Full Judgment
P.K. Patra, J.
1. The appellant has challenged the judgment dated 30-11-1998 passed by Shti H. C. Mohapatra, Additional Sessions Judge, Koraput, Jeypore; in T. R. No. 41 of 1997 convicting him under section 20(a) of the Narcotic Drugs and Psychorropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for two years aud to pay of fine of Rs. 3.000.00, in default to undergo rigorous imprisonment for a further period of three months.
2. Prosecution case runs as follows :--
On 26-7-1997 p w. 4, the'S. I. of Excise, Jeypore, in charge of Nandapur, was performing patrol duty with Excise Constable p. w. 3 and two other Excise Constables of Nandspur and at about 1 p. m. he got information that the appellant had cultivated cannabis plants on his land in village Hadiguda under Nandapur Police Station in the district of Koraput. After receiving the information p. w. 4 and the three Excise Constables proceeded to village Hadiguda and found standing cannabis plants on the land and the appellant was watchig the said plants sitting inside a hut. P, w. 4 asked the appellant to exercise his option to be searched before a gazetted officer or an Executive Magistrate but the appellant declined to exercise his option and admitted to have grown the cannabis plants in his land P w. 4 called two witnesses and got the cannabis plants uprooted from the land which were ninetysix (96) in number, out of which fortyseven wete of six feec high, twentyeight were of four feet six inches high and twentyone were of three feet six inches high. The cannabis plants were kept in three bundles according to height, keping one plant from each bundle as sample. The plant bundles and the three sample plants were sealed separately by putting paper slips and using wax and impressing personal seal of p. w, 4. The cannabis plants were seized under the seizure-list Ext. 1. The appellant and the seized cannabis plants as also the sample plants were produced before theS. D. J. M., Koraput on 26-7-1997 and the appellant was remanded to jail custody. P. w. 4 was directed to produce the seized plants before the Sessions Judge, Koraput, Jeypore. Accordingly, on 27-7-1997 p. w. 4 produced the seized cannabis plants before the Sessions Judge, Koraput, Jeypore keeping the samples in his custody and the samples were produced before the S. D. J. M., Koraput on 28-7-1997 with prayer to send the same for chemical examination and the same were accordingly sent to the S.F.S.L., Bhubaneswar on the same day by the S.D.J.M., Koraput, vide his Memo. No. 1368 dated 28-7-1997. The chemical examiner's report (Ext. 3) confirmed the samples to be cannabis plants. After completion of investigation p. w. 4 submitted prosecution report against the appellant who stood his trial.
3. The defence plea is one of denial.
4. In order to bring home the charge against the appellant, prosecution has examined four witnesses, of whom p. ws. 1 and 2 are two independent witnesses to the seizure who have not supported the prosecution case, p. w. 4 is the S. I. of Excise who detected the case and p. w. 3 is the Excise Constable who accompanied p. w. 4 during detection. Defence has examined none.
5. Mr. P. K, Mohapa'tra, learned counsel for the appellant, and the learned Additional Government Advocate appearing for the State were heard at length. Mr. Mohapatra assailed the judgment of the learned Additional Sessipns Judge contending that the learned Additional Sessions Judge has failed to properly appreciate the evidence on record and has come to the erroneous conclusion that Ganja plants had been grown by the appellant in his land and that rejection of the defence contention regarding non-compliance of the mandatory provisions of the Act was illegal. The learned Additional Government Advocate supported the impugned judgment contending that the findings of the learned Additional Sessions Judge are not erroneous and cannot be held to be unsustainable. The rival contentions require careful consideration.
