1 HIGH COURT OF MADHYA PRADESH : JABALPUR S.B: HON. SMT. SUSHMA SHRIVASTAVA, J. Criminal Appeal No.693/96 Ramesh VERSUS The State of Madhya Pradesh ______________________________________________________ Shri Surendra Singh, Senior Counsel with Shri Manish Mishra, Advocate for the appellant. Shri R.P. Tiwari, Govt. Advocate for the respondent/State. J U D G M E N T Appellant has preferred this appeal challenging his conviction and order of sentence passed by Special Sessions Judge, Sehore in Special Case No.106/95, decided on 02.04.96. 2. Appellant has been convicted under Section 18 read with Section 8(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ' NDPS Act') for unlawfully cultivating opium plants and sentenced to rigorous imprisonment for ten years with fine of Rs.1 Lac, in default further rigorous imprisonment for two years, by the impugned judgment. 3. According to prosecution, on 09.04.95 Sub-Inspector Chandramani Dwivedi, Station House Officer of P.S. Bilkisganj received a secret information that in village Kulas-Khurd appellant Ramesh Chandra had unlawfully cultivated opium poppy in his field known as 'Chamarwali Thon'. After recording the information in the Rojnamcha, Sub-Inspector Chandramani Dwivedi alongwith Police force left for village Kulas-Khurd, reached the field of the appellant known as Chamarwali Thon alongwith public witnesses and a photographer and found that appellant had cultivated opium poppy plants in his field amidst the crop of soyabean and sugarcane without any permit or licence. The aforesaid opium plants were uprooted, counted and they were in all 135 in number. The uprooted plants of opium poppy were seized from the appellant in presence of the witnesses and were duly sealed on the spot. 2 Appellant was arrested and taken to the Police Station Bilkisganj alongwith seized plants, where an offence was registered against him under Section 8/18 of the NDPS Act and was investigated. The seized plants were sent for chemical analysis. After analysis, each of the 135 plants answered to the test for opium alkaloid and meconic acid and were found to be opium poppy within the meaning of Section 2(xvii) of the NDPS Act. After due investigation, appellant was prosecuted under Section 8/18 of the NDPS Act and was put to trial. 4. Appellant abjured the guilt and pleaded false implication at the instance of Mehar Ali due to enmity. 5. Learned Special Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for unlawfully cultivating opium poppy plants in violation of Section 8(b) of the N.D.P.S. Act, convicted and sentenced him under Section 18 of the Act as aforesaid, by the impugned judgment, which has been challenged in this appeal. 6. Learned Senior Counsel appearing on behalf of the appellant submitted that the trial court gravely erred in convicting the appellant without there being any cogent evidence that the appellant cultivated the opium poppy plants or the land where the prohibited plants were allegedly grown. He further submitted that the land bearing khasra no.178/3, where the plants of opium poppy were found sown, as projected by the prosecution evidence, was recorded jointly in the names of the appellant and his two brothers, Nandkishore and Gendalal. The trial court also recorded a finding in para 21 of the impugned judgment that the land bearing khasra no.178/3, from where the opium poppy plants were uprooted and seized, was in the joint possession of the appellant and his two brothers and was recorded in their joint names and it did not exclusively belong to the appellant and was not in his exclusive possession; in such a case, appellant could not be held guilty for unlawfully cultivating the prohibited plants without there being any evidence in this behalf. 3 7. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant. 8. Record of the trial court perused. There is ample evidence on record that 135 plants of opium poppy were found grown amidst the crop of soyabean and sugarcane in the field known as 'Chamarwala Field' in village Kulas-Khurd and they were uprooted and seized from the aforesaid field. Sub-Inspector Chandramani Dwivedi (P.W-7), Station House Officer of Police Station Bilkisganj stated in his evidence that on 9.4.95 upon receiving a secret information that appellant Ramesh had unlawfully cultivated the opium poppy plants in his field known as 'Chamarwali Thon' at village Kulas-Khurd, and after recording such information in Rojnamcha, reached the field at village Kulas-Khurd with Police force and the public witnesses, located the 'Chamarwali Thon' with the help of witnesses and found that several opium poppy plants were grown amidst the crop of soyabean and sugarcane. According to Chandramani Dwivedi (P.W-7), he had enquired from the appellant if he had any licence or permit to cultivate opium poppy, but he had none. The opium plants were then uprooted and counted, all the 135 plants were seized by him vide seizure memo (Ex.P-2) in the presence of witnesses and duly sealed on the spot and sent for chemical analysis. 