HIGH COURT OF MADHYA PRADESH : JABALPUR Cri. Appeal No.2279/1996 Killu, aged 50 years, son of Baldeva Kachhi, Resident Of Village Jaitpur, P.S. Kishangarh, Distt. Chhatarpur …Appellant vs. State of M.P., through SHO P.S. Kishangarh, Distt. Chhatarpur …Respondent ………………………………………………………….……………………………………………………………………………….……………………………… Shri Shyam Vishwakarma, Advocate for the appellant. Shri Ajay Tamrakar, P.L. for respondent-State. JUDGMENT
(8/1/13) The appellant stands convicted under Section 8 read with 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1 lakh and in default, to suffer R.I. for 2 years. Corresponding judgment dated 12.12.1996 passed by Special Judge (under the Act), Chhatarpur, in Special Case No.36/96 is the subject matter of challenge in this appeal.
2. Prosecution story, in short, is that on 9/3/1996 at about 12.30 p.m., on being informed that appellant was involved in an illegal cultivation of opium poppy on the field located in front of his house in Village Jaitpur, G.D. Soni (PW4) posted as ASI at P.S. Kishangarh, inspected the spot, in presence of Sita Ram Tiwari (PW7) and Jhunnilal (PW6). As many as 24 plants of the contraband, about 1-2½ hand high, were found grown in appellant’s field, forming part of the land, bearing survey number 627/2. He prepared a Panchnama (Ex.P/13) and communicated the corresponding information to Prafull ::
2. :: Cri. Appeal No.2279/1996 Shrivastava (PW3), the S.H.O., by way of a letter. In turn, Prafull Shrivastava proceeded to the spot along with Constable Ompratap Khare and panch witnesses Kunji (PW1) and Ram Prasad (PW2). The plants were duly seized and forwarded to FSL, Sagar for chemical examination. Relevant report (Ex.P/9) indicated that the same were opium plants laden with poppy capsules.
3. The appellant abjured the guilt and pleaded false implication at the behest of Prafull Shrivastava (PW3) upon his refusal to pay money for releasing his son, who was illegally detained as one of the suspects in connection with theft in the house of Mohanlal Kachhi. In support of the defence, a co- villager namely Navla (DW1) was called in evidence.
4. Prosecution sought to prove the charge by examining as many as 7 witnesses. However, Jhunnilal (PW6) and Sitaram Tiwari (PW7), the witnesses to Panchnama (Ex.P/13) said to have been prepared by G.D. Soni (PW4) as well as Kunji (PW1) and Ram Prasad (PW2), the witnesses to the seizure memo (Ex.P/1), did not corroborate the contents thereof. Moreover, Patwari namely Rajmani Mishra (PW5), while corroborating the fact that in the Khasra (Ex.P/15), name of the appellant was recorded as Bhumiswami in possession of the land, bearing Khasra No.627/2, clearly admitted that he had not seen any prohibited plant on the corresponding part of the land. Thus, the case of the prosecution hinged on evidence of the Police Officers viz. Prafull Shrivastava (PW3) and G.D. Soni (PW4).
5. Detecting Officer Prafull Shrivastava (PW3) reiterated the facts as recorded in FIR (Ex.P/7) lodged immediately after the ::
3. :: Cri. Appeal No.2279/1996 seizure of the plants. His evidence drew support from the statement of G.D. Soni (PW4).
6. However, no explanation was furnished for calling the SHO to the spot in view of the fact that by virtue of Notification not B-6-35-VSR-85-4801 dated 11-11-1985 issued by the State of M.P. in exercise of the powers conferred by sub-section (2) of Section 41 of the Act, G.D. Soni, being an ASI, was competent under the Act for carrying out the search/seizure as well as for holding the investigation. The letter said to have been sent by the ASI to the SHO was also not tendered in evidence. Further, G.D. Soni clearly admitted that the seizure memo, arrest memo and spot map (Ex.P/1, P/2 and P/3 respectively) were scribed by him only. Although, Prafull Shrivastava asserted that all these documents were prepared by G.D. Soni on his directions, as being injured, he was not able to write yet no such remark was made thereon. This apart, in the spot map (Ex.P/3), the plants of the contraband were shown as being grown with the plants of Saunf and Ajwain whereas Rajmani Mishra (PW5), the Patwari categorically deposed that on the land possessed by the appellant, he had found plants of Onion, Potato, Tomato and Maithi only.
7. In the light of these infirmities in the evidence of the police officers, on one hand, entire proceedings relating to search and seizure of the opium plants were shrouded with suspicion and on the other, there was no cogent evidence to show that the land where the plants were found to be grown, was in exclusive possession of the appellant. 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 ::
4. :: Cri. Appeal No.2279/1996 cultivation of the cannabis plants, it must be established that the accused had cultivated the plants and in substantial quantity. Having regard to the number of plants and their average length, it cannot be said that these plants had been voluntarily cultivated. For these reasons, the impugned conviction deserves to be interfered with.
8. Consequently, the appeal is allowed. The impugned conviction and consequent sentences are hereby set aside. Instead, the appellant is acquitted of the charge. Fine amount, if deposited, be refunded to him.
9. Appellant Killu is on bail. His bail bonds shall stand discharged. Appeal allowed. (R.C. Mishra) JUDGE 8 1/13