Chattisgarh High Court
Bhawan Sai vs The State Of Mp on 11 December, 2008
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 382 of 1998
Bhawan Sai
...Petitioners
Versus
The State of MP
...Respondents
! Shri A. K. Prasad, counsel for the appellant ^ Shri G.D. Vaswani, G.A. for the State Honble Shri Dilip Raosaheb Deshmukh J Dated: 11/12/2008 : Judgement Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 ORAL JUDGMENT (Passed on 11.12.2008) By this appeal, the appellant Challenges his conviction under Section 20 (a) (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth the `Act') by the Additional Sessions Judge, Baikunthpur in Special Criminal Case No.222/1996 vide judgment dated 17.01.1998 for cultivating and having been found in possession of 15 cannabis plants on 16.8.1996 at Village Birodidand and the sentence of R.I. for 3 years and a fine of Rs.3,000/- and in default of payment of fine to undergone R.I. for 1 year.
(2) Brief facts as unfolded by the prosecution case are that on 16.8.1996, upon receiving secret information that the appellant was cultivating cannabis plants in his Badi in Village Birodidand, Station House Officer of P.S. Sonhat-Bajnath Singh (PW-5) accompanied by two witnesses Ramprasad (PW-2) and Rampratap (PW-3) reached the Badi of the appellant and found that 15 cannabis plants had grown in Badi. After completing the necessary formalities, Baijnath Singh (PW-5) seized the 15 cannabis plants vide Ex.P-2 from the appellant, wrapped them in a sari and a piece of cloth and sealed. Dehati F.I.R. was recorded vide Ex.P-8 on the same day and on reaching P.S. Sonhat, F.I.R. was lodged vide Ex.P-9. The sealed packet of cannabis plants was sent to the Forensic Science Laboratory, Sagar with memo Ex.P-12 dated 2.9.1996 through Constable Balraj Choudary. The said articles reached the Forensic Science Laboratory on 10.9.1996. Upon examination of the contents of the sealed packet, it was reported by the Forensic Science Laboratory vide Ex.P-14 that the 15 plants contained in the sealed packet were cannabis plants. Investigation revealed that the Badi from where the cannabis plants were seized was jointly recorded in the name of one Lavango and Bhagwati Bai, the wife of the appellant. The appellant was prosecuted under Section 20 (a) (b) (i) of the Act. (3) The appellant abjured the guilt, pleaded innocence and led no evidence in defence. (4) The prosecution examined as many as 6 witnesses. Relying upon the testimony of Rampratap (PW-3) and Station House Officer Baijnath Singh (PW-
5) and the report of the Forensic Science Laboratory , learned Additional Sessions Judge, Baikunthpur convicted and sentenced the appellant as mentioned in para-1 (supra).
(5) Learned counsel for the appellant has assailed the conviction of the appellant under Section 20 (a)
(b) (i) of the Act on the ground that the prosecution has miserably failed to prove that the plantation of cannabis plants was done exclusively by the appellant. It was also argued that there is no material on record to show that the cannabis plants seized from the field were in conscious and exclusive possession of the appellant since the Badi from where the plants were seized, was recorded jointly in the name of Lavango and Bhagwati Bai. Placing reliance on Alka Ram Vs. State of U.P. (2004) 1 Supreme Court Cases 766, it was urged that the possibility that the cannabis plants had sprouted due to natural growth and were not the result of cultivation by the appellant, could not be ruled out. Attention was drawn to para 3 of the testimony of the independent witness Rampratap (PW-
3), who had stated that the place from where cannabis plants were found, other plants like Chakouda and corn had also sprouted and there was no crop beneath the Mango tree from where the cannabis plants were seized.
(6) On the other hand, Shri G.D. Vaswani, learned Government Advocate for the State/respondent while arguing in support of the impugned judgment, contended that the Badi from where the cannabis plants were seized stood recorded in the name of the wife of the appellant i.e. Bhagwati Bai though jointly with one Lavango. Since cultivation was predominantly done by male members of the family, it could be presumed that the cultivation was done by the appellant alone and by no other person. (7) Having heard the rival submissions, I have perused the record. In a similar case, the Supreme Court had in Alka Ram Vs. State of U.P. (supra) observed as under:-
"Under Section 8 (b) of the N.D.P.S. Act, cultivation of opium poppy or cannabis plant is prohibited and under Section 20 of the N.D.P.S. 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 happen 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."
Xxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxx "Xxxxxxxxxxx There is no evidence that the appellant cultivated these ganja plants. Having regard to the extent of the property and the number of plants recovered from that property, it cannot be said that these plants had been the result of cultivation. They may have sprouted there by natural process and the appellant or anybody who is the owner of the property must not have been diligent in destroying the plants.
There is no evidence to prove that there was cultivation of ganja plants by the appellant and the Additional Sessions Judge wrongly convicted him as the evidence adduced by the prosecution was not carefully scrutinized by the Court." Xxxxxxxxxxxxxxxxx.
(8) In the present case, the testimony of Patwari namely Nabi Rasul (PW-4) and the map Ex.P-6 leave no room for any doubt that the Badi where the cannabis plants had allegedly grown was recorded jointly in the name of one Lavango and Bhagwati Bai. Baijnath Singh, Investigating Officer (Pw-5) has admitted in para 9 that he did not make any enquiry about the cultivation of cannabis plants either from Lavango or from Bhagwati Bai. There is no direct evidence on record to show that the cannabis plants were cultivated by the appellant. Rampratap (PW-3) has stated in para 3 that the place from where the cannabis plants were seized is situated at a distance of 100 meters from the house of the appellant. He has further stated that at the site where the cannabis plants had grown, there was a mango tree and beneath the mango tree, Chakouda, corn and other plants had sprouted and there was no crop underneath the mango tree. There is a material contradiction in para 4 wherein this witness has stated that the cannabis plants were uprooted and handed over by him along with one Moharsai to Baijnath Singh, Investigating Officer (Pw-5) whereas Ramprasad (PW-2) has denied this fact. (9) In order to convict the appellant under Section 20 (a) (b) (i) of the Act, the prosecution is required to establish beyond all reasonable doubt that the articles which had reached the F.S.L. were the same articles which were seized vide Ex.P-2 from the appellant. In the present case, alleged seizure of the cannabis plants was affected on 16.8.1996. Malkhana register of the Police Station Sonhat was not produced to show the manner in which the cannabis plants were kept at the Police Station. Memo of the Superintendent of Police, Surguja Ex.P- 12 dated 2.9.1996 does not show that the cannabis plants were sent to the Forensic Science Laboratory in a sealed condition. This creates a doubt if the cannabis plants were sealed by the S.H.O. under his seal before keeping it in the Malkhana. Non production of the Malkhana register also strengthens this doubt. The report of the Forensic Science Laboratory dated 13.9.1996 Ex.P-14 shows that the cannabis plants were sent through one constable Balraj Choudary to the Forensic Science Laboratory who delivered it in the Forensic Science Laboratory on 10.9.1996. Constable Balraj Choudary was also not examined by the prosecution to explain the delay 9 days in delivering the packet containing the cannabis plants at the Forensic Science Laboratory. There is absolutely no material on record to show as to between the period 2.9.1996 and 10.9.1996 the sealed packet was handled by whom and in what manner. The possibility that during this period the contents of the packet might have changed hands can also not be ruled out. It is also pertinent to note that Rampratap (PW-3), the independent witness of seizure did not support the prosecution story and was declared hostile by the prosecution. As already discussed above, the testimony of the other witness Ramprasad does not rule out the possibility that the cannabis plants had sprouted due to natural growth and not as a result of cultivation by the appellant. (10) Having thus considered the rival submissions and for the reasons mentioned above, I am of the considered opinion that the prosecution has failed to establish beyond reasonable doubt that the accused had undertaken cultivation of cannabis plants or that cannabis plants were seized from his conscious and exclusive possession. Conviction of the appellant and the sentence awarded by the learned trial Judge deserves to be set aside. (11) In the result, the appeal is allowed. Conviction of the appellant under Section 20 (a) (b)
(i) of the Act and the sentence awarded thereunder by the learned Additional District Judge, Baikunthpur is set aside. The appellant is acquitted of the charge and shall be released from custody forthwith.
J U D G E