Madhya Pradesh High Court
Khilawan Singh vs The State Of Madhya Pradesh on 11 October, 2007
Author: K.S. Chauhan
Bench: K.S. Chauhan
JUDGMENT K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 21.09.1993 passed by the Special Judge, Panna in Special Case No. 51/91 whereby the appellant has been convicted under Section 20(a)(i) of Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to R.I. for 5 years with fine of Rs. 1,000/- in default of payment of fine six months S.I.
2. The prosecution case in short is that on 25.04.1991 at 5:30 p.m. Ramkhilawan, Sub Inspector Police of Police Station, Devendranagar received the information on patrolling at village Makri that the cannabis plants have been cultivated in the Badi belonging to Khilawan Singh. On the basis of this information, he alongwith two constables and the witnesses Mulayam Singh, Kallu and Jhallu went there where seven cannabis plants were found. The witnesses identified them as the cannabis plants. The plants were got removed by appellant and were seized vide seizure memo Ex.P/2, arrested him and after returning at police station Devendra Nagar wrote the FIR wherein the Crime No. 60/91 under Section 20 of Narcotic Drugs & Psychotropic Substances Act, 1985 and 34 of Excise Act was registered. Map was prepared. The statements of witnesses were recorded. The seized articles were sent to Government Opium and Alkaloid Works, Neemuch (M.P.) from where the report was received. The sample was found of Ganja (cannabis plants). After completing the investigation, the charge sheet was filed in the Special Court, Panna on 25.06.1991.
3. The appellant was charged under Section 20(a)(i) of Narcotic Drugs & Psychotropic Substances Act, 1985 that he on the evening of 25.04.1991 in his Badi (thorn fenced compound) in village Makri, police station Devendranagar was found in illegal cultivation of seven cannabis plants without having valid permit to do so, therefore, committed an offence punishable under Section 20(a)(i)of Narcotic Drugs & Psychotropic Substances Act, 1985.
4. The appellant abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated.
5. The prosecution examined as many as four witnesses and defence one witness. After considering the evidence, the trial Court found the charge under Section 20(a)(i) of Narcotic Drugs & Psychotropic Substances Act, 1985 proved against the appellant and sentenced thereunder as stated in para No. 1 of this judgment. Being aggrieved by the judgment of the trial Court, the instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned therein.
6. The learned Counsel for the appellant submitted that the independent witnesses have been turned hostile and not supported the prosecution story. There are contradictions and omissions in the statement of Investigation Officer. His testimony alone is not sufficient to convict the appellant. He has further submitted that it has not been proved that the cannabis plants were seized from the exclusive possession of the appellant and the mandatory provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985 have not been complied with. Thus, the prosecution failed to prove the case beyond reasonable doubt against the appellant hence he is entitled for acquittal.
7. On the other hand, Shri G.S. Thakur, learned P.L. appearing on behalf of the respondent-State has submitted that conviction can be based on the testimony of the Investigating Officer and hence no corroboration is required. It is proved from the report received from the Government Opium & Alkaloid Works, Neemuch (M.P.) that the seized articles was Ganja (cannabis plants). The prosecution has proved the charge levelled against the appellant beyond reasonable doubt, therefore, it does not call for any interference.
8. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 20(a)(i) of Narcotic Drugs & Psychotropic Substances Act, 1985.
9. I have perused the entire case and evidence recorded therein.
10. Ramkhilawan (PW-4) received the information at village Makri while he was on patrolling that the cannabis plants have been cultivated in the Badi of Khilawan Singh. He went there at 5:30 p.m. alongwith the witnesses. The appellant was called by him. The witnesses identified the cannabis plants. Seven cannabis plants were there in the Badi of appellant. The plants were got removed by the appellant and were seized and sealed vide seizure memo Ex. P/2. He prepared the map Ex. P/3, arrested the appellant and recorded FIR Ex. P/7 and sent the cannabis plants for chemical examination to Government Opium & Alkaloid Works, Neemuch (M.P.) from where the report Ex. P/10 has been received by which the sample sent for examination was found to be of Ganja (cannabis plants).