9. A.S.I. Onkar Datt Mishra (P.W-8) and Constable Suganlal (P.W-9), who claimed to be in the Police party alongwith Sub-Inspector Chandramani Dwivedi (P.W-7), also corroborated the aforesaid version. The public witnesses, namely, Devkaran (P.W-1), Imrat Singh (P.W-2) and Mehar Ali (P.W-5) also testified that the Police had come to village Kulas-Khurd on the day of Ramnavmi and found some plants growing amidst the crop of sugarcane and soyabean and those plants were got uprooted, counted, which were 135 in number, and were seized on the spot. 10. There is also evidence of Head Constable Balram (P.W-4) and Constable Suganlal (P.W-9) to the effect that the seized 135 opium poppy plants were duly sealed and kept in 4 'Malkhana' and sent to the Forensic Laboratory, Neemach for chemical analysis. As per report of FSL (Ex.P-20), each of the 135 seized plants answered to the test for opium alkaloid and meconic acid and were found to be opium poppy plants. 11. There was no challenge to the seizure of 135 plants of opium poppy from the field at village Kulas-Khurd. The main thrust of the submission of learned counsel for the appellant has been that the land bearing khasra no.178/3, from where the opium poppy plants were uprooted and seized, being in the joint possession and recorded in the joint names of the appellant and his brothers, appellant could not be held guilty for unlawful cultivation of the plants, without there being any evidence that appellant cultivated the prohibited plants or the land where the plants of opium poppy were found and seized. Reliance was placed in this behalf on the decision of Rajasthan High Court rendered in the case of Raya Vs. State of Rajasthan reported in 1997 Cr.L.J. page 3783. 12. In view of the aforesaid submission, the entire evidence is closely examined and the evidence of Patwari Ramprasad Saxena (P.W-3) assumes significance. Patwari Ramprasad Saxena (P.W-3) prepared the trace map (Ex.P-4) depicting the land bearing khasra no.178/3 in the possession of appellant Ramesh and his two brothers Nandkishore and Gendalal. Patwari Ramprasad Saxena (P.W-3) categorically stated that the land bearing khasra no.178/3, known as 'Chamarwala field', measuring 3.44 acres was recorded at the relevant time in khasra entries (Ex.P-7) in the name of appellant Ramesh and his two brothers, Nandkishore and Gendalal; it was only the land bearing khasra no.178/4 also known as 'Chamarwala field' admeasuring 0.96 decimal, which was recorded exclusively in the name of appellant Ramesh. According to Patwari Ramprasad Saxena (P.W-3), the land in question, as shown in the Police map (which is Ex.P-22 prepared by P.W-8 A.S.I. Onkar Datt Mishra) formed part of either land bearing khasra no.178/1, 178/3 or khasra no.179/1. Thus, it was not stated to be part of khasra no.178/4, which, as per 5 khasra entries (Ex.P-7), exclusively belonged to the appellant and was recorded in his name. It further transpires from the evidence of Patwari Ramprasad Saxena (P.W-3) that soyabean and sugarcane crops were cultivated in khasra no.178/3 and there was a 'medh' between the land bearing khasra no.178/3 and 178/4. 13. The public witnesses, namely, Devkaran (P.W-1), Imrat Singh (P.W-2), Mehar Ali (P.W-5) have also deposed that the land from which the plants of opium poppy were uprooted and seized was in the joint possession and joint cultivation of the appellant and his brothers and father. The trial court has also recorded a finding that the land bearing khasra no.178/3 known as 'Chamarwali Thon', from where the opium poppy plants were seized, did not exclusively belong to the appellant and was not in his exclusive possession, but it was in the joint possession of the appellant, his brothers and father and was recorded in the revenue record in their joint names. 