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Madhya Pradesh High Court · body

2009 DIGILAW 9 (MP)

PREM SINGH v. STATE OF M P

2009-01-05

R.K.GUPTA

body2009
Judgment ( 1. ) THE present appeal has been preferred against the judgment of conviction and sentence dated 08. 09. 94 passed in Special Case No. 21/93 by the Special Judge, Sagar wherein the present appellant has been convicted for an offence punishable under Section 8-C read with Section. 20-8 (1) of the narcotic Drugs and Psychotropic Substance Act, 1985 and has sentenced the present appellant of one year R. I. with a fine of Rs. 5000/. ( 2. ) ACCORDING to the prosecution story, 33 Ganja plants were seized from the agricultural land of the present appellant, on the basis of information received. The First Information Report was registered which is Exhibit P-8. ( 3. ) THE prosecution has examined PW-1 Ram Kumar who has been declared hostile and according to the prosecution he was the Panchnama witness, which is exhibit P-2. ( 4. ) THE next prosecution witness is PW-2 Nanhe Bhai. He has also been declared hostile. According to the prosecution, he is the witness of seizure. He has stated that no seizure memo was prepared in front of him ( 5. ) THE next prosecution witness is PW-3 Hari Kishan. He has also been declared hostile. He has stated that at Village Chourai the present appellant has an agricultural land and stated that Ganja plants were not seized in front of him. ( 6. ) THE next witness of the prosecution is PW-4 Gurubaksh Singh. He was the driver of the Private Jeep which plies between Damoh to Garha Kota. According to this witness, the police party travelled in his Jeep to village Chourai. He further stated that the police party went to the farm of the present appellant but after some time he also reached to the spot where the ganja plants were found. According to this witness the police in front of him had seized 33 ganja plants and he has also signed the Panchnama which is Exhibit P/1. During the cross examination, this witness has stated that he has not seen that ganja plants were full of fruits or not. He has denied in cross examination that after uprooting the ganja plants from the farm by the police he was called. He further stated that all the ganja plants were uprooted by the police party before him. ( 7. He has denied in cross examination that after uprooting the ganja plants from the farm by the police he was called. He further stated that all the ganja plants were uprooted by the police party before him. ( 7. ) THE Ganja plants were sent to the Laboratory and the report of the laboratory is placed on record as Exhibit P/10. The report states that a sealed packet was received by the Lab and after opening the sealed cover the plants seized were examined and in the examination it was found that the seized plants were the "ganja" plants. ( 8. ) COUNSEL appearing on behalf of the appellant submitted that there is no material on record that the. Ganja plants were cultivated by the present appellant. It is also contended that the farm from where the ganja plants were seized does not belong to the present appellant. Counsel for the appellant relied upon the judgment passed by the Apex Court in 2004 (11) SCC 766 Alakh Ram Vs. State of u. P. and on that basis it is submitted that it is for the prosecution to prove that the ganja plants were cultivated in the farm by the appellant and in the absence of any material as such, the appellant could not have been convicted under Section 8-C read with Section 20-B (1) of the Narcotic Drugs and Psychotropic Substance Act 1985 ( 9. ) PW-5 Yashwant Singh Thakur is the Sub Inspector who led the police party in his statement he has stated that after seeing the police party the accused after uprooting the plants attempted to run away along with the plants. He was chased and subsequently he was caught. ( 10. ) THE appellant in his defence has examined DW-1 Imratlal who is the Patwari. He has stated that in the Village Chourai no agricultural land belongs to the present appellant. During the cross examination, he has admitted that the land Survey no. 60/1, the owners of this land are Dashrath, Kishan and Shriram, all are the sons of the Prem Singh, the present, appellant. Dashrath is the elder son who is aged about 20-22 years. The said land was given to the aforesaid three persons i. e. sons of the present appellant by their maternal grandfather. ( 11. 