11. In the cross examination, this witness has stated that Badi is situated on the back side of the house of appellant. He has not obtained any report from Patwari. He has further stated that he has not ever seen the Ganja (cannabis plants) and has never smelt the Ganja before this incident. He has also stated that Deputy Superintendent of Police was also present when the cannabis plants were seized.
12. According to the statement of Ramkhilawan (PW-4) the seven cannabis plants were seized from the Badi of appellant before the witnesses. The prosecution has examined these witnesses.
13. Mulayam Singh (PW-1) has stated that he has never gone to the Badi of appellant. The Police Inspector has not seized seven cannabis plants before him. No any map was prepared by Police Inspector. The appellant was also not arrested before him. This witness was declared hostile by the prosecution and was subjected to cross examination asking the leading questions wherein he has admitted his signature on seizure memo Ex. P/2, map Ex. P/3, arrest memo Ex. P/4 but he has stated that he has signed on seizure memo at police station Devendranagar. He has further stated that the Police Inspector has not recorded his police statement Ex. P/1. In short, it can be said that Mulayam Singh (PW-1) is not supporting the prosecution story regarding seizure of cannabis plants from the Badi of appellant.
14. Jhallu (PW-2) has also stated in the same manner wherein he has deposed that no cannabis plants were seized from the Badi of appellant, no map was prepared and appellant was not arrested. This witness was also declared hostile by the prosecution and subjected to cross examination by asking the leading questions wherein he has admitted the signature on the above documents but clearly stated that seizure memo was not prepared before him and further stated that Police Inspector has not recorded his police statement Ex. P/5. Thus, another witness Jhallu has not supported the prosecution story.
15. Kallu (PW-3) has also stated in the same way wherein he has deposed that he has never gone to the Badi of appellant. Cannabis plants were not seized from the Badi of appellant. No map was prepared. Appellant was not arrested. This witness was also declared hostile and on asking the leading questions he has admitted the signature on the above documents but clearly denied the seizure of seven cannabis plants from the Badi of appellant and has stated that Police Inspector has not recorded his statement Ex. P/6.
16. From the perusal of the evidence of Mulayam Singh (PW-1), Jhallu (PW-2) and Kallu (PW-3), it is manifestly clear that they are not supporting the prosecution story and specifically denying the seizure of cannabis plants from the Badi of appellant. So it is clear that the prosecution case is not supported by the evidence of independent witnesses.
17. No doubt the conviction of the appellant may be based on the sole testimony of the Investigation Officer provided it inspires the confidence, therefore, the statement of Ramkhilawan (PW-4) requires to be examined critically.
18. As it is evident that he received the information while he was on patrolling at village Makri but he has not reduced the information in writing as required by Section 42(2) of Narcotic Drugs & Psychotropic Substances Act, 1985 and has not complied with this provision.
19. Section 42(2) of the Narcotic Drugs & Psychotropic Substances Act, 1985 reads as under:
(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
20. ...
21. ...
22. It is also manifestly clear that the provisions of Section 41, 42, 43 apply in relation to the offences punishable under Chapter IV and relating to coca plant, the opium poppy or cannabis plant and for this purpose references in those sections to narcotic drugs, or psychotropic substance, [or controlled substance], shall be construed as including references to coca plant, the opium poppy and cannabis plant as specified in Section 44 of the NDPS Act. Ramkhilawan (PW-4) has not collected any evidence that the appellant is the owner and possession holder of that Badi because it was essential to prove that appellant was in exclusive and conscious possession of that Badi.
In the case of Bhola v. State of M.P. 1997 (2) EFR 71 it has been held that:
Where regarding possession and ownership of the piece of the land, prosecution witness simply stated that in front of the house of accused, a small Badi was situated which was in possession of accused, it was nowhere stated that who informed him that the Badi belonged to the accused or the accused was in exclusive possession of the said Badi, held that in the absence of material evidence the Badi was in exclusive possession of the accused and it belonged to him, it can not be held that the accused cultivated opium poppy.
