Allahabad High Court
Raghunath Kushwaha vs State Of U.P. on 16 April, 2024
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:65967 Reserved on : 02.04.2024 Delivered on : 16.04.2024 Court No. - 82 Case :- CRIMINAL APPEAL No. - 10663 of 2023 Appellant :- Raghunath Kushwaha Respondent :- State of U.P. Counsel for Appellant :- Bhagwan Das Counsel for Respondent :- G.A. Hon'ble Saurabh Srivastava,J.
1. Heard learned counsel for the appellant and learned AGA for the State and perused the record.
2. Present appeal has been preferred with a prayer to set aside the judgment and order dated 06.10.2023 passed by learned Additional District & Session Judge/Special Judge (DAAA), Laitpur in S.S.T no. 42 of 2012 (State of U.P. vs. Raghunath Kushwaha), arising out of Case Crime no. 292 of 2012, under Section 8/18(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Talbehat, District Lalitpur whereby the appellant has been convicted and sentenced for three years of rigorous imprisonment and fine of Rs. 10,000/- and additional simple imprisonment for three months in case of non-payment of fine by the court below vide order dated 06.10.2023 and the period undergone by the appellant in jail shall be set-off.
3. In brief, prosecution version is that on 21.03.2012, SI Matadeen Verma along with Constable 353 Pooran Singh and Constable 03 Balakhandi Deen was on patrolling duty at Terai Fatak vide GD No.39 at 15:45 PM, when they reached Terai Fatak via Barikhurd, Barikala, Servanshkala then an informer informed them that near Shahjad Dam, plants of opium having fruits were sown in the field of Raghunath Kushwaha. Raghunath Kushwaha was extracting from fruits of opium. Police officials tried to contact Circle Officer (CO), Talbehat and Sub-Divisional Magistrate (SDM), Talbehat but it could not be done. People from public were asked to become witnesses but none was ready for apprehension of rivalry. Police officials went ahead of Shahjad Dam from Terai Fatak by motorcycle and left the motorcycle on highway. Police officials along with informer searched themselves to ensure that they had no any illegal thing with them. They proceeded towards north direction from highway around 200 meters then informer pointed towards the person wearing red shirt, who was extracting from fruits of opium and he left the spot. As soon as, they reached 20-25 steps near that person, they saw that the person was extracting from fruits of opium plants. Seeing police officials the person tried to flee away but was apprehended by the police official at 17:30 PM by applying necessary force. On asking his name, he introduced himself as Raghunath Kushwaha S/o Govind Das R/o village Jamalpur, Police Station Talbehat, District Lalitpur. When he was asked about the plants then he told that those were plants of opium and he was collecting opium from it. These plants were sown in his field. Constables and that person counted the plants and they were found 106 green plants in number including all having small and big fruits thereto. All the plants were cut from the field. Six plants were taken separately from 106 plants. Some were having fruits others were without it. The weight was found to be around 10 KG. Plants were taken into custody of police. Recovered plants and plants taken for sample were kept in different clothes and sealed and stamped and sample seal was prepared. Fard was written and read over on the spot and signatures of companions and accused were obtained on it. Accused failed to adduce any license for cultivating opium crop in his field. A copy of fard was given to the accused/appellant after obtaining his signatures on it. On the basis of recovered contraband substance, First Information Report (hereinafter referred to as FIR) was lodged and accused/appellant was taken into custody. Thereafter IO started investigation.
4. On the basis of collection of evidence, charge-sheet was submitted against accused/appellant Raghunath Kushwaha under Section 8/20 of NDPS Act. The trial court took cognizance on 14.08.2012 and after supplying copy of the charge-sheet u/s 207 Criminal Procedure Code, 1973 (hereinafter referred to as CrPC) to the accused/appellant, charges were framed against accused/appellant on 04.05.2013 under Sections 8/15(b) of NDPS Act for cultivating opium plants in field without any valid license/authority. Appellant denied the charges and pleaded for trial. The evidence was recorded. Thereafter, on 21.04.2022, charges were amended from Section 8/15 to 8/18 NDPS Act u/s 216 Cr.P.C. Consequently, the witnesses were recalled for evidence with respect to the amended charges.
5. Prosecution has produced following prosecution witnesses to prove its case-
S.No Witness Name 1 PW1 Constable 510 Pooran Singh 2 PW2 Retired Constable Balkhandi Deen 3 PW3 Retired Inspector Udaybhan Singh 4 PW4 Retired SI Rajendra Prasad Dwivedi (IO)
5. PW5 Constable 388 Suresh Kumar
6. Prosecution has produced following documents to prove its case:-
S. No. Document Exhibit
1.