60/1, the owners of this land are Dashrath, Kishan and Shriram, all are the sons of the Prem Singh, the present, appellant. Dashrath is the elder son who is aged about 20-22 years. The said land was given to the aforesaid three persons i. e. sons of the present appellant by their maternal grandfather. ( 11. ) ON this basis counsel for the appellant submitted that since the land does not belong to the present appellant, therefore, there could not be any prosecution of the present appellant for an offence punishable under Section 8-C read with section 20-B (1) of the Narcotic Drugs and Psychotropic Substance Act, 1985. ( 12. ) THE question in the present case is not about the ownership of the land but the question is with regard to the possession of the land. It is not clear from the statement of Patwari (DW-1) that the present appellant was not in possession of the said land though in the land records the name of the present appellant was not recorded as owner but it was recorded in the name of his sons. The said land as such was given to the sons of the present appellant by their maternal grandfather. ( 13. ) ON the basis of the same, I do not find any fault with the findings recorded by the trial Court that the agricultural land was in possession of the present appellant though his name was not recorded in the land records as owner of the said land. ( 14. ) THE next question which has been raised by the present appellant is that there is no witness examined by the prosecution who has seen that the present appellant had actually cultivated the Ganja plants in the farm. ( 15. ) ON the basis of the strength of judgment relied upon by learned counsel for the appellant as reported in 2004 (11) SCC 766 (supra) it is contended that the prosecution has to prove that the land as such not only should belong to the accused but the prosecution has also to prove from the witnesses that the recovered Ganja plants were cultivated by the present appellant. ( 16. ( 16. ) IN this reference, the question in the present case is that in the absence of any evidence of cultivation as argued on behalf of learned counsel for the appellant whether the present appellant can be convicted. Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides for punishment for contravention in relation to cannabis plant and cannabis. According to the same, whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder cultivates any cannabis plant or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable. According to this section, in relation to contravention which relates to suh-clause (a) which amounts to cultivation of any cannabis plant, he is to be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees. Further this section also provides that where such contravention relates to sub-clause (b) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. It is also provided that if the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees, provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. ( 17. ) CLAUSE 7-A of Section 2 of 1985 "act" was inserted in the said Act by the Act no. 2 of 1989 and according to the same, the minimum quantity in relation of Narcotic drugs and Psychotropic Substances. The Central Govt. has issued the notification on 27th September, 2001 wherein Item No. 55 relates to "ganja. " The smaller quantity (in gms.) of Ganja is 1000 and the commercial quantity (in gms.) of Ganja is 20 kg. ( 18. 2 of 1989 and according to the same, the minimum quantity in relation of Narcotic drugs and Psychotropic Substances. The Central Govt. has issued the notification on 27th September, 2001 wherein Item No. 55 relates to "ganja. " The smaller quantity (in gms.) of Ganja is 1000 and the commercial quantity (in gms.) of Ganja is 20 kg. ( 18. ) SECTION 8-A of the Act provides for prohibition of certain activities relating to property derived from offence. ( 19. ) ON the basis of the aforesaid analysis of Section 8-A as well as Section 20 (a) it is clear that the present case does not fall within the ambit of Section 20 (b) of the Act but the present case relates to Section 20 (a) of the Act which provides that whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder cultivates any cannabis plant then such an act is punishable. ( 20. ) IN the present case according to the prosecution story, 33 Ganja plants were found from the farm of the present appellant and, therefore, the present case fall within the ambit of Section 20 (a) of the Act. ( 21. ) ON behalf of the accused/appellant it is argued that the accused was not the owner of the said farm which is clear from the statement of DW-1 Imratlal who is a Patwari examined by the defence. The statement of DW-1 only states that in the records no land is recorded in favour of the present appellant in Village chourai wherefrom the ganja plants were seized. This witness is only with respect to ownership of the land. The whole of the reading of the statement of this witness does not show that the present appellant was in possession of the said land. On the contrary during the cross examination this witness has admitted that the land where from the ganja plants were seized belongs to the sons of the present appellant. On the basis of the same, trial Court held that the appellant was in possession of the farm. ( 22. On the contrary during the cross examination this witness has admitted that the land where from the ganja plants were seized belongs to the sons of the present appellant. On the basis of the same, trial Court held that the appellant was in possession of the farm. ( 