Madhya Pradesh High Court
Dhandu @ Kanhiay vs The State Of Madhya Pradesh on 3 August, 2018
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.20953/2018
(DHANDU @ KANHAIYA VS. THE STATE OF M.P.)
Jabalpur, dated 03/08/2018
Shri Aman Chourasiya, learned counsel for the applicant.
Shri Akhilendra Singh, learned G.A. for the respondent/State.
Case dairy perused and arguments heard.
This is first bail application under Section 439 of the Cr.P.C. in connection with Crime No.115/2017 registered at Police Station Civil Lines, District Sagar for the offences punishable under Section 8/20 of the NDPS Act.
As per the prosecution case on 29/06/2017 on the information of informant that applicant has cultivated ganja plants in his field, Virendra Singh Chouhan (Inspector) along with members of the Police force went to the applicant's field situated at village Chavda, where he found 62 plants of Ganja, which were cultivated by the applicant in his field. On that police seized those ganja plants from the possession of applicant and on weighing the same were found to be 121.350 Kg.
Learned counsel for the applicant submitted that the applicant is innocent and has falsely been implicated in the matter. There is no evidence on record to show that the field from where ganja plants were seized, belonged to the applicant. The description mentioned in the seizure memo was not tallying with the definition of ganja. There was no description in the seizure memo that the seized article was having flowering and fruiting tops, seeds and green leaves, so it cannot be said that the seized substance was ganja. The applicant has no criminal past. He is in custody since 29/06/2017. The charge-sheet has been filed and conclusion of trial will take time. On the aforesaid grounds, learned counsel prayed that the applicant be enlarged on bail. In support of his contention learned counsel placed reliance on a judgment of Hon'ble Apex Court passed in the case of Alakh Ram Vs. State of U.P., (2004) 1 SCC 766 and the judgments passed by this Court in the cases of Sunil Gujar Vs. State of M.P., (2015) 1 DC (Narcotics) 62, Makhanlal Vs. State of M.P. decided on 05/10/2012 in Cr.A.No.1890/1996 and Kadorilal Raghuvanshi Vs. State of M.P., 2005 (5) MPHT 38 (NOC).
On the other hand learned counsel for the State opposed the prayer and submitted that from the Patwari report and other evidence collected by the prosecution during investigation it is clear that the land from where plants of ganja were seized, was ancestral property of the applicant and at the time of incident the same was in his possession. Police seized 62 plants of ganja, weighing 121.350 Kg. from the field of the applicant, which comes under the commercial quantity, so looking to the provisions of Section 37 of the NDPS Act, applicant should not be released on bail.
From perusal of Patwari report and other evidence collected by the prosecution during investigation it appears that the land from where plants of ganja were seized, was ancestral property of the applicant and at the time of incident the same was in his possession.
The facts of the cases Alakh Ram Vs. State of U.P. , Sunil Gujar Vs. State of M.P, Makhanlal Vs. State of M.P. and Kadorilal Raghuvanshi Vs. State of M.P (supra) do not match with the present case as in first case only 17 plants of ganja were seized and there was no satisfactory evidence either oral or documentary to show that the accused has a right over the property from which the Ganja plants were recovered, while in this case in the Patwari report and other documents it is mentioned that the field from which ganja plants were recovered was in the possession of the applicant. In the case of Sunil Gujar (supra) two ganja plants were found in the back of the house of the applicant, while in this case 62 ganja plants were seized from the field, which was in possession of the applicant. In the cases of Makhanlal and Kadorilal Raghuvanshi (supra) only 5 Kg. and 1 Kg. 100 gram respectively ganja was seized by the Police from the possession of the accused of both the cases and in the seizure memo it is not mentioned that the article which was seized from the possession of applicant having flowering and fruiting tops, seeds and green leaves, so Court held that it is difficult to held that the substance which was seized was ganja, but in the case in hand Police prepared a case against the applicant for cultivation of ganja plants. Accordingly, these judgments do not help to applicant much.
It appears from the record that Police seized 62 plants of ganja weighing 121.350 Kg. from the field, which was in possession of the applicant, so looking to the facts and circumstances of the case this Court is not inclined to grant bail to the applicant.
Accordingly, M.Cr.C. is rejected.
(Rajeev Kumar Dubey) Judge as/ Digitally signed by ANURAG SONI Date: 2018.08.06 09:59:58 +05'30'