~ai ! '-7 H|GHCOURTQFCHHATTISGARH:BiLASPUR Singie Bench: Appeilant {ln_!am Respondent Hon'bie Shrl Diiip Raosaheb Deshmukh, J- Crimina! Appeai No. 382 of 1998 Bhawan Sai, S/o Ramdas Cherwa, aged 40 years, resident of Village- Birodidand P.S. Sonhat, District- sarguja (M.P.) (Now Chhattisgarh) Versus The State of M.P. Through P.S. Sonhat, District- Sarguja (M.P.) (Now Chhattisgarh) Appea! under Section 374 (2) of the Code of CrimJna! Procedure, 1973 Present: Shri A. K. Prasad, counsei for the appeiiant. Shri G.D. Vaswani, G.A. for the State. ORAL JUDGIViENT (Passedon11.12.2008) By this appeal, the appeJlant Chailenges his conviction under Section 20 (a) (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth the lAct!) bythe Additionai 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 Viiiage Birodidand and the sentence of R.i. for 3 years and a fine of Rs.3,000/- and in default of payment offine to undergone R.t. for 1 year. (2) Brief facts as unfoided by the prosecution case are that on 16.8.1996, upon receiving secret Information that the appeliant was cuitivating cannabis plants in hls Badi in ViiJage Blrodidand, Statibn House Officer of P.S. Sonhat-Bajnath Singh (PW-S) accompanied by h¥owitnesses Ramprasad (PW-2) and Rampratap (PW"3) reached the Badi of the appeilant and found that 15 cannabis piants had grown m ^,. 7 Badi. After completing the necessary formalities, Baijnath SIngh (PW-5) seized the 15 cannabis plants vide Ex.P-2 from the appeilant, v^rapped them in a san and a piece of cioth and seaied. Dehats FJ.R. was recorded vide Ex.P-8 on the same day and on reaching P.S. Sonhat, F.1.R. was iodged vide Ex.P-9. The seaied packet of cannabis piants was sent to the Forensic Science Laboratory, Sagar with memo Ex.P-12 dated 2.9.1996 through Constable Bairaj Chouda^. The said artlcies reached the Forensic Science Laboratory on 10.9.1996. Upon exarnination of the contents of the seaied packet, it was reported by the Forensic Science Laborator^ vide Ex.P-14 that the 15 plants contained in the seaied packet were cannabis plants. investigation reveaied that the from where the cannabis piants were seized was jointly recorded in the name of one Lavango and Bhagwati Bai, the wife of the appeiiant. TEie appeilant was prosecuted under Section 20(a)(b)(i)oftheAct. (3) The appeilant abjured the guiit, pleaded Innocence and ied no evidence in defence. (4) The prosecution examined as many as 6 witnesses. Reiying upon the testimony of Rampratap (PW-3) and Station House Officer Baijnath Sing'n (PW-5) and the report of the Forensic Science Laboratory , learned Additional Sessions Judge, Baikunthpur convicted and sentenced the appeilant as mentioned in para-1 (supra). (5) Learnsd counsei for the appeliant has assai!ed the conviction of the appeiiant under Section 20 (a) (b) (1) ofthe Act on the ground that the prosecution has miserabiy faiied to prove that the piantation of cannabls piants was done exciusiveiy by the appeilant. It was also ,.^^..:^ -^- ^. argued that there is no materiai on record to show 'that the cannabis plants seized from the field v/ere in conscious and exclusive possession of the appeilant slnce the from where tne piants were seized, was recorded jointiy in the narne of Lavango and Bhagwati Bai, Placing rellance on Alka Ram Vs. State of U.P. .(2004) 1 Supreme Court Cases 786, it was urged that the possibiiity that the cannabis piants had sprouted due to natural growth and were not the resuit of cultivation by the appeilant, could not be ruied 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 aiso sprouted and there was no crop beneath the Mango 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 from where the cannabis piants v^ere stood recorded In the name of the wlfe of the appeiiant i.e. Bhagwati Bai though jointiy wlth one Lavango. Since cuitivation was predominantly done by maie members of the family, it couid be presumed that the cultivatlon was done by the appeilant alone and by no other person. (7) Having heard the rivai submissions, I have perused the record. !n a similar case, the Supreme Court had in Alka Ram Vs. State of U.P. (supra) observed as under:- "Under Section 8 (b) ofthe N.D.P.S. Act, cuitivation of opium poppy or cannabls plant is prohiblted and c>/^c^;rc--^ .