22. ) UNDER the circumstances, I am inclined to hold that merely because the present appellant was not owner of any land that does not mean he was not in possession of any land and thus on the basis of the factum of possession I do not find any illegality or perversity into the findings given by the trial Court. ( 23. ) ON behalf of the appellant the next question which has been argued is that the present appellant has not cultivated. There are no witnesses examined by the prosecution to depose that they have an occasion to see the present appellant cultivating the ganja plants. Counsel for the appellant relied upon the judgment which is reported in 2004 (1) SCC 766 (supra) and on that basis it is submitted that the Apex Court held with respect to the offence committed under Section 20 (a)with regard to Cultivation that there has to-be some evidence which has to be examined by the prosecution to show that the witnesses as such have seen the cultivation of the Ganja plants by the accused. ( 24. ) IN the present case it is to be seen that the height of the ganja plants seized was of 1ft. The said judgment (supra) though says that it is to be proved through an eye witness with regard to cultivation of ganja plants by the accused. In the said judgment there is nothing about the height of the ganja plants. On the other hand in para 4 of the said judgment it is held that a person may be negligent in not removing the ganja plants and the ganja plants must have grown in its natural process. ( 25. ) THE trial Court has taken into account the circumstances and also the statement of PW-5 Yashwant Singh Thakur, Sub Inspector who led the police party. ( 25. ) THE trial Court has taken into account the circumstances and also the statement of PW-5 Yashwant Singh Thakur, Sub Inspector who led the police party. In his statement he has stated that when the raid was made in the farm then the conduct of the appellant has been that after seeing the police party the accused attempted to run away after uprooting the plants and such plants were also carried with him by the present appellant. He was chased and subsequently he was caught. This witness has been cross examined. This part of the statement has not been challenged in the cross examination on behalf of the present appellant. There is no even a suggestion that the said statement of this witness is incorrect or is false. ( 26. ) IN view of the aforesaid, it is clear that it was not the natural conduct of the accused. If the said farm was not in possession of the present appellant and if the accused has not cultivated the ganja plants then after seeing the policy party he should not have uprooted the ganja plants and also should not have run away. Such a conduct of the appellant is un-natural. If he was not aware of growing of ganja plants then he should have neither uprooted the same nor should have run away. This circumstance has been rightly relied upon by the trial Court. Thus, the judgment of the Apex Court (supra) is distinguishable on facts. ( 27. ) IN the present case, the word cultivation if it is to be understood with reference to the context of the offence then the word cultivation has to be given a wider meaning. The present appellant was in possession of the farm and permitted to grow the ganja plants up to the height of 1 ft. It is also not the case of the present appellant that he does not know about the ganja plants and he was not aware that the plants seized from his farm were of ganja. Any plant cannot grow without manure and water up to the height of 1 ft. This itself indicates that the present appellant intentionally permitted the said plants to grow upto the height of 1 ft. ( 28. Any plant cannot grow without manure and water up to the height of 1 ft. This itself indicates that the present appellant intentionally permitted the said plants to grow upto the height of 1 ft. ( 28. ) ON the basis of the same, I am inclined to hold that the appellant is guilty of cultivating the Ganja plants in his farm. ( 29. ) WITH respect to seizure of ganja plants, the statement of PW-4 Gurubaksh singh is relevant He has signed the Panchnama which is Exhibit P/1. He has also identified his signatures. He has deposed that ganja plants were seized in his presence The ganja plants were also uprooted in front of the police party and he was also present there. ( 30. ) ON the basis of the submission as such, it is very difficult to hold that the panchanama Exhibit P/1 has not properly been proved. The report of Laboratory also shows that they received a sealed packet and after its examination it was found that the seized plants were the ganja plants. ( 31. ) IN view of the aforesaid, I do not find any illegality committed by the trial court in convicting the appellant. As a consequence of the same, the present appeal is. misconceived and is dismissed. The bail bond of the present appellant/ accused stands cancelled. He be taken into custody to serve remaining part of the sentence. Appeal dismissed.