Allowed

Shanmbhoo Ram Patel v. State of Chhattisgarh

Chhattisgarh HC14 Apr 2018CRA/1252/2002

Case brief

AI extract

What is this about?

This judicial review arose as a criminal appeal against conviction and sentencing for cultivation of cannabis under the NDPS Act. The High Court held that mere possession of the badi where plants were found did not establish cultivation. Conviction was quashed as prosecution failed to prove the plants were cultivated by the appellant rather than sprouting naturally.

What did the court decide?

The impugned judgment of conviction and sentencing was set aside. The appellant was acquitted of the charge of cultivation of cannabis plants.

Shanmbhoo Ram Patel Vs State of Chhattisgarh — Narcotics (NDPS) | Chhattisgarh HC (2018)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1252 of 2002

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(Arising out of judgment dated 19.10.2002 in Special Case No.22/2002 of the learned Special Judge, NDPS Act, Bastar at Jagdalpur)

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Shambhuram S/o Mehtar Patel, aged about 35 years, OccupationLabour, R/o Village Pandarpuri, Police Station Bhanupratappur, District Kanker (CG)

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---- Appellant

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Versus

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State of Chhattisgarh, through Police Station Bhanupratappur

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---- Respondent

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For Appellant: Ms Smiti Shrivastava, Advocate For State/Respondent: Mr.R.N.Pusty, Govt.Advocate, Mr.Anand Dadariya, Dy.Govt.Advocate and Mr.Avinash Singh, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment On Board

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14/04/2018

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This criminal appeal is directed against the judgment of conviction and order of sentence dated 19.10.2002 passed by the Special Judge under N.D.P.S.Act, Bastar at Jagdalpur in Special Case No.22/2002, whereby learned Special Judge has convicted the appellant for the offence under Section 20 (a) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as “NDPS Act”) and sentenced him to undergo RI for three years and fine of ₹10,000/-, in default of payment of fine to further undergo RI for nine months.

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Case of the prosecution is that on 24.7.2002 Mr.Ravindra Upadhyay (PW-5) while posted as Station House Officer at Police Station Bhanupratappur received a secret information from informant that the appellant had cultivated cannabis plants in his badi. He registered Rojnamacha Sanha vide Ex.P/16 and also prepared panchnama vide Ex.P/1 and sent information to the Sub Divisional Officer (P), Bhanupratappur and reached to the spot at village Pandarpuri and served a notice to the appellant under Section 50 of the NDPS Act for conducting search and informed him that he has a right to be searched in presence of the Gazetted Officer or the Magistrate, to which the appellant consented to be searched by Mr.Ravindra Upadhyay (PW-5). It is further case of the prosecution that in presence of witnesses, he searched badi of the appellant vide Ex.P/10 and seized 10 cannabis plants (7+3) from badi of the accused/appellant, which were identified by the witnesses and were measured vide Ex.P/4. The said cannabis plants were kept in two polythene bags and sealed vide Ex.P/5. Seizure memo was prepared vide Ex.P/6. Nazri naksha was prepared vide Ex.P/22. The accused/appellant was arrested vide Ex.P/23. On the basis of dehati nalishi, First Information Report No.128/02 was registered vide Ex.P/29. Seized articles were sent for Forensic Science Laboratory for test and report was received vide Ex.P/33 holding the plants to be cannabis plants. After completion of investigation, charge-sheet was filed before the jurisdictional criminal Court for offence under Section 20 (a) (i) of

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the NDPS Act. The appellant abjured guilt and entered into defence and pleaded that he is not in possession of the house only, badi is not in his possession from where cannabis plants were seized and badi has a public road. He has not committed any offence and he has falsely been implicated in crime in question.

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In order to bring home the offence, the prosecution examined as many as 5 witnesses and exhibited 34 documents Exs.P-1 to P-34. Statement of the accused under Section 313 of the CrPC was recorded in which he denied guilt. However, he examined none in his defence.

