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2013 DIGILAW 381 (HP)

State of Himachal Pradesh v. Ses Ram

2013-05-03

RAJIV SHARMA, SURINDER SINGH

body2013
JUDGMENT Surinder Singh, Judge (Oral): Respondents were charge-sheeted, tried and acquitted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘the Act’), for cultivation of cannabis plants in the land comprising khasra No. 569 measuring 5-18-0 bighas in village Tosh Kutla, District Kullu. 2. Heard Mr. J.S. Rana, learned Assistant Advocate General. Therespondents, (hereinafter referred to as ‘the accused persons), are duly represented through counsel, however, the counsel is not present. Thus, in view of the judgment of the Hon’ble Supreme Court in K.S. Panduranga V. State of Karnataka, JT 2013 (3) SC 514, we proceed to examine the case on its own merit. 3. In short, the prosecution case is that :- (i) On 6.10. 2004, there was a special drive to destroy cannabis plants in the area of District Kullu. The police party headed by Head Constable Mohan Lal accompanied by PW-2 Bal Mukund and Numberdar Tej Ram (not examined) proceeded to village Tosh Kutla and reached there at 8 a.m. They started destroying cannabis plants in the forest area as well as on the private land. (ii) At about 1:30 p.m., the police-party reached Tosh-Kutla-Mandru-Thach and noticed the growth of cannabis plants over a big chunk of land. The Police with the aid of Patwari had tried to find out the ownership and possession of the land in question on the basis of the revenue record readily available and concluded that it was khasra No. 569, which is owned and possessed by the accused persons. Accordingly, Hukumnamas were sent to the accused persons through HHC Lal Singh. But they were not found present in the village. Thereafter, the police party with the aid of local persons uprooted and cut the cannabis plants. (iii) The Investigating Officer cut tops of five plants to take it as a sample and sealed with seal impression ‘D’. The remaining portion of the plants were sealed with the same seal, separately. (iv) The NCB forms in triplicate were filled in, one of which is vide Ext. PW8/A. The sample of seal was taken on separate piece of cloth vide Ext. PW1/D. The seal after use was handed over to Tej Ram, Numberdar. (v) The case property was taken into possession vide recovery memo Ext. PW1/C. (vi) The Ruqa, Ext. PW8/A was sent for registration of the case, which culminated into FIR Ext. PW8/B. Site plan Ext. PW8/A. The sample of seal was taken on separate piece of cloth vide Ext. PW1/D. The seal after use was handed over to Tej Ram, Numberdar. (v) The case property was taken into possession vide recovery memo Ext. PW1/C. (vi) The Ruqa, Ext. PW8/A was sent for registration of the case, which culminated into FIR Ext. PW8/B. Site plan Ext. PW11/A of the alleged spot was also drawn. (vii) On reaching the Police Station, the case property was produced before SHO Badri Singh. He sealed it with seal impression ‘H’, which was also taken on a separate piece of cloth vide Ext. PW8/E. Thereafter, the NCB form in triplicate as well as samples of seal and case property were handed over to MHC Roop Singh. He entered the same in Malkhana Register. The abstract of entry in the Malkhana Register is Ext. PW9/A. 4. On 7.10.2004, one of the sample parcels was sent to CTL, Kandaghat through Constable Pratap Singh vide RC No. 281 of 2004, Ext. PW6/A for its examination. He deposited the same in the Laboratory. On his return, he produced the receipt of the RC. On examination, the Forensic Science Laboratory opined it plants of cannabis Sativa (Indian hemp). 5. During investigation, the police took into possession the Jamabandi Ext. PW2/A and Khasra Girdawari, Ext. PW2/C. The land in question was also got demarcated through PW-3 Shri Sangat Ram, Field Kanungo. The demarcation report, Ext. PW-3/B was obtained. 6. The report of search and seizure was sent to Dy.S.P. Ramesh Chand for information. The accused persons were arrested. Later on, enlarged on bail. 7. After completing investigation, the Challan was presented in Court for their trial. They pleaded not guilty and claimed trial. 8. Prosecution examined its witnesses to prove the case. Accused persons also examined under Section 313 Cr.P.C. They denied having cultivated the cannabis plants on the impugned land. According to them, the land was Banjar, lying vacant for the last so many years. 9. The learned Trial Court did not believe the demarcation report to be correct and there was no evidence with respect to cultivating the said land by the accused persons. As such, they were acquitted, which has been challenged in appeal. 10. We have re-assessed the evidence on record. 9. The learned Trial Court did not believe the demarcation report to be correct and there was no evidence with respect to cultivating the said land by the accused persons. As such, they were acquitted, which has been challenged in appeal. 10. We have re-assessed the evidence on record. At the very outset, we would like to say that the prosecution has not examined any of the witnesses to prove that the impugned land was being cultivated by the accused persons, even prior to the alleged incident. Whereas, PW-2 Bal Mukand, Patwari, who is alleged to have identified the impugned land as Khasra No. 569 in village Tosh Kutla, on the basis of Shajra Latha and Jamabandi available with him, in cross-examination, pertinently stated that the Latha in question was in a torn condition and no demarcation was conducted on the impugned land. He had disclosed Khasra No. 569 on the basis of approximation, as it was not possible to ascertain the exact khasra Number in absence of Musabi which was not made available. He had supplied Jamabandi Ext. PW2/A to the police qua Khasra No. 569 regarding this land situated in village Thach, whereas he stated that the cultivation of cannabis plants was in village Tosh Kutla. Thus, statement qua the place of incident is also contradictory nor he stated that the said place falls in Thach. 11. Further, the appellant also took the assistance of PW-3 Sangat Ram, Field Kanungo to demarcate the impugned land, but significantly he stated that the said demarcation was carried out without the assistance of Musabi, as it was not available with him on that day. Therefore, he took the assistance from Shajra Latha for casual/cursory demarcation. He also admitted that as per the instructions of the Financial Commissioner, where the private land abuts the forest land, it is only the Assistant Collector, who is competent to demarcate the land and not the Field Kanungo. He stated that Tosh Kutla falls in Phati Manikaran and admitted that Shajra Latha of Phati Manikaran was quite old and torn. 12. The entire prosecution case hinges upon the demarcation report carried out by the Field Kanungo to link the accused with the impugned land. The statement of revenue officer is not reliable to connect the accused persons with the impugned land. 13. 12. The entire prosecution case hinges upon the demarcation report carried out by the Field Kanungo to link the accused with the impugned land. The statement of revenue officer is not reliable to connect the accused persons with the impugned land. 13. Therefore, on the strength of the aforesaid evidence, we cannot even press into service Section 54 of the Act to draw the presumption against the accused persons when the prosecution has altogether failed to connect the accused with the cultivation of cannabis plants. 14. In conclusion, we do not find force in the appeal filed by the State. It is devoid of any merit, hence, dismissed. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. Send down the record.