14. There was also no cogent and positive evidence on record that the appellant himself cultivated the opium poppy plants, uprooted by him on being asked by the Police official or that he cultivated the land from where the opium poppy plants were uprooted and seized. None of the prosecution witnesses said that appellant himself cultivated the opium poppy plants or the land where those plants were found sown amidst the soyabean and sugarcane crops. On the other hand, the public witnesses, who hailed from village Kulas-Khurd, though treated hostile by the prosecution, have said that the aforesaid land was jointly cultivated by the appellant, his father and brothers and their Hali. 15. According to Devkaran (P.W-1) and Imrat Singh (P.W-2), Ramesh was not present in the field at the time when the Police came there, but he was called by the Police from the temple and appellant had uprooted the plants from the field on asking by the Police Officer. Although defence witnesses Ramcharan (D.W-1) and Asharam (D.W-2), the father of the appellant acceded to the suggestion made in the cross-examination that appellant 6 looked-after and cultivated the field known as 'Chamarwali Thon', but both of them hastened to add that it was jointly cultivated and thus they disowned their earlier statement. The statement of Sub- Inspector Chandramani Dwivedi (P.W-7) that the appellant told him that he had cultivated the land known as 'Chamarwali Thon', being in the nature of confession to the Police Officer, cannot be accepted. Needless to add that as per the evidence of Patwari Ramprasad Saxena (P.W-3) even khasra no.178/4, which as per revenue records, exclusively belonged to the appellant, was also known as 'Chamarwala Field' and evidently it was the land other than the one where the prohibited plants were found sown and uprooted. 16. Thus, there was no legal, cogent and positive evidence on record that the appellant himself cultivated the opium poppy plants or the land where the plants of opium poppy were found, uprooted and seized or that land exclusively belonged to him and was in his exclusive possession. Rather there was authentic evidence on record based on khasra entries (Ex.P-7) that the land bearing khasra no.178/3 was in the joint possession and recorded in the joint names of appellant and his brothers and father. In view of the joint possession and joint ownership in the land in question, the possibility of cultivation of prohibited plants by joint owners or joint cultivator cannot be ruled out. The joint owners or joint cultivators of the land in question, however, are not prosecuted. In view of such facts, it cannot be safely concluded beyond all reasonable doubts that it was the appellant, who cultivated the opium poppy plants or the land where the opium poppy plants were found sown amidst soyabean and sugarcane crops. As such, no presumption under Section 54 of the N.D.P.S. Act could be drawn against the appellant. 17. It would be profitable to reproduce here the following observation made by their lordships in the case of Alakh Ram Vs. State of U.P. reported in AIR 2004 Supreme Court page 2907 in para 6 of the judgment:- “Appellant Alakh Ram, his father and brothers owned 70 bighas of land. The prosecution has not 7 produced any document to show that the property from which the Ganja plants were uprooted belonged to appellant Alakh Ram exclusively. The witnesses who were examined in support of the prosecution also have not given any evidence to show that this property belongs to appellant Alakh Ram. There is no satisfactory evidence either oral or documentary to show that the appellant has a right over the property from which the Ganja plants were recovered. 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 been 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” 18. Although in the instant case, the possibility of sprouting of as many as 135 opium plants by natural process, is little, nevertheless, as said hereinabove, in view of the joint possession and joint cultivation of the land in question, the possibility of sowing and cultivation of prohibited opium plants in that land by joint owner or joint cultivator cannot be ruled out. Therefore, in absence of cogent and positive evidence to the effect that appellant himself cultivated the opium poppy or the land where its plants were found grown, appellant cannot be held guilty for unlawful cultivation of opium poppy. It needs no emphasis that when there is stringent punishment for an offence under N.D.P.S. Act, it should be proved beyond any shadow of doubt. 19. In the wake of aforesaid, the conviction of the appellant under Section 8/18 of the N.D.P.S. Act cannot be safely maintained, as he is entitled to benefit of doubt. 20. Appeal is, therefore, allowed. The conviction of the appellant and sentence awarded to him under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are hereby set aside and the appellant is acquitted of the charge. Appellant is on bail. His bail bonds shall stand discharged. (SMT. SUSHMA SHRIVASTAVA) Judge 16/08/2011