-LA- /.i under Section 20 ofthe N.D.P.S. Act, such cuitivation of cannabis piant is made punishabie with imprisonment and fine. In order to prove the guiJt, it must be proved that the accused had cuitivated this prohibited plant. There must be supporting evidence to prove that the accused cuitivated the plant and it is not enough that few piants were found in the property of the accused. it Is qulte reasonabie to assume that sometimes the piants may sprout up, if seeds happen to be embedded 'sn earth due to naturai process. IT piants are sprouted by natural growth, it cannot be said that it amounts to cuitlvation." Xxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxx . "Xxxxxxxxxxx There is no evidence that the appettant cultivated these ganja plants. Havlng regard to the extent of the property and the number of plants recovered from that property, it cannot be sald that these piants had been the resuit of cuitivation. They may have sprouted there by naturai process and the appellant or anybody who is the owner of the property must not have been diilgent in destroying the piants. There Is no evidence to' prove that there was cuitivation of g&nja piants by the appeliant and the Additlonal Sessions Judge wrongiy convlcted him as the evidence adduced by the prosecution was not carefuiiy scrutinized by the Court." Xxxxxxxxxxxxxxxxx. (8) in the present case, the testlmony of Patwari name!y Nabi Rasut (PW-4) and the map Ex.P-6 leave no room for any doubt that the Badl 'where the cannabis piants had aiiegedly grown was recorded jointiy in the name of one Lavango and Bhagwatl Bal. Baijnath Singh, investigating Officer (Pw-5) has admitted in para 9 that he did not make any enquiiy about the cuitlvation of cannabis piants either from -<- 2^ Lavango or frorn Bhagwatl Bai. There Is no direct evidence on record to show that the cannabis plants were cuitivated by the appellant. Rampratap (PW-3) has stated in para 3 that the place from where the cannabis piants were selzed 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 piants had grown, there was a mango tree and beneath the mango tree, Chakouda, corn and other piants had sprouted and there was no crop underneath the mango tree. There is a materia! contradiction in para 4 whereln this witness has stated that the cannabis piants were uprooted and handed over by him along with one Moharsai to Baijnath Singh, investigating Officer (Pw-5) whereas Rarnprasad (PW-2) has denied this fact. (9) !n order to convlct the appeilant under Section 20 (a) (b) (i) of the Act, the prosecution is required to establish beyond ali reasonabie doubt that the articies which had reached the F.S.L. were the same articies which were seized vide Ex.P-2 from the appeIEant. En the present case, alieged seizure of the cannabis plants was affected on 16.8.1996. Maikhana register of the Police Station Sonhat was not produced to show the manner in which the cannabis piants were kept at the Police Station. Memo of the Superintendent of Poiice, Surguja Ex.P-12 dated 2.9.1996 does not shovv that the cannabis piants were sent to the Forenslc Science Laboratory in a seaied condition. Thls creates a doubt ifthe cannabis piants were seaied by the S.H.O. under hls sea! before keeping it in the Malkhana. Non-production of the Malkhana reglster also strengthens this doubt. The report of the Forensic Science Laboratory dated 13.9.1996 Ex.P-14 shovvs that the cannabls plants v^ere sent through one constable Balraj Choudaiy to the Forensic Science Laboraton/ who delivered it En the Forensic Science Laboratoiy on 10.9.1986. ConstabSe Bairaj CEioudary was aiso not examined by the prosecution to expialn the deiay 9 days in dellvering the packet containing the cannabls piants at the Forensic Science Laboratory. There is absoiutely no materiai on record to show as to between the period 2.S.1996 and 10.9.1996 the seaied packet 'was handled by whom and in what manner. The possibiSIty that during thls period the contents of the packet might have changed hands can also not be ruled out. !t is aiso pertinent to note that Rampratap (PWn 3), the Independent witness of seizure did not support the prosecutEon story and was deciared hostlie by the prosecution. As already disc-ussed above, the testimony of the other witness Ramprasad does not rule out the possibEIIty that the cannabis piants had sprouted due to naturaE growth and not as a result ofcuitivation bythe appeilant (10) Having thus considered the rivai submissions and for the reasons mentloned above, I am of the considered opinlon that the prosecution has falled to estabiish beyond reasonabie doubt that the accused had undertaken cultlvation of cannabis plants or that cannabis were seized from his conscious and exciusive possession. Convlction of the appeSIant and the sentence awarded by the Eearned triai Judge deserves to be set aside. (11) In the result, the appeai is allowed. Convictlon ofthe appeiiant under Section 20 (a) (b) (i) of the Act and the sentence awarded onJL. thereunder by the 'searned Additlona! District Judge, Baikunthpur j^ set aside. The appeliant is acquitted of the charge and shail be released from custody forthwith. Sd/- Dilip Raosaheb Deshmukh Judge