Recovery Memo Ka-1 (PW1)
2. Site Plan Ka-2 (PW3)
3. FSL Report Ka-3 (PW4)
4. Chargesheet Ka-4 (PW4)
5. FIR Ka-5 (PW5)
6. Carbon GD Ka-6 (PW5)
7. Recovered substance Material Ex.-1 (PW2)
7. PW1 Constable 510 Pooran Singh appeared before the trial Court. In his examination in chief, he stated that on 21.03.2016 he was posted as Constable in police station Talbehat. On that day, he along with SI Matadeen and Constable Balkhandi Deen was on patrolling duty vide GD No.39 at 15:45 PM. An informer informed them that near Shahjad Dam Raghunath Kushwaha was extracting from fruits of opium plants then CO Talbehat was informed but contact could not be established. Police officials tried to arrange public persons to become witnesses but none was ready. Police officials searched themselves and started towards north direction from highway. The informer pointed towards the person around 200 Meters away from highway that it was the person who was extracting from fruits of opium plants. The person was apprehended by the police officials by applying necessary force. He told his name as Raghunath Kushwaha S/o Govind Kushwaha. The person disclosed that these were plants of opium and he collected opium from these plants. These plants were sown in his field. The plants were counted and they were found to be 106 in number. The plants were cut. Six plants were taken as sample whose weight was 10 gm. Accused was taken into custody. Sample and rest contraband substance were kept in different clothes, sealed and stamped. Fard was read over and signatures of the witness and accused were obtained on it. A copy of fard was given to accused. Accused was taken to the police station and the case was registered. Recovered substances was brought in maalkhana. Fard is available on record as paper No.5Ka and is marked as Ex.Ka-1 in the handwriting of SI Matadeen, who has died.
8. PW2 Retired Constable Balkhandi Deen appeared before the trial court. In his examination in-chief, he stated that on 21.03.2012, he along with SI Matadeen Verma and Constable Pooran Singh was on patrolling duty vide Rapat No.39 at 15:45 PM at Terai Fatak. An informer informed them that near Shahjad Dam, Raghunath Kushwaha had sown opium plants having fruits in the field. He was extracting from opium fruits. Gazetted Officer was tried to be contacted but it could not be done. When police officials along with informer reached the spot then informer pointed from a distance and left the spot. They reached near that person and saw that he was extracting from opium fruits. The person tried to flee away after seeing police officials but he was apprehended at 17:20 PM in that field. He told his name as Raghunath Kushwaha S/o Govind Das. When he was asked about the plants and fruits then he disclosed that these are opium plants and he collected opium after extracting from fruits of opium poppy. These plants were grown in his field. The plants were found to be 106 in number. Six plants were taken as sample separately and rest were sealed separately. The weight of all plants was found to be 10 KG. SI Matadeen had written fard on the spot on which signatures of SI Matadeen, witness Constable Pooran Singh and accused were affixed which is Ex.Ka-1 on record. A copy of fard was given to the accused. Accused along with contraband substance was brought to the police station. SI Matadeen was posted with him who has died. The witness saw him reading and writing. Fard Ex.Ka-1 is in his handwriting and his signatures were affixed on it. The witness identified the handwriting and signatures of SI Matadeen. Recovered contraband opium is marked as Material Ex.-1.
9. PW3 Retired Inspector Udaybhan Singh appeared before the trial court. In his examination in chief, he stated that on 22.03.2012, he was posted as SSI in police station Talbehat. On that day, he took over the investigation of Case Crime No.292/2012 under Section 8/20 NDPS Act against Raghunath Kushwaha. On that day, he mentioned copy of chik, copy of rapat in CD and statements of FIR Scribe Constable Suresh Kumar and accused Raghunath Kushwaha were recorded. On 03.04.2012, statement of informant SI Matadeen Verma was recorded. On 04.04.2012, parcha related with remand was mentioned. On 17.04.2012, spot inspection was conducted at the instance of informant and site plan was prepared which is paper No.9Ka on record in his handwriting and his signatures were affixed on it which is Ex.Ka-2. After that he was transferred and investigation remained pending.
