 had no documentary evidence to show, the Accused made encroachment on forest land. None of the witness addressed that Accused was in possession or had domain on the Ganja plants. 10. It is true, even if the land belonged to Forest Department, physical possession or control needs to be gone into requiring proof thereof. There was absolutely no evidence from adjoining neighbour, or persons in the vicinity having seen the Accused either cultivating the field or cultivating Ganja plants. Nobody from forest department come forward armed with any document, to corner the Accused with illegal possession. 11. There is no revenue record to support prosecution to show possession of Accused. The term ‘possession ’ has several angularities and one need not to accept that Accused had caused encroachment on Govt. land. it is difficult to digest that Accused had domain or exclusive conscious possession. The initial burden to prove possession is on the prosecution, and then only, the applicability of presumption cast under Section 54 of N.D.P.S. Act can be put into acceleration. The word ‘possession’ naturally signifies lawful possession. There can be no possession without intention or consciousness. The agricultural field could not be said to be exclusively or consciously controlled by Accused. 12. In the matter of 2002 SC 3343, the Hon’ble Lordships were dealing with concept of possession in a matter under Narcotic Drugs and Psychotropic Substances Act, in paragraph 6 have observed thus: "Possession is the core ingredient to be established before the accused can be subjected to the punishment under Section 15. The word ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connotation. The word ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. In the instant case bags containing poppy husk were recovered from the vehicle in which accused were travelling. One accused was driving the vehicle loaded with bags of poppy husk. Other two accused were sitting on the bags placed in the truck. As soon as the vehicle was stopped by police one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods on such evidence it cannot be said that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having custody or control of the bags containing poppy husk. It is difficult to reach such conclusion beyond reasonable doubt. The persons who were merely sitting on the bags in the absence of proof of anything more, cannot be presumed to be in possession of goods. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. But, the fact remains that in the course of examination under Section 313 Cr.P.C., not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle." 13. In the matter of 2004, SC 4606, the Hon’ble Lordships observed, that recovery of bags of poppy husk from field, on which bags the Respondents were sitting and their presence itself was taken as possession by police which in fairness, the police were expected to conduct further investigation, that the Accused were really in possession of these articles. The State appeal against acquittal was dismissed. 14. The State appeal against acquittal was dismissed. 14. Thus, evidence adduced by prosecution is not sufficient to hold that Accused had encroached the Forest land or that he had cultivated Ganja plants. Consequently, the appeal succeeds. the Accused is acquitted. The conviction and sentence is set aside.