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The Special Judge after appreciating oral and documentary evidence available on record convicted the appellant for the offence under Section 20 (a) (i) of the NDPS Act and sentenced him as mentioned in opening paragraph of this judgment.

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Ms Smiti Shrivastava, learned counsel for the appellant, would submit that the prosecution did not prove that the appellant had cultivated cannabis plants and cannabis plants were seized from badi which was not in possession of the appellant and was not owned by the appellant. Admittedly, exclusive ownership and possession of the appellant has not been proved over the said badi and it is quite reasonable that cannabis plants may sprout naturally, therefore, the appellant is entitled to be acquitted of the charge framed against him.

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On the other hand, learned State Counsel would submit that

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conviction recorded and sentenced awarded is strictly in accordance with law and no interference is warranted.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and went through the record with utmost circumspection.

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The only question to be raised and to be determined in this regard is whether the appellant had cultivated prohibited cannabis plants in the badi alleged to be in his possession.

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Learned Special Judge has convicted the appellant on the basis though the badi was not owned by the appellant but possessed by the appellant and cannabis plants were recovered from the said badi, therefore, the appellant has rightly been held guilty on the basis of statements of Investigating Officer Mr.Ravindra Upadhyay (PW-5) and Halka Patwari Dev Singh Dhruw (PW-3).

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The question would be whether mere possession of the accused of the said badi, the prosecution has proved the charge under Section 20 (a) (i) of the NDPS Act. The Supreme Court in the matter of Alakh Ram v. State of U.P. 1 has clearly held that in order to prove the guilt, it must be proved that accused cultivated this prohibited plant and it is not enough that few plants were found in the property of accused. Their Lordships pointed out as under:-

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“4. We heard the appellant's counsel and the counsel for the respondent. Under Section 8(b) of the NDPS Act, cultivation of opium poppy or any cannabis plant is prohibited and under Section 20 of the NDPS Act, such cultivation of cannabis plant is

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1 AIR 2004 SC 2907

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made punishable with imprisonment and fine. In order to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happened to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation.”

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The above-stated judgment i.e. Alakh Ram (supra) has been followed with approval by this Court in Bhawan Sai v. State of M.P. (Now C.G.) 2 and Dhal Singh v. State of C.G. 3.

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In the instant case, the only evidence brought on record and extensively relied upon by the Special Judge is that the appellant was in possession of badi in question from where cannabis plants were seized. There is no evidence on record to hold that the appellant had cultivated the prohibited plants of cannabis. Even otherwise, learned Special Judge has also held that the appellant is not owner of the said badi. The Supreme Court in Alakh Ram (supra) has clearly held that there must be clear evidence on record that the accused has cultivated ganja plants and also held that they may have been sprouted thereby in natural process.

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In the instant case, the prosecution has failed to bring the evidence on record to hold that cannabis plants were cultivated by the appellant alone and have not sprouted by natural process. Therefore, in the considered opinion of this Court, the Special

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2 2009(1) C.G.L.J. 381

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3 2012(4) C.G.L.J. 46

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Judge is absolutely unjustified in convicting the appellant for the offence under Section 20 (a) (i) of the NDPS Act.

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In the result, the criminal appeal is allowed. Impugned judgment dated 19.10.2002 passed by the Special Judge under NDPS Act, Bastar at Jagdalpur in Special Case No.22/2002 convicting and sentencing the appellant for the offence under Section 20 (a) (i) of the NDPS Act is hereby set aside. The accused/appellant is acquitted of the said charge levelled against him. He is reported to be on bail. He need not surrender. However, his bail bonds shall remain in operation for a period of six months as per the provisions contained in Section 437-A of the CrPC.

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Sd/-

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(Sanjay K. Agrawal) Judge

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B/-

Shanmbhoo Ram Patel v. State of Chhattisgarh

Case brief

What is this about?

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Shanmbhoo Ram Patel v. State of Chhattisgarh

Case brief

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