10. Witness was recalled on 11.08.2023 and he stated in his evidence that he knew retired Balkhandi Deen. He was posted with him in police station Talbehat. He had worked with the witness. SI Matadeen was also posted with him. He saw him reading and writing. He also identified his signatures and handwriting. Fard is paper No.5Ka available on record on which signatures of constable Balkhandi and SI Matadeen were affixed. Ex.Ka-1 is already marked on it. Matadeen Verma was informant in the above case. The case was registered by him. On that day, Constable Balkhandi was along with SI Matadeen at the time of arrest of accused and recovery. He has knowledge that both have died. The witness identified their signatures. The contraband substance of the above case was brought before the court on 17.01.2018 in front of Constable Balkhandi.
11. PW4 Retired SI Rajendra Prasad Dwivedi appeared before trial court. In his examination in chief, he stated that on 29.04.2012, he was posted as SI in police station Talbehat. On that day, he took over the investigation of Case Crime No.292/2012 under Sections 8/20 NDPS Act against Raghunath Kushwaha after transfer of SSI Udaybhan Singh. He mentioned this fact in CD. On 15.05.2012, he perused the CD prepared by previous IO and he prepared CD in this regard. He recorded statement of witnesses Constable Pooran Singh, Constable Balkhandi Deen and Constable Umashankar. On 22.06.2012, reminder for FSL Report was sent to FSL, Agra. On 05.07.2012, FSL Report was received which was included in CD. FSL Report is paper No.14Ka available on record and is marked as Ex.Ka-3. In FSL Report, parts of opium plants were identified and he filed chargesheet No.97/12 which is paper No.03Ka in his handwriting and his signatures were affixed on it which is marked as Ex.Ka-4.
12. PW5 Constable Moharrir 388 Suresh Kumar appeared before the trial court. In his examination in chief, he stated that on 21.03.2012 he was posted as Constable Moharrir in police station Talbehat. On that day, on the basis of Fard given by SI Matadeen Verma he registered Case Crime under No.292/2012 under Sections 8/20 NDPS Act against Raghunath Kushwaha. Chik Report is paper No.04Ka/1-2 available on record and is marked as Ex.Ka-5. The entry was mentioned in GD as rapat No. 45/12 at 19:35 PM on 21.03.2012. Carbon copy of GD is available on record as paper No.7Ka and is marked as Ex.Ka-6.
13. The contraband article was sent for chemical examination before the FSL, Agra (UP). The Report of the FSL was forwarded by the Scientific Officer vide report dated 11.05.2012. The copy of the aforesaid document was supplied to the accused and is marked as Ex.Ka-3 by the prosecution. The FSL report of the recovered contraband article is admissible in evidence as per the provisions of Section 293 of Criminal Procedure Code, 1973 (hereinafter referred to as CrPC) which provides that, "Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code."
14. Thereafter, the prosecution closed its evidence and the accused was called upon for his examination u/s 313 CrPC. Statement under Section 313 of CrPC was recorded on two occasions i.e. firstly on 06.11,2019 in which accused denied the prosecution story and stated that he was falsely implicated by the police due to election rivalry. Police had brought him to the police station from his house. Again on 19.08.2023, after PW5 & PW6 were being recalled and examined, accused again denied the prosecution story and stated that false investigation was conducted against him. He further stated that his sister-in-law (bhabhi) had contested the election for the post of village pradhan and that is why the then pradhan Smt. Jalebkunwar had a grudge against him. Due to connivance, he was falsely implicated.
15. The learned Additional District Government Counsel (Criminal) has argued before the trial court that each and every aspect of recovery of 'opium' was proved by overwhelming testimony of the prosecution witnesses. He further argued that 6 plants as sample from recovered opium plants were taken out and were duly sent for examination which on examination was found to be contraband 'opium'. Moreover, the accused did not specifically denied the fact that the produced substance was not recovered from his possession. Hence, accused is liable to be convicted.
16. Per contra, learned counsel for the appellant/accused has submitted that the accused is falsely implicated. Independent witnesses were not present at the time of alleged recovery. The contraband substance was found allegedly from the field of the accused. Nothing is recovered from accused. Neither he possessed any land nor he grew the opium poppy plants. He did not sow any opium. The recovered alleged plants are said to have been opium but the same has not been proved. Accused was not present in the opium field. There are lot of contradictions in the statements of witnesses. Fard was not prepared properly. The prosecution has failed to prove it's case beyond reasonable doubt against accused. Therefore, accused is liable to be acquitted from the charges levelled against him.