6. Learned Additional Sessions Judge has placed reliance on the statements of p.ws. 3 and 4 to reach the conclusion that the appellant had grown the Ganja plants in his land. P. ws. 1 and 2 who are two independent witnesses of the same village have not supported the prosecution case and have denied seizure of Ganja plants in their presence from the land of the appellant. They have stated to have put their signatures in the seizure-list at the instance of the Excise officers and in their statements in cross-examination they have stated that the appellant had no land of his own and he was living on begging. In the above circumstances, the state ments of the official witnesses, p. ws. 3 and 4, require careful scrutiny before placing any reliance on them to base a conviction of the appellant, in view of the decision in Md. Razzak Pathan and others v. State of Maharashtra. reported in 1995(1) Crimes 207, wherein it has been held that for the offences under the Act when charges are serious and punishments are heavy, the degree of proof must necessarily pass a high test of scrutiny and must exclude all other possibilities. Further, in the case of Jadwnani Sahu v. State, reported in 1997(3) Crimes 436, where there was recovery of opium on search of the house jointly recorded in the names of several persons, it has been held that prosecution should have given specific evidence to indicate about the actual possession of the disputed house by examining the co-sharers and co-villagers of the accused.
7. In the instant case, p. ws, 1 and 2, the co-villagers of the' appellant, have stated that the appellant had no landed ptoperty of his own and he was living on begging and the Ganja plants were not seized in their presence. P. ws. 3 and 4, the two official witnesses, have not been able to give the particulars of the land in question and no documentary evidence has been adduced to prove that the land in question belonged to the appellant. There is no evidence on record to show that the appellant had grown the Ganja plants on the land in question, P. ws, 3 and 4 have stated to have visited the village for the first time and they cannot be expected to know to whom the land in question belonged and who was in possession of the same. P. w. 4would have done well to requisition the services of a revenue officer to verify the record-of-rights of the land in question andto ascertain who was the owner or possessor of the same. But no revenue officer has been examined in support of the prosecution case. Thetefore, it cannot be held that the appellant was the owner in possession of the land in question and that he had grown the Ganja plants thereon. Therefore, it will be quite unsafe to place reliance on tbe statements of p. ws. 3 and 4 to base a conviction of the appellant. That apart, learned Additional Sessions Judge has erred in law in rejecting the contention of the defence counsel regarding non-compliance of the mandatory provisions of the Act entitling the appellant to acquittal. Admittedly p w, 4 did not reduce the information to writing as required under section 42 of the Act and he has not informed his immediate official superior before proceeding for search and seizure or after the search, seizure and arrest. The seal which was used for sealing the seized Ganja plants and the samples was not handed over to any independent witness and has not been produced in court. Further, the seized articles were not kept in charge of the O. I. C. of the nearest police station. Hence evidently there was non-compliance of the provisions of sections 42 (1) and (2), 52, 55 and 57 of the Act. In the case of Thandi Ram v. State of Haryana, reported in J. T. 1999(3) S. C. 231, the Apes Court referred to two earlier judgments of the said Court in State of Punjab v. Balbir Singh, reported in J. T. 1994(2) S. C. 108 and Mohinder Kitmar v. State, Panaji, Goa, reported in A. I, R. 1995 S. C. 1157, and have held that for non-compliance of the provisions of sections 50, 52, 55 and 56 of the Act, conviction of the accused cannot be sustained and he will be entitled to acquittal. 8. Keeping in view the decisions referred to above and in view of the discussions made above, the inevitable conclusion will be that the prosecution has failed to establish by cogent and convincing evidence that the appellant had grown the Ganja plants in his land and that Ganja plnnts had been seized from the possession of the appellant. Hence the conviction of the appellant cannot be sustained and is liable to be set aside and he will be entitled to acquittal.
9. In the result, the Jail Criminal Appeal is allowed. The conviction of the appellant under section 20(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the sentence inflicted thereunder in the impugned judgment dated 30-11-1998 passed by the Additional Sessions Judge, Koraput, Jeypore in T. R. No. 41 of 1997 are set aside. The appellant is found not guilty of the charge and is acquitted. He be set at liberty forthwith if his detention is not required in connection with any other case.
10. Jail Crl. appeal allowed.