4H V HIGH GOURT OF CHHATTIBGARH AT BIIIA$PUR 83 : HON’BLE MR. JUSTICE PRITINKER DIWAKER ORA. N0. 921/ 1993 APPELLANT Paltan VCI‘SuS RESPONDENT ‘ State of Madhya Pmdesh Shri Ravi Bhagan counsel for the appellant. Shri Vivck Shanna, P.L. for the State. / CRIMINAL APPEAL UNDER SECTION-374$] OF THE CREC. JUDGMENT (09.07.2010) The present appeal arises out of the judgment and order damd 14.09.93 passed by the Additional Sessions Judge, Khaimgarh, District Rajnandgaon in S.T. No. 74/93 whereby convicting the accused/appellant for the ohence punishable under Section 20(b)(i) of the Namotics Drugs and Psychotropic Substance Act and sentencing him to undergo RI for two yeaxs and‘to pay iine of Rs. 2,000, in det‘ault of payment o‘f nne to further undergo RI for one year. 2. Case of the prosecution, in brief, is that on 3.2.93, entry was made in the rojnamcha sanha (EXP/5) mentioning in the same that the police constable namely Jai Krishna ’I‘iwari {P.W.- 3) had given information in the police station that when he had gone to the omce of M P E B for deposin‘ng the bill he saw one ,3 phnt of cannabis 1n the open held and thereafter the pohoe party went to the spot Further case of the prosecution 1s that after givmg due mhmanon to the accusedlappeilant v1de ‘Ex P/ 1 one cannabis plant was seized horn the kitchen ganien of the accused/appellant and after complehng the formalities FIR was registered on 3.2.1993'vide EXP/7. The seized arh'cle‘ /, wk‘ wa ent for cheical analysis to the FSL and after mceiving ‘the mport Ex.P/ 12, charge sheet was Eed n 22.3.93. 3. So as to hold t accusedappallant uilty, the prosecution has examined as many as four ’witnesses. tatnt of the accused/appe was also recordd under Sctio 313 of the r.P.C. in which he denied the charges leved agat him and pleaded his innocenoe and false implication in the case. This apart one defence witnes has also been examined by him in support of his case. 4. After hearing counsel for the parties, the trial Court has convicted and sentenced the accuSed/ appellant for the h'enée a md aea V s entione above. Hence this ppl. eard counsel for the rts and perused the matial avlable on ecor including the impugze judgent. 6. Contention of he counsel for the aelant is that the mtchen gann belongs to his father and there is no docnt On record to sow that the appellant was i exclusive possession of the houe in quesn'on or even of th ldtchen anlen. He subts that the. alleged plan was taen n‘om the kitchen garden of his father and then the formalities were completed in the olice station. further submits tha the mandat o d p He t ory provisins of the Act have not been complie with. 7. On the other hand supporting the judgment impugned, it has been argued by the State counsel that the witnesses have duly supported the prosecution case and minor lacuna in the prosecution case will not vitiate the entire trial 8. I have heard counsel for the parties and perused thei,’ record. To prove its case.the prosecution has examined 'Ugrasen (PAM—1) &. Gorelal (P.W.-2) seizure witnesses & Ishwari Prasad Chobue'y (PAM-3). Patwari who had prepared the spot map 8n s @ s s m o hc / g Seme llant e en C lle ins s o 5. H paie er ai rd d m t ppl le ume h n s e .g mi t k Pratap Singh Mamvi (P.W.-4) Investigating O$cer Whereas one ‘ defence witness Anjori (D.W.—1) had also been axamincd by the accused/ appellant. 9. Ugasen (P.W.—1) 85 Gomlal (PAM—2) seizure wimesses have not supported ’the pmsecution case. They have categorically stated that befoxe upmotn'ng the cannabis plant no formality as required under the law was completegl. lshwan’ Prasad Choubey (P.W.-3) Patwari has stated that he cannot say as to who is the owner of the land. Pxatap Singh {P.W.-4) the Investigating O$cer while supporting the case of the prosecution has stated that after completing all the formalities one cannabis plant (4 ft. an 8 inches) was seized vide Ex.P73. Even this witness has not stated that the land in quesnon was in exclusive possession of the accused/appellant. He has stated that in respect of the ownership of the kitchen ganien he has not asked any quest'on to the Patwari. 10. Defence witness Anjori (D.W.-1) has categon'cally stated that the land in question belongs to his father and it is he who was cultivah'ng the same by growing vegetables. 11. If the entire material is taken into consideration, it is apparent that the prosecution has utterly failed to prove the fact that the land in question was in exclusive possession of the appellant and the said cannabis plant was grown by the accused] appellant. p. 12. Minute examination of the evidence milects that the seizure wimesses have not supported the prosecution case and even they have not been declaxed hostile. It was the prosecution who was required to prove the case against the accused/appellant beyond reasonable doubtbut this Court is of the view that the prosecution has utterly failed to prove its case 11 beyond all the reasonable doubts. The prosecution has further “K failed to prove that as to who was the person who had grown " the cannabis plant and considering the defence of the a s "‘ LQ/ accused] appellant that the land m qucsnon does not belong to 1t W111 not ba safe for hun and the same belongs to ms father, this Court to conv1ct the accused/appellant for the oEence under Seetion 20 (b)(i) of the Narcotics, Drugs and Psychotropic of doubt is to be extended to the Substance Act and the beneut accused] appellant. 13. Consequently, the appeal 1s allowed lmpugned Judgment conv1cung and sentencmg the accused] appellant as menuoned above 1s set as1de He ls acqultted of the charges levelled agamst d to be on ba11 Hls baJl bonds him. Accused] appellant 1s rePorte stand discharged. 1; ti Sd/— Pritinker Diwaker Judge or ‘ l