17. Learned trial court observed that the main charge levelled against the accused is to the effect that on 21.03.2012 he was arrested while extracting from opium poppy and 106 plants of opium were recovered from his field. It was found that a crop of opium was being cultivated by him and after arresting him a sample in the form of plants of opium was taken. The accused was not having any license to cultivate the opium crop hence he was charged for committing an offence punishable u/s 8/18 of NDPS Act.
18. Learned trial court further observed that in the present case, the prosecution has recovered standing opium crop in the field. The accused has failed to offer any explanation regarding his opium crop. He did not possess any valid license to cultivate the opium crop. It is not the case where any contraband substance or narcotic drug etc. has been recovered from the personal search of the accused or from any building or any conveyance. The opium crop was standing in an open field. Neither it is the case of the defence that any opium was recovered from the person of the accused or any opium related material was recovered from any bag etc. carried by him. Hence there was no occasion for the police party to comply with the mandatory provisions of Section 50(5) read with 50(6) NDPS Act and even if the accused has not been offered for being personally searched before the Gazetted Officer that does not vitiate the recovery process in the instant trial. Reliance may be placed upon the judgment of Hon'ble Apex Court in the case of Ajmer Singh v. State of Haryana [2010 (3) SCC 746] wherein the Hon'ble Apex Court has held that Section 50 of NDPS Act would not apply while searching the bag, briefcase or any vehicle. In another case the Hon'ble Supreme Court in Madanlal v. State of Himachal Pradesh [2003 (7) SCC 465] had held that, "A bare reading of Section 50 of NDPS Act shows that it only applies in case of personal search of a person it does not extend to search of a vehicle or container or bag or any premises. In view of above case laws, vehicle and the principles determined by Hon'ble Apex Court since the case relates to standing opium poppy therefore no occasion for police party to comply with the provisions of Section 50 of NDPS Act. Hence above arguments advanced by the defence counsel is not sustainable in the eyes of law.
19. The counsel for the defence has argued before the trial court that the alleged opium crop which was said to have been recovered from the field did not belong to the accused. The prosecution has not led any evidence to substantiate the fact that indeed the field in which the alleged opium crop was standing stood recorded in the name of the accused. In the absence of the ownership of the land in question from which the alleged crop was recovered, the liability of guilt cannot be fastened upon the accused.
20. With regard to the above argument, learned trial court observed that perusal of the record transpires that FIR was lodged against accused on the basis of recovery of 106 plants of opium poppy plants along with fruits on 21.03.2012 from the field near Shahjad Dam. The accused was found harvesting the fruits of the opium crop by the police party and he was arrested from the field wherein he sowed the crop and was extracting from fruits. The site plan which is marked as Ex.Ka- 2 goes to show that field from where the opium crop was recovered is adjacent to Shahjad Dam. The field is also adjacent to the place covered with the water logging. The place 'X' has been depicted as field of accused. PW1 Pooran Singh as well as PW2 Balkhandi Deen comprising police party arrested the accused in the broad daylight at around 05:30 PM. The notable feature is that the field from where the crop was recovered is surrounded by Shahjad Dam and by the land having water logging. Generally the people of the village cultivate the land when it is not submerged in water hence is engaged in shifting nature of cultivation. Sometimes the land which is submerged in water near the dam is used by the people of the village when the water recedes back. There is another aspect of the matter that hardly any person who is the owner of the land will grow a contraband substance or crop like opium poppy in his field inviting the attention of police and other persons. The accused was arrested from the field where he was plucking the fruits of the opium poppy/plants. He was arrested in the broad daylight. If the prosecution has not produced the evidence with regard to the ownership of the land that by itself may not be sufficient to discard the prosecution case which is otherwise proved by the testimonies of the prosecution witnesses. The arguments advanced by the counsel for defence has got no force.
21. The prosecution case is that contraband substance opium was recovered from the field where accused Raghunath was present. The weight of total plants recovered was 10 KG. From record, it is found PW1 and PW2 are witnesses of facts and were present at the spot when the alleged contraband substance plants fruits of opium was recovered from the field of the accused in which the accused was extracting from fruits of opium poppy plants as grown in the field which were alleged to be cultivated by the accused.
22. Learned trial court further observed that PW1 Constable Pooran Singh has proved the recovery memo and arresting of accused and stated that alleged recovered contraband substance was found which weighed as 10 KG. The crop was harvested by the accused at the instance of the team. Total 106 plants were found from the field and 6 plants were taken as sample. Sample and remaining contraband substance were sealed in different clothes. Defence counsel has cross-examined PW1 at length but no material contradiction has emerged out which could doubt the recovery or the place or the plants which were cultivated by the accused.
