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2012 DIGILAW 93 (CHH)

DHAL SINGH v. STATE OF C. G.

2012-03-26

RADHE SHYAM SHARMA

body2012
JUDGMENT Radhe Shyam Sharma, J 1. This appeal is directed against judgment dated 11-02-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Durg in Special Criminal Case No.9/2003. By the impugned judgment, accused/appellant Dhal Singh has been convicted under Section 20 (a) (b) (i) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo simple imprisonment for 1 year. 2. Case of the prosecution, in brief, is as under:- On 17-04-2003, Anil Sharma (PW-5) was posted as Station House Officer, Police Station Dhamdha. On that date, he visited Village Khairjhiti along with his staff members. When he reached there, he received information that the appellant had cultivated 5 Ganja plants at his Badi. He reached at the Badi of the appellant. The appellant was informed about the right under Section 50 of the Act, 1985 vide Ex. P-6 and the consent of the appellant regarding search was recorded in Ex. P-6 itself. Thereafter, Anil Sharma (PW-5) searched the Badi of the appellant and 5 Ganja plants were seized from the said Badi. Site-Panchnama was prepared vide Ex. P-8 and the plants were seized vide Ex.P-9. Identification of plants was conducted vide Ex. P-10. Dehati Nalishi was recorded on the spot vide Ex. P-15. The appellant was arrested on the same day vide Arrest Memo Ex. P-13. After the seizure, Investigating Officer Anil Sharma (PW-5) came back to the police station and registered First Information Report vide Ex. P-16. Detailed reports were sent to the Sub-Divisional Officer (Police), Berla vide Ex. P-21. Shri Vijay Sharma, Station House Officer, Shaja (PW-2) sent seized Ganja Plants for chemical examination to Forensic Science Laboratory, Raipur vide Ex.P-11. Report (Ex.P-22) was received from FSL, Raipur vide Ex. P-23. In Report (Ex.P-22), test of Ganja plants was found to be positive. After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge under the Act, 1985, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri H. S. Ahluwalia, learned counsel for the appellant argued that the prosecution did not prove that the appellant had cultivated Ganja plants. After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge under the Act, 1985, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri H. S. Ahluwalia, learned counsel for the appellant argued that the prosecution did not prove that the appellant had cultivated Ganja plants. Ganja plants were seized in open place and the field was owned by appellant's father and was given as Adhiya. Chiman and Santosh cultivated in Adhiya on behalf of appellant's father. Exclusive possession of the appellant is 10t proved and it is quite reasonable that the plants may sprout up naturally. Therefore, the appellant is entitled to be acquitted of the charge framed against him. 4. Shri San deep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge, Durg do not warrant any interference by this court. 5. Having heard rival contentions of the parties, I have perused the record of in Special Criminal Case No.9/2003. 6. The prosecution examined Patwari - Kishorilal Sahu (PW-1), Station House Officer - Vijay Sharma (PW-2), Roshandas (PW-3), Shyamlal (PW-4), Station House Officer - Anil Sharma (PW-5), Head Constable - Kalesh Ram Chouhan (PW-6). The appellant examined Gaindsingh (DW-1) and Girja Shankar Lodhi (DW-2) in his defence. 7. Now, I shall examine whether the appellant cultivated prohibited cannabis Ganja in his Badi? 8. Anil Sharma (PW-5) deposed that he was on village tour for patrolling duty. When he reached Village Khairjhiti, he received information that the appellant cultivated Ganja plants in his Badi. He reached the Badi of the appellant and gave him notice vide Ex. P-6 before witnesses for search by him or by a Gazetted Officer or a by Magistrate/Tahsildar. The consent of the appellant was recorded in Ex. P-6 itself. He further deposed that he found 5 numbers of Ganja plants in the Badi of the appellant and prepared Site-Panchnama vide Ex. P-8. The Ganja plants were seized on the spot vide Ex.P-9. 9. In Alakh Ram Vs. State of U.P. (2004) 1 SCC 766, the Hon'ble Supreme Court observed thus:- "4. We heard the appellant's Counsel and the Counsel for the respondent. P-8. The Ganja plants were seized on the spot vide Ex.P-9. 9. In Alakh Ram Vs. State of U.P. (2004) 1 SCC 766, the Hon'ble Supreme Court observed thus:- "4. We heard the appellant's Counsel and the Counsel for the respondent. Under Section 8 (b) of the NDPS Act, cultivation of opium poppy or any cannabis plant is prohibited and under Section 20 of the NDPS Act, such cultivation of cannabis plant is made punishable with imprisonment and fine. In order to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happened to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation." 10. In the instant case, Anil Sharma (PW-5) deposed that the Badi, where the Ganja plants were seized, is recorded in the name of Tovaram, who is father of the appellant. It is true that the land was not recorded in the name of the appellant. Patwari - Kishorilal Sahu (PW-1) deposed in cross examination, in Para 3, that the father of the appellant is very old man. He was not able to cultivate, therefore, the land was cultivated by one Chiman in Adhiya Roshandas (PW-3) and Shyamlal (PW-4) did not support the prosecution case I and they turned hostile. 11. Gaindsingh (DW-1) deposed that Tovaram is very old man and therefore, he was not able to cultivate the land for last 5 years. Chiman cultivated the land on behalf of Tovaram in Adhiya. Tovaram got a motor pump installed in the said Badi for irrigation purpose and the villagers were using the motor pump for taking bath and washing clothes. Girja Shankar Lodhi (DW-2) also deposed that the appellant did not cultivate the land. The land was cultivated by Chiman. Ex.P-3 is a copy of Kistbandi B-1. In Kistbandi B-1, the land I was recorded in the name of Tovaram. 12. Roshandas (PW-3) and Shyamlal (PW-4) deposed that no Ganja plant was uprooted in the Badi of the appellant. 13. Girja Shankar Lodhi (DW-2) also deposed that the appellant did not cultivate the land. The land was cultivated by Chiman. Ex.P-3 is a copy of Kistbandi B-1. In Kistbandi B-1, the land I was recorded in the name of Tovaram. 12. Roshandas (PW-3) and Shyamlal (PW-4) deposed that no Ganja plant was uprooted in the Badi of the appellant. 13. The above evidence is to be appreciated that the land was owned by the father of the appellant. The prosecution has not adduced any evidence to show that the Badi, in which Ganja plants were uprooted, belongs to appellant Dhal Singh. The witnesses Roshandas (PW-3) and Shyamlal (PW-4), who were examined in support of the prosecution case, have not been able to establish that the Badi, where the Ganja plants were uprooted, belongs to the appellant. 14. The prosecution did not adduce any satisfactory evidence to show that the appellant has right over the Badi, from which Ganja plants were recovered. There is no evidence that the appellant cultivated these Ganja plants. Only 5 numbers of Ganja plants were recovered from the said Badi. Therefore, it cannot be said that these plants had been the result of cultivation. They may have been sprouted up there by natural process. 15. Learned Special Judge, Durg wrongly convicted the appellant. The conviction of the appellant cannot be sustained. 16. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20 (a) (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.