CRIMINAL APPEAL No.97 OF 2007 (S.J.) ------ Against the judgment and order of conviction dated 21.11.2006 and 30.11.2006 respectively passed by the Sessions Judge-cum-Special Judge, Vaishali at Hajipur, in Case No. C- IIA- 66 of 1995. ------ Nagdeo Singh, son of Mahgu Singh, Resident of village- Khilwat, P.S. Bidupur, District- Vaishali. ….. Appellant Versus The State of Bihar …Respondent -------- For the appellant : Mr. G. P. Bimal, Advocate. For the State : Mr. S. N. Prasad, A.P.P. -------- P R E S E N T The Hon’ble Justice (Mrs.) Sheema Ali Khan ------- S. A. Khan, J. The sole appellant has been convicted under sections 20(a) (b) read with section 8(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.30,000/- , and in default of which to undergo further imprisonment for one year by the Sessions Judge-cum-Special Judge, Vaishali at Hajipur, in case no. C- IIA-66 of 1995 vide judgment and order dated 21.11.2006 and 30.11.2006 respectively. 2. The prosecution case is that the Excise Inspector on 31.1.1995 along with other members of the team raided the village- Khilwat within the P.S. Bidupur, and found that cannabis plants were growing on a plot of land and also found one bag Ganja stored in the field. The plants were cut and burnt, whereas, the Ganja was seized and sealed by the raiding team. 3. Six witnesses have been examined in this case. P.W.1 is Kumar Rabindra Nath, P.W.2 is Panchu Patra, who is the informant of this case, P.W.3 is Siya Charan Paswan, P.W.4 is Chinta Devi, who is seizure list witness, P.W.5 is Saurabh Kumar and P.W.6 is Shiv Shankar Mishra. - 2 - 4. The question whether the appellant is guilty of growing cannabis plants and storing Ganja or not would depend upon whether the prosecution has been able to prove that the plot of land from where the recovery was made belongs to the appellant. 5. The specific defence is that the land does not belong to the appellant. It may also be kept in mind that the appellant was not present at the time when the recovery was made and, as such, it has been argued that the recovery was not from the conscious possession of the appellant. 6. This court will now examine the evidence in the light of what has been observed above. I may point out here that Chinta Devi (P.W.4) was the person, who had disclosed to the informant that the said land belongs to the appellant. P.W.4 has been examined in court and she has denied that she was present when the raid was conducted and that she identified the appellant. She has further denied her presence at the time when seizure was made. In this background, I shall examine the evidence of other witnesses, who are all official witnesses. 7. There are two discrepancies in the evidence of P.W.1, 2, 3 5 and 6. P.W.2, who is the informant of this case, has categorically stated that they did not take any steps to ascertain the Khata number or Khesra number of the plot on which the raid was made. According to this witness, it was Chita Devi, who disclosed that the land belongs to Nagdeo Singh. Apart from the statement of Chita Devi, the prosecution has not verified the number of the plot on which raid was conducted from the Circle Officer or any other officer. This aspect of the matter has been discussed in the trial court’s judgment at paragraph 14, as specific defence had been raised on behalf of the appellant that the land, in question, did not belong to him. The learned court below has rejected the defence and has not considered the evidence of the witnesses on this aspect and it was observed by the learned court below that it was the appellant, who had to prove that the land does - 3 - not belong to him. This approach, in my view, is defective. A man can prove that a particular piece of land belongs to him but it is difficult for any one to prove that a particular land or house does not belong to him. The onus to prove this lies squarely on the shoulders of the prosecution. This fact can easily be determined by referring to the documents such as records of right, municipal entries etc. In such view of the matter, it cannot be expected from the appellant to prove that the plot of land does not belong to him. 8. I am of the opinion that the prosecution has failed to prove that the appellant was the owner or was in possession of the plot, in question, and this ground alone would be sufficient to acquit the appellant. 9. Apart from the above fact that the prosecution has failed to prove the ownership and possession of the appellant, the counsel appearing for the appellant has also submitted that there are several other discrepancies in the evidence of the witnesses. It is said that P.W.1, 2, 3, 5 and 6 have also stated that cannabis plants were 5-9 feet tall and the same were cut by the raiding team and thereafter burnt at the spot. It has been submitted by the learned counsel for the defence that the prosecution has stated wrong facts in the court as an application had been filed by the prosecution seeking court’s permission to destroy Ganja and the cannabis trees also. The evidence brought on record and the statement made in the application do not tally which goes to show that the prosecution has not acted in a fair manner. 10. Learned counsel for the appellant also submits that Ganja seized was not weighed and only on the basis of the assumption made by P.W.2, it is alleged that 13 Kg. were recovered from the plot of land allegedly belonging to the appellant. According to P.W.1, the seized Ganja was kept in the Malkhana, whereas, according to the other witnesses, who are the officials of the Excise Department, it was kept in their department. It is submitted that such contradictions show the conduct of the prosecution. - 4 - 11. Learned counsel for the appellant further submits that according to Rule 2 (C) of the Narcotic Drugs and Psychotropic Substances Rules, 1985 the Chemical Excise Examiner did not have any power to conduct test with respect to the sample of seized Ganja. Rule 2 (C) defines “ “Chemical Examiner” means the Chemical Examiner or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government Opium & Alkaloid Works, Neemuch, or as the case may be, Ghazipur”. It appears that the occurrence took place on 31.1.1995 and the sample of Ganja was sent to the Chemical Examiner on 3.2.1995, whereas, sub-clause (C) of Rule of the Narcotic Drugs and Psychotropic Substances Act, 1985 was inserted on 14.2.1995, which would have effect from 25.2.1995 and, as such, it is not applicable in the case of the appellant. In any event, this question ought to have been raised before the trial court so that the relevant notification under Rule 2 of the said Rules could have been procured by the prosecution. 12. Having discussed and considered the relevant question that has emerged in this appeal, I find that the appellant cannot be held guilty for the offence under section 2(a) (b) read with section 8(b) of the N.D.P.S. Act on account of the fact that the prosecution failed to establish that the plot of land from which recovery was made belongs to the appellant. Accordingly, the judgment and order of conviction dated 21.11.2006 and 30.11.2006 passed by the Sessions Judge-cum- Special Judge, Vaishali at Hajipur, in case no. CII-A 66 of 1995 is set aside and the appellant Nagdeo singh, who is in custody, is directed to be set at liberty forthwith, if not required in any other case. 13. In the result, this appeal is allowed. (Sheema Ali Khan, J.) Patna High Court, Patna. Dated the 28th April, 2009. NAFR / JA/-