^c4^ ^. ..••"•MUI»(u..rfiea-i:-. f i::il;l;i HIGH COURT OF CHHATTISGARH AT BIU^PUR Cr. APB. No. 649/1993 SB: Hon'ble Shri Justice R.L. Jhanwar APPELLANT State of Madhya Pradesh (Now CG) Versus RESPOHDENT Dukaluram s/o Devi Kaawar JUDGMBNT Post forjudgment on U .11.2009 Sd/- R.L. Jhanwar Judge .;-—a n ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No.649/93 SB: Honsble Shrt Justice R.L. Jhaawar APPBLLANT State of Madhya Pradesh (Now Chhattisgarh) RESPONDENT Versus Dukalurain s/o Devi Kauwar, aged 45 years, r/o viUage Heinatkoudi, PoUce Station-Ainbagarh Chowki, TehsU - Mohla District Rajnan.dgaon(MP) (Now: CG) Appearaace: Shri Satish Gypta, Gtoverrunent Advocate for the State. Shri Rakesh Thakur, couasel for fhe respondent. JUDGMBNT (DeUvered on D .11.2009) The State/appeUant lias preferred this appeal against judgxuent dated 14th December, 1992, deUvered in Special Case No.88/91 by the Special Judge, Rajaaadgaon, whereby the respondent has been acquitted of tbe chat^e iinder Section 20-A of the Narcotic Drugs aad Psychotropic Substaaces Act, 1985 (hereiaafter referred to as "tbe Acf). 2. Brief facts o'f fhe prosecution are that on receiving informatMn on 23.10.1988 that the respondent was cultivatmg fhe plants df Gaaja ia his Badi situate at Hemalkoudi, Sub-Inspector, R.B. Agnihotri (PW-6);»started with Constable No. 262 aud witaesses- Sawan Siagh, Darbaa, Jagatram Nisbad and Itwari. Thereafter, he raided wheicupon he found ganja leaves we^hio.g 50 grams and 275 Catinabis Plants and seizure thereofwas niade !1!;1" — '^ vide Ex.P.2 aad Ex.P.3. Seized Cannabis Plaats i.e. ganja were sent for its test to Excise Sub-Inspector C.P.Nayak (P.W.7) aad upon test fhe seized maferial was found to be ganja. Test report is Ex.P.8. Dehati NaIlshiEx.P/5 was registered and ou the basis of Dehati. Nalisbi, F.I.R. was lodged vide Ex.P.6. 3. After coaipletion of fbie usual iavestigation, charge sheet was filed before the Sessions Judge, Rajnandgaon. The leamed 18t Additional Sessions Judge aad Special Judge, Rajnaadgaon franied fhe charge agauist fhe respondent under Section 20-A of fhe N.D.P.S. aad read over aad explaiued it to him, who abjured fhe guilt and stated fhat he is iiuiocent aad has been falsely implicated in. fhe case. 4. The learaed lat Additional Sessions Judge and Special Judge, after appreciation offhe evidence aud hearing fhe counsel for respective parties found that fhe prosecution has failed to prove the charge against fhe respondent aud acquitted him. under Section 20-A ofthe N.D.P.S. Act. Hence, fhis appeal has been ffled by the State. 5. I have heard leamed counsel for fhe parties at length aad have also perused the record.offhe Special Case. 6. So far as the question of seized article (caituabis plan^ts) is concemed, R.B.Agnihotri. (PW-6) stated that he had sent it to the Excise Sub-Inspector C.P.Nayak(PW-7) for exaiuiaiug it. He also stated that fhereafter it (caanabis plaats) was sent to F.S.L. Sagar for its cheiaical exaniiaation, but 110 report or docuiaent is available' oii record iu fhis regard. It is evident fix>m the evidence of C.P.Nayak (PW-7) fhat NMendra Kumar- Constable No.94 brought fhe seized article(caanabis plants) in sealed packet, which was exauuiied by him aad on examiaation, it was found to be gaaja. His report is Ex. P/ 8. This witaess stated fhat he had experience of h'"']' r -i*~»i^ ^^S-L •% i;! i ''v^^ -f^- examining ganja, but no docuinent ia fhis regard has been produced by him. He also did not suggest for chem-ical aualysis of the seized inaterial. Thus, the prosecution. has faUed to prove that fhe seized article (caruiabis plants) was ganja, as no report of cheiuical auialysis has been produced. 7. So far as the recovery of caanabis plauts (ganja) fi-oia fhe exclusive possession of tiie appeUant-Dukaluram. is concexned, ia fhis regard, R.B.Agnibotn (PW-6), Investigattag Of&cer stated fhat he had recovered 275 Nos. ofcaiuiabis plaiits (gaaja) by uprootixig fhem from fhe Badi of the appeUaat vide Ex.P/1 aad Ex. P/2. He recorded Dehati Nalici Ex.P/5 aud after reachiag to Police Station, registered F.I.R. Ex.P/6. He stated that on receiviag inforuiation froin an mfonaaat, he weiit for uivest^ation aud did not recori. fhe information ia writuig. This is also clear froin his statexn.ent that he was not aware fhat fhe house fi'oia where fhe seizure was inade, belonged to Chherkm. Bai. In fhe house of Dukaluram, his wtfe aad two young sons were also residiag with him. 8. Dinesh Kuinar(PW-5) had confimied fhe seizure of gaaja (caanabis plaats). He stated that R.B.Agiuliotri(PW-6) did not teU Dukaluram fhat if he wish ithen he could get his house Searched fi-oin aay Magista-ate. 9. From fhe stateiaent of.Patwari- Kunjbihari (PW-4), it is clear ttiat he prepared fhe inap Ex. P/3 aud Khasra Paachshala Ex.P/4, according to which, Khasra No.83 area 18 dismal is registered in ftie nam.e of Ctiherkin Bai ia viUage Heinalkoudi. It is evident that / Chherkid: Bai was also residiag wifh Dukaluram. r : ' 10. Ramvilas(PW-3) had also stated fhat daughter of Chherkin Bai is fhe wife ofDukaluraoi aad they aU reside in the saine house. 