23. PW1 and PW2, who were present on the spot have deposed before learned trial Court that alleged recovered contraband substance was found from the field of the accused. The accused was extracting fruits. The total number of plants was 106. The accused had no license to cultivate this crop of opium. 6 plants were taken as sample separately and remaining was sealed separately. Defence counsel has cross-examined witnesses at length but no material contradiction has emerged out which could doubt the recovery. Hence recovery of opium poppy from accused cannot be doubted and argument of defence counsel has no force.
24. Counsel for the defence has argued that there is no material evidence available on record which could suggest that the recovered opium poppy plants were duly weighed by the police party. In the absence of any specific weights of the plants, it cannot be said that recovered plants were around 10 KG. As such the entire prosecution story is bad.
25. Learned trial court observed that perusal of record transpires that it has been mentioned in fard that opium poppy plants were recovered. The plants also bore fruit. The police party has ascertained the lumpsum weight of the opium poppy around 10 KG. There is no such recital in the recovery memo that any weighing scale or machine was brought to ascertain the weight of the recovered opium poppy. PW1 has stated that the weight of 6 plants was 10 gm whereas in his cross-examination, the witness has stated that the weight of 106 plants was 10 KG. The contraband substance was not weighed at the spot. Rather, the weight is written in Fard on the basis of estimation. As far as PW2 is concerned, he supporting PW1 stated that the weight of all plants was 10 KG. The plants were counted and it was found to be 106 in number. All the plants were harvested. 6 plants and remaining plants were sealed separately. The witness has also proved the case property produced in the court and it was exhibited before him. In his cross-examination, the witness has categorically stated that the weight of plants was 10 KG and it must have been weighed by Daroga Ji at the police station. It was not weighed at the spot. 10 KG was said on the basis of estimation. The case property was stamped and sealed and sample seal was prepared. On the basis of fard, the fact that accused was arrested from the field in which the opium crop was recovered is also not denied by the accused and there is nothing on record which could show that accused was not arrested from the field having opium crop. As the opium poppy plants were recovered from the field they were harvested at the instance of police party. The total number of plants were also mentioned as 106 in number. Out of which 6 plants were taken out and sealed separately which in turn sent for chemical examination. PW1 in his cross- examination stated that height of the recovered opium poppy plants was around 4-5 feet. If the statement of this witness is taken into consideration, the number of plants i.e. 106 and the total weight determined by the police party around 10 KG, the weight per plant comes to around 100 gm each which is very plausible and reasonable as a plant of approximate height of 4-5 feet is having gross weight of around 100-200 gm. Hence the approximate weight determined by the police party is convincing and if the opium poppy plants were not weighed by the weighing scale or weighing machine by the police party that could not be detrimental to the prosecution case as quantity of plants were specifically mentioned. Hence the argument of defence counsel does not have any force.
26. Counsel for defence has argued before learned trial court that witnesses have stated in their evidence that they proceeded from police station on 21.03.2012 at 15:45 PM. But they did not mention the time and distance between the place of occurrence and police station. In fard, it is mentioned that accused was arrested at 17:30 PM. PW2 has stated that accused was arrested at 17:20 PM. As per evidence, the time does not match with the stages of proceedings as it cannot be assumed that the whole proceedings took such long time of 2 hours 05 minutes. Hence the prosecution story should be seen as doubtful.
27. In reply to it, learned trial court observed that above argument advanced by the defence counsel is not sustainable because the distance between the place of occurrence and police station is shown in FIR is as 14 KM. The time of offence is mentioned as 17:30 PM. As per the evidence available on the record, the team started at around 15:45 PM. The witness PW2 stated that the accused was arrested at 17:20 PM. PW1 and PW2 stated that they tried to inform CO Talbehat but it could not be done. PW2 in his cross-examination stated that informer met them at 17:00 PM. The whole proceedings were carried out at the place of occurrence which took around 1 hour. PW5 has stated that FIR was registered at 19:35 PM on 21.03.2012. Thus, if the time of incident and the whole process thereafter is analysed, it is found that the team started around 15:45 PM and accused was arrested at 17:30 PM. The fard was written at the spot and accused was brought to police station at 19:35 PM at the same time the case was registered. Here, it may be mentioned that the record transpires that opium plants were harvested by the accused at the instance of the team which might have consumed lot of time and place of occurrence is 14 KM far from the police station. Moreover, it is not possible to determine the exact distance and time taken in going and coming from one place to another and exact time consumed in the proceedings. There is no such disparity in proceedings vis-a-vis time. Even if there is a little bit difference that cannot be a sole ground to discard the prosecution story. Hence the argument of defence counsel does not hold water.
