Full Judgment
THE HIGH COURT OF MADHYA PRADESH : JABALPUR Cri. Appeal No.1608/2008 Vinot Kumar, son of Girja Shankar Dubey aged about 27 years, resident of Gram Byavra Distt. Hoshangabad, Presently residing at Ganesh Talai, Khandwa …Appellant vs. State of M.P., through SHO P.S. Moghat Road, Distt. Khandwa …Respondent ------------------------------------------------------------------------------------------- Shri Harpreet Ruprah, Advocate for the appellant. Shri Akshya Namdeo, P.L. for the respondent-State. and Cri. Appeal No.1708/2008 Rakesh alias Ramesh, son of Arjun Malakar aged about 23 years, Resident of Ward No.2, Ganesh Talai Khandwa …Appellant vs. State of M.P., through SHO P.S. Moghat Road, Distt. Khandwa …Respondent ------------------------------------------------------------------------------------------- Shri K.S. Rajput, Advocate for the appellant. Shri Akshya Namdeo, P.L. for the respondent-State. JUDGMENT
(9.1.2013) These appeals are interlinked as preferred against the judgment dated 24th of July, 2008 passed by the Special Judge [under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’)]. at Khandwa in Special Case No.3/07 whereby each one of the appellants was convicted under Section 8(b) read with 20(a)(i) of the Act and sentenced to undergo R.I. for 8 years and to pay a fine of Rs.1 lakh and in default, to suffer R.I. for 1 year. ::
2. :: Cri. Appeal Nos.1608/08 and 1708/08 2. Prosecution story, in short, is that on 9.3.2007 at about 2.30 p.m., while patrolling, Tukaram Lokhande (PW8) posted as SHO of P.S. Moghat Road in Khandwa, received a credible information to the effect that plants of Ganja were grown in the garden located in the Civil Hospital premises. Along with other members of the police force, he immediately proceeded to the spot where Gangacharan Tiwari (PW1) and Bijulal (PW7) were called to witness the proceedings. Rakesh @ Ramesh, the appellant in Cri. Appeal No.1708/08, who was employed by Vinot Kumar, the appellant in Cri. Appeal No.1608/08, for the purpose of looking after the garden, was found there. After obtaining his consent, the garden was duly inspected. As many as 9 plants of the contraband, reaching height of 1-3 ft., were found grown. The plants were uprooted, seized and two samples were drawn and one of the samples was forwarded to FSL, Rau for chemical examination. Corresponding report (Ex.P-26) indicated that the same was that of Ganja plants. Investigation revealed that contract for maintenance of the garden was awarded by the Rogi Kalyan Samiti headed by the Civil Surgeon to M/s Shubham Security Services, Ganeshganj Khandwa, run by appellant Vinot Kumar as Director thereof.
3. Appellants abjured the guilt and pleaded false implication. According to appellant Vinod, at the relevant point of time, he had been working as Security Guard in the Beed Branch of Dena Bank whereas appellant Rakesh came forward with the defence that while suffering from weak eye sight, he had not been able to identify the prohibited plants. In support of the defence, S.K. Laad (DW1), the eye specialist, and Muktikant (DW2), the officer posted at Dena Bank, were called in evidence. ::
3. :: Cri. Appeal Nos.1608/08 and 1708/08 4. Detecting Officer Tukaram Lokhande (PW8) substantially reiterated the facts as recorded in the FIR (Ex.P-19) immediately after seizure of the Ganja plants dislodged from the garden of the Hospital. According to him, after communicating the information as to raising of the prohibited plants to the CSP by way of a memo, copy of which is placed on record as Ex.P- 14, through constable Manish Tripathi (PW3), he along with other members of the police force, proceeded to the garden where 9 plants in all, of the contraband, were found grown. Although his assertion that the appellant Rakesh was watering the plants was inconsistent with the recitals of the FIR yet, presence of the appellant as the gardener in-charge stood duly established from his evidence. Bijulal (PW7), one of the panch witnesses to the proceedings of search and seizure of the Ganja plants, though declared hostile, corroborated the contents of Panchnamas regarding consent of appellant Rakesh, identification, uprooting and counting of the plants and drawing of the samples (Ex.P-3, P-4, P-5 and P-7).
5. Tukaram Lokhande further deposed that he had not only seized all the 9 plants but had also taken out two of them as sample. Corresponding panchnama (Ex.P-9) was also tendered in evidence. As per his statement, in answer to the query made by him, the Civil Surgeon by way of letter (Ex.P-21) informed that contract for maintenance of the garden for the period form 1.10.2006 to 31.3.2007 had been given to M/s Shubham Security Services, Ganeshganj Khandwa through its Director viz. appellant Vinot Kumar. Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in securing the conviction of the appellants for any extraneous motive. ::
4. :: Cri. Appeal Nos.1608/08 and 1708/08 6. Constable Mahboob Khan (PW4) substantiated the fact that he had taken a sealed packet containing sample to the FSL, Rau for chemical examination. As pointed out already, relevant report (Ex.P-26) was to the effect that the sample was a cannabis plant.
7. Since the offence does not affect any private individual but the society at large, non-corroborative evidence of other independent witnesses namely Gangacharan (PW1) and Ashok (PW5) did not assume any significance.
8. In the light of the overwhelming incriminating evidence on record, learned trial Judge did not commit any illegality in holding that as many as 9 Ganja plants were found grown in the garden being looked after by appellant Rakesh, employed by appellant Vinot Kumar. However, he completely misdirected himself in concluding that the plants were cultivated by the appellants as the following circumstances were suggestive of the inference that the plants may have sprouted there by natural process and the appellants might not have been diligent in destroying the plants : - (i) As indicated in the spot map (Ex.P-24) prepared by Ramesh Puri (PW9), the DSP, the plants were not found grown in a row but were located in different furrows containing 5, 2 and 2 of them. (ii) Detecting Officer Tukaram Lokhande (PW8) clearly admitted that relatives and attendants to the patients used to have their food and take rest inside the garden. ::
5. :: Cri. Appeal Nos.1608/08 and 1708/08 (iii) Tukaram Lokhande as well as Ramesh Puri, also agreed with the suggestion that public at large had access to the Sai Temple situated adjacent to the garden.
9. “Cultivation”. means the act of raising or growing plants, especially on a large scale. Further, as explained by the Supreme Court in Alakh Ram v. State of U.P. AIR 200.SC 2907.to constitute the offence of illicit cultivation of the cannabis plants, it must be established that the accused had cultivated the plants and in substantial quantity. Accordingly, the impugned conviction deserves to be interfered with.
10. Consequently, the appeals are allowed. The conviction in question and consequent sentences are hereby set aside. Instead, the appellants are acquitted of the offence.
11. Rakesh @ Ramesh, the appellant in Cr.A. No.1708/08 is in custody. He shall be released forthwith, if not required in any other case. Appeals allowed. (R.C. MISHRA) JUDGE 9 1.2013