4 Simflarly, Jagatrain(PW-1) aad Itwari(PW-2) had also stated fhat daughter of Chherkin Bai is fhe wife of Dukaluraia aad they afl reside iti the same house. 11. Therefore, on fhe basis of above statements, it is ctear fhat the place froin where fhe caaaabis plauts (ganja) were seized i.e. house/Badi, were not in.fhe exclusive possessionof the appeUarit- Diikaluraia, as also it is evident fi-oni fhe statem.ent of Patwan- Kunjbihari(PW-4), who prepared niap aad Khasra Panchshala fhat the said house was ia fhe naiue of Clxherkin Bai. No witness was produced, who could state fhat fhe said plantation of catuaabis plants, was doue by Dukaluraai. Thus, on ttie basis of stateinents of the witaesses, prosecution has failed to prove fhat the house was iu exclusive possession of the appeUant. 12. Even if implicit reUaace was to be placed on the testiiaony of A.S.I. R.B.Agiuhotn, fh.ere is a clear cut violation of sub-section (1) of Sectioii 42 whereunder before entering iu a buUdiag or place for affectxag his search upon prior iEifonnation of contrabaad garya being kept thereia fhe oflBcer concemed has to record iafonnation so received m. wnting that contraband article was stored ia fhe preinises. Section 42 (2) of fhe Act inaadates that where an officer takes down auy infomiation in writing under sub-seGtion (1) or records grounds for his belief uader fhe proviso fhereto, he shall withiii seventy two hours .send a copy fhereof to his iminediate . official supenor. According to Section 57 of the Act, a duty has been cast on fhe A.S.I. R.B.Agnihotri fhat he shaU inake a full report ot arrest and seizure to his uiuaediate superior within. 48 bburs. •^Vf 13.:. In the present case, there is nothiag on record to show that the conipliauce of above provisions was inade by fhe A.S.I. Alfhough fhe above provisions of Section 42(1) and. 42(2) are inandatoiy in nature, haviug considered the facts aad circumstances, non-coiapUance of the above provisions casts doubt on the prosecution version. Even R.B.Agnihotri (PW-6) had nowhere stated ia his stateinent that no sooner did he received the iafonnation, h.e recorded it forfhwith itt writing or sent it to tus superiors within 48 yours in acQordance with law. 14. It is pertineat to niention here fhat ganja was seized on 23.10.1988 aad accordiag to notification under N.D.P.S. Act, 1985 - S.O. 390 (E), dated 30th May, 1989, which has come into force on 13th Deceinber, 1989, ganja does not coiae under fhe purview of N.D.P.S.Act since A.S.I. R.B.Agnihotri seized ganja (Cannabis plaats) from the house of Dukaluram on. 23.10.1988. There was no prohibition under the N.D.P.S. Act agauist possession of garga till 13th December, 1989. Therefore, at fhe time when recoveiy of ganjawas made on 23.10.1988 fhere was no notificatioD. on fhat date inakiag possession of ganja of offence under N.D.P.S. Act. It was oiily on 13.12.1989 notification ia this regard was issued as above. Thus no penal action is sustauiable on. fhe basis of recoveiy. Penal offences are ahvays perspective. Accordiiig to fhis notification stated above, the case of the appeUaut does not come uiider N.D.P.S. Act. When fhe appeUant was caught, at fhat tiiae, Act ganja does not come under the purview ofN.D.P.S. Act. 15. Considering fhe facts aad circuiastaaces of the case m.entioned above, I aui of fhe view fhat raaadatory provisions of Sections ,42(1) & 42 (2) and the obligatoiy provision ofSection 57 of the Act^ have not been coinplied wifh. Even fhe seizure inaterial Uas not been tested by bbemical process. The prosecution Uas also not been able to estabUsh that the house fixiiii where ganja Caanabis Plants were seized belonged to Chherkiubai or A.S.I. R.B.Agnibiotri had aay knowledge about the illegal cultivation. Therefore, the prosecution bas failed to estabUsh the guUt of the respondent beyond reasonable doubt. Therefore, fh.e Special Judge has rightty acquitted the respondent of the charge under Section 20-A of fhe N.D.P.S. Act aad no iaterference is required by this Court. 16. In the result, fhe appeal filed by the State is liable to be disiiussed and is accordingly dismissed. The judgment of acquittal passed by the Special Judge ia favour of the respondent is well inerited aad fhus luauitauied. Sd/" R.L. Jhanwar Judge