28. Learned counsel for defence further argued before the trial court that when accused was arrested and the time present FIR was registered there is gap of almost 2 hours and 05 minutes and prosecution has failed to explain the delay hence the whole story should be seen as suspicious but in reply to it learned trial court observed that above argument is not sustainable in the eyes of law because contraband substance was found from the alleged place of occurrence i.e. field near Shahjad Dam. Therefore, Police obviously might have taken time to prepare recovery memo of the recovered contraband article, to weight and to bring all things including the substance and accused in the Police Station hence this whole process might take some time. Thus, the whole process took 2 hours and 05 minutes and accused was taken to police station at 19:35 PM. Hence the above argument by defence counsel is found to be baseless.
29. Learned counsel for defence argued before the trial court that the preparation of recovery memo and serving of copy of it to the accused is doubtful but learned trial court in reply to this argument observed that it may be mentioned that recovery memo was prepared by SI Matadeen Verma who has died which was in his handwriting and was signed by him and other companions of him. It is also mentioned in the recovery memo itself that a copy of fard memo was given to the accused and his signatures were obtained on it. This fact has been reinforced by the statement of PW1 in his examination in chief. PW2 stated that a copy of recovery memo was given to him. This shows that recovery memo was prepared and a copy was duly served upon the accused. Although PW5 stated that nothing was recovered from his possession in the police station. But it is mentioned in fard recovery itself and other two witnesses namely PW1 & PW2 have reiterated this fact that a copy of fard memo was given to him. The signatures of accused Raghunath are existing on fard memo. Hence this argument of the defence counsel is not sustainable in the eyes of law.
30. Learned counsel for defence further argued that the place of occurrence is doubtful. The accused was arrested from his field and the false arrest and recovery has been shown casting doubts upon the prosecution story.
31. With regard to the above argument, learned trial court observed that the perusal of record transpires that in recovery memo, it has been mentioned that the accused was arrested from a field near Shahjad Dam having opium plants which were being cultivated by the accused. The accused was arrested from the spot. The site plan which is marked as Ex.Ka-2 is proved by IO, PW3 before the court. He stated that he prepared the site plan at the instance of informant SI Matadeen. The perusal of site plan goes to show that the place 'A' shows the place where motorcycle was parked. At place 'B' in the site plan is the place from where the accused was seen by the police party. Sign 'X' shows the place (field of accused) from where the accused was arrested along with opium plants. In this regard, PW1 has stated that informer pointed towards a person who was extracting from the fruits of opium poppy. After that the accused was arrested. PW2 stated that informer pointed towards the person and left the spot. They saw a person extracting from fruits of opium poppy. Thus, the place of occurrence is duly proved by the prosecution evidence. The defence has not produced any document nor has examined any witness which may contradict the arrest of the accused from the aforesaid place, hence the place of arrest and recovery of accused is duly proved and the argument advanced by defence counsel has no force.
32. Learned counsel for defence also argued that the sampling of opium was not made properly and the sample seal was not proved before the court. As such prosecution story is highly improbable and cannot be accepted.
33. Learned counsel for State has argued that the proper sampling and sealing of contraband substance was made by the police party which was duly proved. PW1 stated that total 106 opium plants were found from the field and the opium plants were harvested at the spot and 6 plants as sample were taken which were also sealed and stamped. PW1 in his cross-examination stated that stamp of SI Matadeen's name was put on contraband substance. PW2 stated that sample was taken at the spot and it was sealed. PW2 further stated that the recovered contraband substance opium was opened in the court and was exhibited as Material Exhibit-1. He stated that it is the same which was recovered from the accused.
34. Defence counsel argued that the prosecution case is that the opium crop was harvested by the accused however there is no evidence of harvesting. It is also argued that there are several contradictions between the statements of the witnesses produced by the prosecution. No independent witness was examined by the prosecution to prove its case. All the witnesses are formal witnesses. Hence their testimonies cannot be relied upon to fasten the guild upon the accused.
