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Madhya Pradesh High Court · body

2012 DIGILAW 472 (MP)

Ramcharan v. State of M. P.

2012-05-01

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.10.1996 passed by learned Special Sessions Judge, Sehore in Special Case No.176/1995 convicting the appellant under section 8(b) read with section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the Act”) and thereby sentencing him to suffer R.I. for 5 years and fine of Rs.10,000/-; in default further R.I. for 6 months, the appellant has taken the shelter of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that one Manoj Mishra, Station House In-charge of Police Station Jawar, Tehsil Ashta, District Sehore received an information on 7.8.1995 at 2.50 A.M. that in the field Survey No.500 which is being possessed by the appellant, the plants of cannabis (ganja) are planted for which he has no licence. After reducing the said information in the Roznamcha and after performing the necessary formalities the raiding party proceeded to the spot in the late night where in the presence of the appellant in Survey No.500, 155 plants of ganja were found planted. All the plants were uprooted and samples were taken out from the bulk of plants which were uprooted. The samples were sent to the FSL Examiner, who found the presence of the ganja in it. 3. The Investigating Agency arrested the appellant and after completing the investigation a charge-sheet was submitted in the Special Court who framed the charges punishable under section 8(b)/20 of the Act, which the appellant denied and requested for the trial. 4. In order to bring home the charges the prosecution examined as many as 15 witnesses and also placed Ex.P-1 to P-59(C) the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under section 313 Cr.P.C. and in defence he examined one Babulal that the photographs which have been taken indicating the cultivation of the ganja plants were not planted in Survey No.500. 5. The learned Special Judge on the basis of the evidence placed on record came to hold that the charges are proved and eventually convicted the appellant and passed the sentence which I have mentioned herein-above. 6. 5. The learned Special Judge on the basis of the evidence placed on record came to hold that the charges are proved and eventually convicted the appellant and passed the sentence which I have mentioned herein-above. 6. In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 7. The contention of the learned counsel for the appellant is that looking to the testimony of the Patwari of the village, namely, Dhoolsingh (PW-12) it cannot be said that appellant was having exclusive possession over the area where the impugned plants of ganja were planted and were seized and if that would be the position, learned counsel submits that since the prosecution has utterly failed to prove the cautious and exclusive possession of the appellant on the land in question, his conviction is bad in law. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court, Alakh Ram vs. State of U.P., 2004 (1) Crimes 286. By inviting my attention to the seizure memo of the ganja plants it has been contended by learned counsel that the seizure has been made on 7.8.1995 at 5.30 hours, although the statement of the Investigating Officer as well as the photographer who took the photographs of the planted plants in the field, shows that in the late night the seizure was made and therefore, the entire case of the prosecution becomes highly suspicious. 8. On the other hand, Shri Dhande, learned Public Prosecutor argued in support of the impugned judgment and prayed that the appeal be dismissed. 9. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. 10. In the present case, the allegation against the appellant is that he was in exclusive possession of Survey No.500 and was cultivating the plants of ganja. In order to prove the factum of possession, the prosecution has examined the Patwari of the village, namely, Dhoolsingh (PW-12). In para-12 of his examination-in-chief this witness has stated that Survey No.500 on which the plants of ganja were planted is a joint holding having several Bhumiswamis and their names are entered in the revenue record in that capacity. In examination-in-chief itself this witness has stated that he cannot say that exclusively appellant Ramcharan cultivates the Survey No.500. In para-12 of his examination-in-chief this witness has stated that Survey No.500 on which the plants of ganja were planted is a joint holding having several Bhumiswamis and their names are entered in the revenue record in that capacity. In examination-in-chief itself this witness has stated that he cannot say that exclusively appellant Ramcharan cultivates the Survey No.500. This witness was not declared hostile by the prosecution and therefore, according to me, the prosecution is bound by the statement given by him. In this context, I may profitably place reliance on two decisions of Supreme Court, they are Mukhtiar Ahmed Ansari v. State (NCT of Delhi), 2005 SCC (Cri) 1037 and Raja Ram v. State of Rajasthan, 2005 SCC (Cri.) 1050. Thus, the prosecution is bound by the statement given by the Patwari that he cannot say that the Survey No.500 in which the ganja plants were seized was exclusively being cultivated by the present appellant only. Apart from this, when Patwari was cross-examined he has specifically admitted in para-14 that he cannot say that which part of Survey No.500 is in the personal cultivation of which person nor there is any entry in that regard in the revenue record. In this view of the matter, from the statement of the Patwari it is not proved that the area of Survey No.500 in which the cultivation of ganja plants was there, was in exclusive possession of the appellant or being possessed by some other person. 11. The Investigating/Seizing Officer, Manoj Mishra (PW-15) in para-54 has admitted that in the spot map (Ex.P-38) he did not mention that the area in which the ganja plants are cultivated belongs to whom. Further he has admitted that in the spot map it has also not been mentioned that the lands of which cultivator are adjoining the impugned land on the Eastern, Western, Northern and Southern side. Further he has admitted that after physical verification from the Patwari he did not prepare the spot map mentioning the fact that the particular area where the plants of ganja were planted is in whose possession. In para-55 he has further admitted that he has not recorded the statement of the agriculturists whose lands are adjoining to the impugned place in order to ascertain who is in exclusive possession of the said land. In para-55 he has further admitted that he has not recorded the statement of the agriculturists whose lands are adjoining to the impugned place in order to ascertain who is in exclusive possession of the said land. Hence, from the statement of the Investigating/Seizing Officer also the cautious and exclusive possession of the appellant is not proved. 12. The learned counsel for the appellant has rightly placed reliance on the decision of Apex Court Alakh Ram (supra) wherein it has been held that in order to convict the accused under section 8/20 of the Act, if there is no evidence that there was cultivation of ganja plants by the accused, he cannot be convicted. This decision is squarely applicable in the present case. 13. Apart from what I have held herein-above, on bare perusal of the seizure memo of the contraband article (ganja) (Ex.P-1) it is gathered that the ganja plants were seized on 7.8.1995 at 05.30 hours but looking to the testimony of the photographer, namely, Ramesh Chand (PW-1) who took the photographs of the land where the ganja plants were planted, it is gathered that in the late night in between 2.30 – 3.00 A.M. he went along with the raiding party to take the photographs of the contraband article (ganja) which were planted in the field. However, the Investigating Officer (Seizing Officer) Manoj Mishra (PW-15) in para-57 has admitted that in the seizure memo of the plants (Ex.P-1) it has not been mentioned that during the odd hours in the night the seizure of ganja plants was made. On the contrary, if the said seizure memo (Ex.P-1) is seen it becomes obvious that the seizure was made during the dawn hours at 5.30 A.M. 14. For the reasons stated herein-above, since the exclusive and cautious possession of the appellant on the area of the field of Survey No.500 from which the ganja plants were seized is not at all proved and further because that the time of seizure is also quite different, the entire case of the prosecution becomes highly suspicious and on the basis of the suspicion the appellant cannot be convicted. 15. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. He is on bail, his bail bonds stand discharged. 15. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. He is on bail, his bail bonds stand discharged. The amount of fine, if deposited, be refunded to him.