23. ...
24. ...
25. In the case of P.U. Regi v. State by Superintendent 2001 (1) Crimes 327 (Mad), it has been held that:
Where cannabis plants were found in the fields in question, still there was no proof forthcoming from the prosecution to establish that the accused were in exclusive possession of the fields or they were owner of the field or they had actually cultivated the plants, possession of the accused not proved.
In the case of Udugula Yadagiri v. State of A.P. 1999 Cri LJ 3532 (AP), it has been held that:
Allegations were that the accused was in possession of and cultivating ganja in land. However, in the land records, the accused was not shown as owner of the land nor shown as cultivator of the land, the prosecution also did not support the prosecution case. Accused was acquitted of the charge.
Keeping in view the facts and circumstances of this case, it was incumbent upon the Investigating Officer to collect the evidence that the appellant was the owner and exclusive possession holder of the Badi but no attempt has been made by him in this regard. No witness has deposed that the Badi belonged to appellant. In such situation, the evidence regarding the ownership and possession of Badi of appellant is wanting. Thus, required evidence was neither collected nor adduced in this behalf.
26. It is evident that no any seizure witness has supported the fact that cannabis plants were seized from the appellant.
27. Ramkhilawan (PW-4) has stated that Deputy Superintendent of Police was also present at the time of seizure but it seems that he is giving the false evidence in this regard because no document supports the fact that Deputy Superintendent of Police was present on the spot at the time of seizure.
28. It also appears that the Police Inspector has not complied with the provisions of Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985. No such document has been produced by him regarding the compliance of this provision.
29. Section 57 of the NDPS Act runs as follows:
Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
30. The cannabis plants are said to be seized on 25.04.1991 and sent for chemical examination on 29.04.1991. No any evidence has been adduced by producing the Malkhana Register for other evidence as to where these cannabis plants were kept during this period. Thus, the provisions of Section 55 of the Act does not prima facie appear to be followed.
31. No doubt the articles sent for chemical examination was found Ganja (cannabis plants) but from the evidence of Ramkhilawan (PW-4), it appears that the cannabis plants which were sent for chemical examination were not received back only the cloth and paper in which cannabis plants were sent were received. So it can very well be said that the cannabis plants were not received back from the Laboratory after analysis. No inquiry was made as to why the plants were not received back when they were sent to the Laboratory. It clearly indicates that the seized articles were not produced before the Court, only the cloth and paper were produced. It also appears from the evidence of Ramkhilawan (PW-4) he obtained the cloth from the village but he was unable to express from whom the cloth was taken. If such was the situation, then it can be said that the seized cannabis plants were not sealed at the spot and the evidence of the seizure witnesses appears to be reliable that the cannabis plants were not seized and sealed at the spot.
32. It also appears that this witness is not giving the true account of the proceedings done at the spot. He has not stated a single word about Dehati Nalish and from his evidence it appears that directly the FIR was written whereas on perusal of the record it is found that Dehati Nalish was recorded at the spot and after that the FIR was written.
33. Ramkhilawan (PW-4) himself is the informant as well as the Investigation Officer. Investigation can not be conducted by officer who himself is an informant but investigation by such person is not fatal if it does not cause prejudice to defence. See Kalawati Devi v. State of Bihar 2002 (1) East Cri C 215 (Pat).
34. On foregoing discussion, it is apparent that there are several discrepancies in the prosecution case. The evidence of Ramkhilawan (PW-4) is not fully reliable. The other independent witnesses have not supported his version. It was not safe to convict the appellant on the basis of this sole testimony of Ramkhilawan (PW-4). Therefore, the finding of the trial Court regarding the guilt of the appellant is not well founded, it deserves to be set aside. As a result thereof, appellant is entitled for acquittal.
35. Consequently, the appeal is allowed. The conviction and sentence passed by the trial court are hereby set aside. The appellant is acquitted from the charge levelled against him. He is on bail. His bail bonds are discharged.