35. In this regard, learned trial court observed that the evidence of PW1 and PW2 is relevant. They stated that opium plants were counted by the accused and were harvested. In his cross-examination, PW5 stated that he had seen 106 opium plants but he did not count those as the same had already been sealed and stamped. The plants were of opium poppy which were seen by him. Thus, the statement of PW5, FIR Scribe proves that fact that the plants of opium were harvested at the instance of police team on spot and these were sealed. Further, the perusal of record transpires that PW2 has stated in his statement that recovered contraband substance opium was produced before the court. The witness has identified that these were the same opium plants which were collected at the spot. In his cross-examination, he stated that there was no leaf but there was a broken fruit in the substance. The witness has identified that these were the same opium plants which were collected at the spot. From the aforesaid evidence, it can be said that the contraband substance opium poppy was sealed and sample seal was prepared on the spot. The opium plants were taken as sample and were sent to FSL for chemical examination. The substance was produced before the court which was duly identified by PW2 hence it can be said that the sampling of contraband was properly done and the same was produced and proved by prosecution. Even if the sample seal is not available on record that itself cannot form the basis that the contraband substance was not sealed and proved. Perusal of record transpires that witnesses produced by the prosecution are official police witnesses. They have deposed before the court. PW1 and PW2 were member of the police party who have recovered the contraband opium poppy and arrested the accused. SI Matadeen has died. So he cannot be called as the witness to depose in the court. As far as other witnesses PW3, PW4 & PW5 are investigating officers and FIR scribe, from their entire deposition made in the court no discrepancy or contradictions surfaced which might go to the root of the matter regarding the recovery and arrest. The contradictions which were highlighted by the counsel for the defence are minor in nature which are bound to happen as the witnesses were examined after a lapse of 6 years of the incident. If the witnesses may spell out each and everything in a tutored manner it makes their evidence under shadow of doubt. The minor discrepancies which crept in the statement of the witnesses makes their evidence in fact more cogent, credible and reliable.
36. As far as the argument of the defence counsel that no independent witness was examined by the prosecution, in this regard the perusal of recovery memo reflects the fact that the accused was arrested at around 5:30 PM from the field which is near the dam. Since the place of recovery and arrest is an isolated place therefore the possibility of movement of persons is very bleak. Apart from it, when a person is involved in commission of crime normally the people belonging to same village would desist themselves from making any statement against him. The recovery was made by the police party under bias has not been shown by the accused regarding the recovery and arrest hence non-procurement of independent witnesses at the time of recovery and arrest would not falsify the prosecution story which is otherwise has been duly proved by the overwhelming testimonies of the prosecution witnesses. As far as the argument of the defence counsel that the witnesses are formal official witnesses hence their evidence cannot be relied upon is not accepted because normally police officials would not depose against the accused in a malafide or biased manner unless the defence has been able to show that there was indeed some malafide or biaseness on the part of the police witnesses. Hence their evidence cannot be discarded. The defence has not been able to show any ill will or false implication by police party.
37. Learned trial court while adjudicating the trial relied upon certain judgments rendered by Hon'ble Apex Court which are as under :
i. Mahesh vs. State of U.P. [2000 (C.R.L.J) 1334] wherein, it has been held that if prosecution has proved its case by police personnel and prosecution version is that no independent witness was ready to appear before the Court so just because independent witness was not produced before the Court, the whole prosecution story cannot be vitiated. Just because of witnesses are from Police Department it cannot be a sole reason to discard the story of prosecution.
ii. Karamjit Singh vs. State (Delhi Administration) 2003 SCC (Cri.) 1001 wherein, it has been held that testimony of police personnel should be treated in the same manner as testimony of any other witnesses.
iii. Mohan Lal vs. State of Rajasthan [Criminal Appeal No. 1393 of 2010 decided on 17.04.2015] wherein, it has been held that it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.
38. Learned counsel for defence further argued before the trial court that accused's sister-in-law had contested the election of village pradhan hence the then village pradhan Smt. Jalebkunwar was having an enmity therefore, with the aid of police party the present case has been lodged. There is no discrepancy with regard to the sample and chemical examination of the recovered opium poppy plants. There is a discrepancy in the FSL Report. Hence it casts doubt upon the prosecution story.
39. In regard to above argument, learned trial court observed that the perusal of record transpires that as far as the lodging of criminal conspiracy against the accused, the accused has not examined any witness to advert the claim of enmity put forward by him. If Smt. Kusum who is sister-in-law of the accused had contested the election of village pradhan then why only accused has been roped in the present case leaving her husband and other family members is a relevant question which has not been answered by defence. The claim put forward by the counsel for the defence for falsely implicating the accused due to election of the office of the pradhan is not supported by any documentary or oral evidence in support thereof. Further the record transpires that the recovery of opium poppy was made on 21.03.2012. 106 plants of opium poppy were found. The gross weight of which is around 10 KG. Out of which 6 plants were sealed separately and were sent for chemical examination to FSL, Agra. The scientific Officer has submitted its report on 11.05.2012 which is marked as Ex.Ka-3 on record. It has been mentioned in FSL Report that the sample which was sent for chemical examination was examined and it was found that opium (papaver somni ferum linn). The report received from FSL corroborates to the recovery of the contraband material. Hence the argument advanced by defence counsel has got no force.
40. Learned trial court also relied upon judgment pronounced by larger bench of MP High Court in Criminal Revision No. 1933/2021 Kalla Mallah & Others vs. State of MP & Another, decided on 14.11.2022 wherein, it has been held that Section 18(1) and 18(b) do not provide punishment for cultivation of opium poppy therefore, note-3 is inserted to ensure that for want of specification of small or commercial quantity in relation of cultivation of opium poppy. So that the offence of cultivation thereof in contravention of the Act does not go unaccounted for/unpunished and, therefore the offence is covered under Section 18(c) of the Act. Hence note-3 is mandatorily required to be read in connection with Section 18(c) of the Act gives effect to the provisions of the Act having penal consequences, in conformity with the objects of the Act. From the above discussion, this court is of the opinion that the case of the accused for cultivating the opium crop falls within the purview of Section 18(c) of NDPS Act.
41. Finally, learned trial court reached to the conclusion that prosecution has proved that contraband opium poppy plants were found to be 10 KG. Prosecution has proved that alleged recovered contraband substance was opium by FSL Report. Prosecution has also proved that accused failed to show any license of carrying contraband substance. Opium is at Serial No. 92 of the list/notification attached in NDPS Act. Hence prosecution has proved in present case that accused was cultivating opium poppy plants in his field which were 106 in number and 6 plants were taken as sample and sealed separately. The prosecution has proved its case beyond reasonable doubt against accused Raghunath Kushwaha under Section 8/18(c) of NDPS Act. Accordingly, accused/appellant is liable to be convicted for the offence punishable u/s 8/18(c) of NDPS Act.
42. Learned counsel for the appellant challenged the impugned order on several grounds such as appellant was not arrested on the spot and no narcotic substance was recovered from his possession. Appellant neither possessed any land nor he grew the opium poppy plants. He did not sowed any opium. PW1 to PW5 are police persons so they are highly interested witness, due to that they have repeatedly given the statement against the appellant. In absence of ownership of the land in question from which the alleged crop was recovered, the liability of guild cannot be fastened upon the appellant. There is no independent witness of the alleged recovery. Appellant has no criminal history to his credit.
43. Learned AGA for the State although vehemently opposed the prayer sought thorough the instant appeal, but could not dispute the aforesaid facts as narrated by learned counsel for appellant.
44. After having the rival submissions extended by learned counsel for the parties and by bare perusal of the judgment passed by learned trial court, certain things are crystal clear that at no point of time, the report of the Lekhpal has been put forward which alleged to be demonstrated in a way that the plot in question belongs to the appellant, whereas the revenue records shows otherwise that the plot in question from where the seizure has been made belongs to father of the appellant.
45. It is also apparent from the records, that at the time of recovery of certain green plants of opium, there was hardly any partition made by revenue authorities and as such without having any partition, the owner of the plot has not been implicated which vitiated the entire proceedings as carried out by the prosecution.
46. So far as regarding the weight of the plant is concerned, the same was also not segregated from the root, stem and leaves with mud, whereas the entire extracted opium plant has been weighed and the weighing quantity has been mentioned as total weighed quantity of opium.
47. In absence of these relevant and important considerations which ought to have been given by the learned trial court but lacking the same the entire proceedings culminated into judgment dated 06.10.2023 is not sustainable in the eye of law.
48. In view of the aforementioned facts and circumstances, judgment dated 06.10.2023 is hereby set aside. Applicant is hereby acquitted in Case Crime no. 292 of 2012 under Section 8/18(c) of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Talbehat, District Lalitpur.
49. The instant appeal stands allowed accordingly.
Order Date :- 16.4.2024 Shaswat (Saurabh Srivastava,J.)